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37 MASON STREET - BUILDING INSPECTION n�� CO IT (#�34 9�/MR1EW" ELIZABETH M. RENNARD CITY OF SALEM JERALD A. PARISELLA City Solicitor KIMBERLEY L. DRISCOLL, MAYOR Assistant City Solicitor 93 Washington Street One School Street Salem, MA 01970 Beverly, MA 01915 Tel: 978.619.5631 LEGAL DEPARTMENT Tel:978.921.1990 Fax:978.744.1279 93 WASHINGTON STREET Fax:978.921.4553 Email:brennard@salem.com SALEM, MASSACHUSETTS 01970 Email:jap@alexanderlemino.com TO: Richard Rennard; Thomas St. Pierre; and David Knowlton. FROM: John Paul Bosse th RE: 37 Mason Street. 41 Mason Street General Release DATE: February 20, 2008 Gentlemen, please review the General Release with regard to 37 Mason Street, owned by Joseph and Silvana White. Also, please see Tom St. Pierre's letter. It is important that you keep a copy of this paperwork on file within your respective departments in case future claims are filed against the City. Thank you. Any concerns please contact me. GENERAL RELEASE Joseph and Silvana White (hereinafter the "Releasors"), of 37 Mason Street in Salem, Massachusetts, for and in consideration of payment in the sum of Six Thousand United States Dollars and no cents ($6,000.00), as paid by the Redland Insurance Company on behalf of the City of Salem, Massachusetts, and in further consideration of the delivery of a signed letter from the City of Salem outlining the City of Salem's position regarding certain code violations by Bing Realty Trust relative to its improvement of land located at 41 Mason Street in Salem, Massachusetts, hereby release and forever discharge the City of Salem, Massamont Insurance Agency, Inc., the Redland Insurance Company and all of their officers, directors, principals, members, shareholders, agents, servants, parent companies, subsidiaries, affiliates, divisions, agencies, branches, employees and attorneys, both present and former (hereinafter the "Releasees") from all liability, claims, actions, liens, damages, lawsuits or proceedings of any type or sort whatsoever concerning, pertaining or in any way relating to the events, accidents or incidents that occurred on or about August 21, 2004 at their property located at 37 Mason Street, Salem, Massachusetts, which event the Releasors claim caused and continues to cause damage to their property. This General Release applies to those claims that were alleged, could have been alleged or that are related to the events as alleged in a lawsuit entitled Joseph and Silvana White v. Citv of Salem and Stephen Haley as Trustee of Bing Realty Trust, Massachusetts Superior Court, Essex County, docket number ESCV2006-021 R4. Releasors hereby confirm that they understand and agree that the release set forth in the preceding paragraphs is, and is intended to be, a full, final and complete release of the Releasees with respect to all damages. known and unknown, sustained by, or which have yet to be sustained Page 1 of 4 by Releasors by reason of the alleged acts, omissions, events, accident or incident as alleged in the aforementioned action. Releasors acknowledge that they understand that, after the date of this release, their damages and losses alleged in the above-referenced action may turn out to be more severe or different than the Releasors now believe them to be, or that damages of which Releasors are now unaware may become apparent, and that, by signing this release, Releasors are accepting that risk and giving up any right to seek further monies from, or otherwise to assert any claim or demand against, Releasees. The parties agree that nothing in this release is intended to excuse the Releasees from their future obligations at law relative to the maintenance of their storm water drainage system on or near Mason Street in Salem, Massachusetts, and that this Release is intended only to release the Releasees from past, present or future damages attributable to the same cause or causes as those alleged or that could have been alleged in the aforementioned action. As a further condition of this release, the Releasors agree to stipulate to the dismissal of any and all lawsuits involving Releasees arising out of this same transaction or occurrence as alleged in the aforementioned action, with prejudice and without costs and legal fees taxed to Releasees, and to participate and cooperate with the Releasees to the greatest extent possible to effect the immediate dismissal of any and all such lawsuits. The Releasors further agree to defend, indemnify and hold harmless the Releasees against any lawsuit brought by Releasors in violation of this General Release. This release expresses a full and complete SETTLEMENT of a liability claimed and denied, and regardless of the adequacy of the above consideration, the acceptance of this release shall not operate as an admission of liability on the part of anyone. The Releasors acknowledge that this Page 2 of 4 settlement is of a disputed claim, and that by entering into this settlement, the Releasees wish only to avoid the cost of further litigation. Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors, administrators, personal or legal representatives, predecessors in interest, successors and assigns" had been inserted after each and every such designation, and all the terms, covenants and conditions herein contained shall be for and shall inure to the benefit and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, predecessors in interest, successors and assigns. The Releasors state that, prior to executing this General Release, the Releasors carefully read the General Release and know of and understand its terms and provisions. The Releasors further agree and state that Releasors has had the benefit of assistance of counsel in negotiating the agreements reflected in this release and in reviewing this General Release. This General Release contains the entire agreement between the parties, and the Releasors agree that there are no promises, express or implied, that are not contained in this agreement, upon which they relied. The Releasors agree that should any one part of this Release be rendered unenforceable at law or in equity, the remainder shall retain full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and seal this__ day of 2007. Signed under the pains and penalties of perjury: Page 3 of 4 J J _ Signature: eph tWhite te Y Signature: Si vana WITNESSED: Printed Name: Page 4 of 4 �ONDITq qO CITY OF SALEM, MASSACHUSETTS PUBLIC PROPERTY DEPARTMENT ' 120 WASHINGTON STREET, 3RD FLOOR a g Q SALEM, MASSACHUSETTS 01970 TELEPHONE: 978-745-9595 EXT. 380 ���nrrNe Do�P FAX 978-740-9846 KIMBERLEY DRISCOLL MAYOR November 21, 2007 ! Nil/ 2 8 2007 � Marc D. Padellaro, Esq. ! / DS�Uy�B MONAHAN & PADELLARO 43 Thorndike Street Cambridge, MA 02141 Re: Joseph White, et al. vs. City of Salem, et al. Civil Action No: ESCV2006-02184-C Our File No. 164-0404682 Dear Attorney Padellaro: Please accept this letter outlining the code and ordinance issues underlying the construction job at 41 Mason Street, owned by co-defendant Bing Realty Trust. On or around March 24, 2004, Bing Realty Trust was granted a Building Permit to build a 3000 square foot addition to its property located at 41 Mason Street (copy enclosed). Under Salem Zoning Ordinance, Art. VII, § 7-18(a), entitled"Supplemental Regulations," a"Site Plan Review" was not required to be submitted to or approved by the Planning Board. That Ordinance requires City approval of plans and careful oversight of construction as it progresses, but applies only to a structure of 10,000 square feet or more (copy of§ 7-18(a) enclosed). Because the addition was only 3000 square feet, the Ordinance did not apply and the City was not required to oversee the Site. The plans submitted by Bine Realty Trust to the Building Department for the original Building Permit showed that there would be a new parking area, but did not reflect any change in elevation for this parking area. Bing Realty Trust also requested certain set-back and parking variances, and in furtherance of this pursuit, submitted plans to the Zoning Board of Appeals. Those plans also reflected no change in grade relative to the parking area. The variances were granted subject to Bing Realty Trust's compliance with all other Ordinances and laws. Bing Realty Trust forged ahead with the construction, and unbeknownst to the City, built up the land behind your clients' home located at 37 Mason Street when building the parking area. This parking lot also included a retaining wall along the rear property line of your client's property, presumably to accommodate and secure the abrupt change in grade. Bing Realty Trust did not obtain the proper permits to build up the land for this parking 1 lot or to build this retaining wall, and this was done without the City's knowledge or approval. As noted above, the plans submitted to the City did not reveal Bing Realty Trust's intentions in these respects, and the project was not big enough to warrant City oversight. Thus the City had no knowledge or reason to know what Bing Realty Trust was doing with the land grade. Most significantly, Article VI of the City of Salem Code of Ordinances required that Bing Realty Trust obtain a Drain Alteration Permit before building up the land behind your client's property in the manner which it did(copy of Art. VI, §§ 38-287 to 38-290 enclosed). This Ordinance requires careful oversight and approval by the City's Engineer before such plans can go forward. Because the parking lot is downgrade from your client's property, and would quite clearly alter the flow of groundwater drainage heading towards the Canal, the City Engineering Department is prepared to testify that it never would have allowed this parking lot to be built absent careful consideration and abatement of any problems relative to the disruption of drainage. It is the City's position that Bing Realty Trust's violation of Article VI of the City of Salem Code of Ordinances is the sole cause of the reported damage to your client's property. Specifically, because of the change in grade and the presence of the retaining wall, the groundwater that used to run across your client's property and into the Canal now pools onto your client's property during certain weather events, causing your client's property to flood. In contrast, nothing has been changed in the City's wastewater system that would explain the sudden events at your client's property since the lot and wall was built. The City's Engineering Department has carefully observed all of the circumstances of your client's case, including but not limited to the land grades, the parking structure, the retaining wall and the relationship between the timing of the flooding events and the lot construction, and is quite confident that the problems are entirely attributable to Bing Realty Trust's project. As you know, for good measure the City DPW also conducted a careful inspection of the wastewater system on Mason Street, including a manual, video-recorded survey of the entire length of 4' diameter drainage pipe running from Mason Street, under your client's property and into the Canal. That recorded inspection has conclusively shown that there was and is absolutely no obstruction in this system that could be attributed to the problems your client has been experiencing. The City has laws in place that are aimed at preventing occurrences such as the ones involved in your client's case. Unfortunately, the City does not have the resources to oversee every construction project, and cannot ensure any given resident's compliance with those rules of law. Had Bing Realty Trust's plans accurately included the planned changes in the land grade, the issue may have been caught in the Building Department before construction began. Had Bing Realty Trust secured the necessary Drain Alteration Permit, the City Engineer certainly would have recognized the problem and acted accordingly. Unfortunately, neither was done in this case, to the apparent detriment of your client. We hope that this letter helps to shed light upon the City's position as to Bing Realty 2 Trust's violations of City Ordinances during its construction, and the City's position on the causal relationship between Bing Realty Trust's actions and your client's troubles. Very Truly Yours, Thomas St. Pierre Building Commissioner City of Salem 3 J COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAWRENCE SUPERIOR COURT C.A. NO. 06-2184 JOSEPH WHITE and SILVANA WHITE, ) Plaintiff ) ) V. ) CITY OF SALEM and STEPHEN HALEY, ) TRUSTEE OF BING REALTY TRUST ) Defendants ) STIPULATION OF DISMISSAL Now come the defendant, City of Salem, by agreement, pursuant to rule 41(a)(1) of the Massachusetts Rules of Civil Procedure, and requests that this Honorable Court dismiss all claims against said defendant City of Salem, with prejudice and without costs to any party. All rights of appeal are hereby waived. Respectfully submitted, The Defendant, The Plaintiffs, CITY OF SALEM JOSEPH & SILVANA WHITE By its attorneys, By their attorneys alERCE, ITANO,LLP MONAHAN& PADELLARO B04 660832 Marc. D. Padellaro, BBO# 541847 Ten Winthrop Square 43 Thorndike St. Boston, MA 02110 Cambridge, MA 02141 (617) 350-0950 (617) 494-1188 I The Defendant, STEPHEN HALEY & TRUSTEE OF BING REALTY TRUST By its attorneys, LAWO.FF(CE OF ROBER E. NOONAN JonathanM. Wlyife, Esq., 99 Summer t, ste. 1140 Boston, M 02110 (617) 737-_975 CERTIFICATE OF SERVICE I hereby certify that on.this day a true copy of the above document was served upon each attorney of record,or prose litigant,by mail/by hand. 7 Date 2 Cttp of *alem, Iflaaacbugettg j9ublic Prupertp Mepartment AW!IDing ]Department (One Opalem Breen 745-9595 (Ext. 380 William H. Munroe Director of Public Property Inspector of Buildings Zoning Enforcement Officer May 30, 1990 Mr. Scott Galber 9 Belleair Drive Swampscott, MA. 01907 RE: 37 Mason Street; Salem, MA. Dear Mr. Galber: It has been brought to the attention of this office that work being performed at the above referenced property is being done without the benefit of a permit. We have posted a Stop-Work order on the property on May 29, 1990. You are in violation of the Massachusetts State Building Code, Section 113.00 (no permit on record) . Please contact this office within seven (7) days of receipt of this letter to correct this violation. Failure to do so will result in this office taking further legal action against you. Sincerely, David J. Harris Assistant Building Inspector DJH/jmh c.c. City Solicitor Ward Councillor i r 1 ORNE REALTY AND INVESTMENT, INC. Residential and Commercial Remodeling MST 30 257 N 915 P. O. BOX 208 RECEIVED SALEM, MASSACHUSETTS 01970 CITY OF SALEM,t4ASS: Telephone 745-8712 ROBERT M.MAGUIRE GEORGE E.MAGUIRE President Treasurer May 30, 1975 City of Salem Building Inspector 5 Broad St. Salem, Mass. Dear Sir: Please be advised that we are fully aware of the deficiencies in the property located at '37 Mason St. , Salem, Mass. which are noted in your report. Upon the purchase of the property, we plan to correct any and all violations with;n30 - 60 days from the date of purchase. Yours very truly George LE Maguire GEM: jm