TRANSFER STATION LEGAL DOCUMENTSKIMBERLEY DRISCOLL
MAYOR
JANET DIONNE
SENIOR SANITARIAN
August 27, 2008
CITY OF SALEM, MASSACHUSETTS
Adorno & Yoss, LLP
c/o Attorney Kenneth F. Whittaker, Ph.D.
155 Federal Street, Suite 1202
Boston, MA 02110-1727
BOARD OF HEALTH
120 WASHINGTON STREET, 4"' FLOOR
TEL. (978) 741-1800
FAX (978) 745-0343
)DIONNE eSALLiM.COM
Dear Attorney Whittaker:
The Salem Board of Health requests your presence at the next Board of Health meeting
for a discussion of the Transfer Station. The meeting will be held Tuesday, September 9, 2008 at
City Hall Annex, 120 Washington Street 3d floor conference room @ 7:30 p.m.
If you have any questions, contact me at 978-741-1800.
Sincerely,
For the Board of Health
an i n or anitarian
D/m p
cc: Paulette Puleo, Chairwoman of the Board of Health and Members
ENGINEERING CONSULTANT AGREEMENT
September 2, 2008
Mr. Dana C. Huff, PE.
Vice President
Tighe and Bond
440 Main Street
Worcester, MA 01680
Dear Mr. Huff:
This letter is intended to record the terms of a master Consultant Agreement between
THE CITY OF SALEM BOARD OF HEALTH, 120 Washington Street, Salem,
Massachusetts 01970 ("Board") and Tighe and Bond, 440 Main Street, Worcester, MA
01680 (Consultant), pursuant to the terms of which Consultant will perform the services
described herein.
1. DUTIES OF CONSULTANT:
Board hereby agrees that as of September 2, 2008, it shall engage Consultant to
provide such Consultant services as are requested by the Board or its designees.
During the term of this Agreement, Consultant shall faithfully perform to the
best of Consultant's ability all tasks and duties assigned, and shall devote to the
performance of such duties a portion of Consultant's working time, attention and
energies.
Consultant shall provide services as described in Board's RFP and Consultant's
proposal dated June 19, 2008, such proposal signed by Consultant and appended
hereto and becoming an integral part of this Agreement.
2. TERM OF THIS AGREEMENT:
Consultant Services shall commence on September 8, 2008, and shall end on the
first to occur of the following events:
(a) the delivery of notice given to Consultant by City that this Agreement is
terminated for breach by Consultant of any of Consultant's obligations
under this Agreement or for unsatisfactory performance by Consultant of
the Consultant Services;
(b) the bankruptcy or insolvency of either party;
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(c) the expiration of ten (10) days after either party has given written notice to
the other of termination of this Agreement without cause.
(d) September 7, 2009.
3. COMPENSATION:
Board agrees to pay Consultant as described in Consultant's Price Proposal dated
June 19, 2008 such proposal signed by Consultant and appended hereto and
becoming an integral part of this Agreement for the performance period of this
Agreement for Consultant Services as have been delivered by Consultant to
Board. Said payments shall be made within thirty (30) days of presentation of
reasonably detailed (monthly) invoices. This service fee shall be the exclusive
form of compensation by Board to Consultant (and to any employees of
Consultant). Except for benefits, if any, resulting from prior employment by
Board, neither Consultant nor any of Consultant's employees shall be eligible to
receive any bonuses, commissions, finders fees, vacations, or other compensation
from Board and shall not be eligible to receive any retirement benefits from
Board, nor to participate in any health, disability or life insurance coverage
provided by Board to its employees. Moreover, Board will not withhold any tax
or social security payments due from Consultant to any governmental taxing
authority. Consultant hereby agrees that Consultant will timely pay all taxes
and fees upon the income earned from Board, and will indemnify and hold
Board and the City of Salem, MA harmless against any claims of any
governmental taxing authority made in connection with the revenue derived
by Consultant pursuant to the terms of this Agreement.
4. NATURE OF RELATIONSHIP.
Nothing in this Agreement shall be construed as establishing the relationship of
employer and employee or the relationship of partners or joint venturers
between the Board or the City of Salem and Consultant; and Consultant shall be
considered for all purposes as an independent contractor. Consultant agrees to
refrain from representing that Consultant is an employee of Board or City of
Salem.
5. NONDISCLOSURE COVENANT:
Consultant agrees that Consultant will not at any time during the term of this
Agreement or after its termination, reveal, divulge, or make known to any
person, firm, corporation or other business organization any credit information
or confidential information whatsoever, whether of the Board, City of Salem, its
employees or its suppliers, used or gained by Consultant during performance of
the Consultant Services. Consultant further covenants and agrees to retain all
such knowledge and information acquired during and after the term of this
2
Agreement respecting such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of Board and City of Salem
and its successors and assigns.
6. OWNERSHIP OF RECORDS AND DOCUMENTS:
All written materials, records and documents made by Consultant or coming
into Consultant's possession during the term of this Agreement concerning any
services, products or processes used, developed, investigated or considered by
Board or City, or otherwise concerning the business affairs of Board or City shall
be the sole property of Board and City, and upon termination of this Agreement,
or upon request of Board or City during the term of this Agreement, Consultant
shall promptly deliver the same to Board and City of Salem.
7. SPECIFIC PERFORMANCE:
Consultant recognizes that irreparable injury will be caused to Board and City by
violating any provisions of Section 4, 5, and 6 of this Agreement; and Consultant
agrees that, in the event of any such violation, the Board and or City in addition
to such other rights and remedies as may exist under this Agreement, may apply
to any court of law or equity having jurisdiction to enforce the specific
performance of the provisions hereof, and may apply for injunctive relief against
any act which would violate any such provisions.
8. INSURANCE COVERAGE:
General - Consultant shall before commencing performance of the Agreement be
responsible for providing and maintaining insurance coverage in force for the
life of the Agreement of the kind and in adequate amounts to secure all of the
obligations under the Agreement and with insurance companies licensed to write
insurance in the Commonwealth of Massachusetts. All such insurance carried
shall not be less than the kinds and amounts designated herein, and the
Consultant agrees that the stipulation herein of the kinds and limits of coverage
shall in no way limit the liability of the Consultant to any such kinds and
amounts of insurance coverage. All policies issued shall indemnify and save
harmless the City of Salem, the Board, its agents and employees from any and all
claims for damages to persons or property as may rise out of the performance of
this Agreement.
Liability Insurance - Consultant shall carry Comprehensive General Liability
Insurance providing for a limit of not less than Five Hundred Thousand Dollars
($500,000.00) for all damages arising out of bodily injury to or death of one
person, and subject to that limit for each person, a total limit of not less than One
Million Dollars ($1,000,000.00) for all damages arising out of bodily injuries or
3
death of two or more persons in any one accident; and Consultant's
Comprehensive Property Damage Liability Insurance providing for a limit of not
less than Five Hundred Thousand Dollars ($500,000.00) for all damages arising
out of injury to or destruction of property in any one accident, and subject to that
limit per accident, a total (or aggregate) limit or not less than One Million Dollars
($1,000,000.00) for all damages arising out of injury to or destruction of property
during the policy period.
Comprehensive Automotive and Property Damage Insurance - Consultant shall
carry Automobile Insurance covering all owned vehicles, hired vehicles or non -
owned vehicles under the control of Consultant while performing work under
the Contract in the amount of not less than Five Hundred Thousand Dollars
($500,000.00) for all damages arising out of bodily injuries to or death of one
person and subject to that limit for each person, a total of not less than One
Million Dollars ($1,000,000.00) for all damages arising out of bodily injuries to or
death of two or more persons in any one accident; and Property Damage
coverage in the amount of not less than Five Hundred Thousand Dollars
($500,000.00) for all damages to or destruction of property.
Consultant must carry Workman's Compensation Insurance in the amounts
prescribed under Massachusetts State Law and meet all other City and State
Laws and Regulations.
No cancellation(s) of such insurance, whether by the insurer or by the insured
party shall be valid unless written notice thereof is given by the parties
proposing cancellation to the other party and to the City of Salem at least fifteen
(15) days prior to the intended effective date thereof, which date shall be
expressed in said notice, which shall be sent by registered mail, return receipt
requested. These provisions shall apply to the legal representative(s), trustee in
bankruptcy, receiver, assignee, trustee, and successor(s) in interest of Consultant.
All insurance coverage shall be at the sole expense of the Consultant and shall be
placed with such company as may be acceptable to the City of Salem and shall
constitute a material part of the contract documents.
Failure to provide written proof to City and continue in force such insurance as
aforesaid shall be deemed a material breach of the contract, and may constitute
sufficient grounds for immediate termination of the same.
9. SEVERABILITY:
Consultant agrees that if any provisions of this Agreement shall be invalid or
unenforceable as written, such provision shall be construed as restricting the
activities of Consultant to the full extent that such activities may be lawfully
restricted. The invalidity or lack of enforceability of any provision of this
rd
Agreement shall not affect the validity and continuing effectiveness of any other
provision of this Agreement.
10. COMPLIANCE WITH OTHER AGREEMENTS; COMPLIANCE WITH LAWS:
Consultant represents that the execution of this Agreement and the performance
of obligations hereunder will not conflict with, result in the breach of any
provisions or the termination of, or constitute a default under, any agreement to
which Consultant is or may be bound. Consultant will comply with federal,
state, and local law in providing the services hereunder.
11. WARRANTY OF ORIGINAL DEVELOPMENT:
Consultant warrants that the results of its services provided to City shall be of
Consultant's original development (unless otherwise identified in advance),
produced as a work for hire for City with no retention of rights by Consultant.
12. ENTIRE AGREEMENT:
This Agreement contains the entire agreement and supersedes all prior
agreements and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification, or discharge is sought.
13. WAIVERS
The waiver by City or Board of a breach of any of the terms or provisions of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
14. BINDING EFFECT; BENEFITS:
This Agreement shall inure to the benefit of, and shall be binding upon, the
parties hereto and their respective successors, assigns, heirs, and legal
representatives.
15. ASSIGNMENT:
Neither this Agreement nor any part hereof shall be assigned, mortgaged,
pledged, encumbered or otherwise transferred by Consultant or Consultant's
successors or assigns by operation of law or otherwise.
16. PUBLICITY:
17
Consultant agrees to submit to Board all proposed advertising and other
publicity matter relating to any services provided by Consultant wherein the
Board or City's name is mentioned or language used from which the connection
of Board or City can be inferred. Consultant agrees not to publish or use such
advertising or publicity matter without prior written consent of Board and City.
NOTICES:
Any notice required to be given pursuant to this agreement shall be deemed to
have been given when deposited in the United States mail, postage prepaid, or
delivered via a recognized overnight mail services, addressed to Health Agent,
City of Salem, 120 Washington Street, Salem, MA 01970, or Consultant, at the
address mentioned above, or at such addresses as either City or Consultant may
most recently have specified by written notice to the other acknowledged in
writing by the receipt thereof of evidenced by return receipt of the U.S. Postal
Service for certified or registered mail or the return receipt form provided by the
overnight mail service.
If the foregoing correctly sets forth our Agreement, please so indicate by
countersigning the form of acceptance on this page, whereupon this Agreement
shall become effective in accordance with the laws of the Commonwealth of
Massachusetts. Please return all originals to the Board of Health, 120 Washington
Street, Salem, MA 01970. After City Official signing, one original will be
returned to you.
Agreed to and accepted this day of 2008
TIGHE AND BOND CITY OF SALEM BOARD OF
HEALTH
M
Approved as to form:
M
Elizabeth Rennard, Esq.,
City Solicitor
KENNL F. WHf TAKER
ADORNO & YOSS
A LIMITED LIABILITY PARTNERSHIP
1 55 FEDERAL STREET
SUITE 1202
BOSTON, MA 021 10-1 727
GENERAL PHONE: 161 77 449-6030
FAx; (6 1 71 292-1 869
WWW.ADORNO.COM
July 21, 2009
Elizabeth Rennard, Esq.
City Solicitor ®�
City of Salem ,�
. <.
93 Washington Street �ti0o�
Salem, MA 10970SP�ENO
Dear Ms. Rennard: 60�
EMAIL: KWHIITAKER@ADORNO.COM
Enclosed please find our current invoice for services I have provided to the City
of Salem Board of Health with regard to a proposed public hearing associated with the
Swampscott Road Transfer Station. This project has once again become active with the
recent submission of a request for a minor modification to site assignment. I would like
to take this opportunity to explain the basis for this current invoice.
As you are probably aware, my involvement with this project began
approximately a year ago. During that time I met with the Board of Health members on
several occasions, carried out legal research on their behalf, drafted several documents
and announcements for their review and approval, reviewed a number of technical
documents likely to generate substantial commentary during public hearings (including
the Traffic Impact and Access Study, Air Quality Monitoring Report, Focused Risk
Characterization and Noise Impact Assessment Study) and provided additional
miscellaneous services. A summary of these earlier charges is attached to the back of the
current invoice. However, because activity of the project slowed dramatically once these
services were carried out, and because of the indeterminate schedule for conducting the
public hearings, I elected to defer billing until such time that the project resumed.
Frankly I did not foresee that the cessation in activity would last so long.
I am taking this opportunity to bill for the past services as they provided materials
and information still useful to the Board. Please be aware that, although I will apply the
same level of review as before to the previously -cited technical documents in preparation
for the public hearing, necessary given the long delay from my previous review, I will not
bill for this additional effort. To do otherwise would risk unjustified and unwarranted
"double -billing" which is wholly unacceptable to this firm.
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MISSOURI NEW JERSEY NEW YORK TExAS WASHINGTON D.C.
ATTORNEYS AOMRTEO SOLELY IN THE JURISDICTION WHERE LISTED OFFICE 15 LOCATED, UNLESS OTHERWISE NOTED
July 21, 2009
Page 2
I trust this explanation will be helpful and that no issues will arise with the
payment of this invoice. If you have any questions or wish to discuss this invoice further,
please feel free to call me at 617-449-6023. Thank you for your consideration and I look
forward to continued collaboration with the Salem Board of Health.
Very truly yours,
Kenneth F. Whittaker Ph.D., Esq.
KFW/ks
Enclosure
CC: Paul David Greenbaum
Paulette PuleQ
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MISSOURI NEW JERSEY NEW YORK TEXAS WASHINGTON, D.C.
ATTORNEYS ADMRiED SOLELY IN THE JURISDICTION WHERE LISTED OFFICE 15 LOCATED, UNLESS OTHERWISE NOTED
ADORNO & YOSS
A LIMITED LIABILITY PARTNERSHIP
2525 PONCE DE LEON BOULEVARD, SURE 400
MIAMI, FLORIDA 33 134-6012
PHONE: (305) 460-1000 FAx: (305) 460-1422
FEDERAL ID# 50-2746043
N .ADORNO.COM
Elizabeth Renard February 11, 2009
City of Salem, MA: Board of Health Invoice: 519684
93 Washington Street Page 1
Salem, MA 01970
For Services Rendered Through January 31, 2009
Legal Services - City of Salem Board of Health Swampscott Road Trasfer Station
Matter # 218728.0001 Transfer Station Permitting Assistance
08/07/08 Coordinate with J. Scott of the City of Salem re: upcoming
public hearings and document review.
CAUFORNA FLORIW GEORGIA IWNOIs MA5 CHUSE NEW JERSEY NMYORK TEXAS WMHINGTON, D.C.
KFW 0.60 hrs. 250.00/hr.
$150.00
08/08/08
SALEM BOARD OF HEALTH - review background
$0.00
information provided by Ms. Scott
08/11/08
Review technical reports regarding Salem Transfer station,
$0.00
prepare for upcoming meeting with client.
08/12/08
Complete initial review of technical reports related to the
$0.00
Salem Transfer Station, prepare comments for client meeting.
08/13/08
Prepare for and meet with representatives of Salem Board of
Health, re: upcoming site assignment public hearings
KFW 3.30 hrs. 250.00/hr.
$825.00
08/14/08
Research related to public hearing procedures and regulatory
$0.00
status of historical transfer station operations.
08/18/08
Salem Board of Health prepare written summary of issues for
client, advise on further communication and hearing oversight
issues.
KFW 0.90 his. 250.00/lir.
$225.00
08/25/08
Research, development of draft solicitation of testimony,
hearing protocols and public notice
KFW 2.60 hrs. 250.00/hr.
$650.00
09/03/08
Continue with drafting of public hearing notice and hearing
officer opening comments.
KFW 1.70 hrs. 250.00/hr.
$425.00
09/05/08
Complete written introductory comments and explanation of
public hearing process for upcoming hearing
KFW 2.40 hrs. 250.00/hr.
$600.00
CAUFORNA FLORIW GEORGIA IWNOIs MA5 CHUSE NEW JERSEY NMYORK TEXAS WMHINGTON, D.C.
09/08/08 Complete written materials for review by members of Salen
Board of Health.
KFW 1.30 hrs. 250.00/hr. $325.00
09/09/08 Prepare for and attend meeting of the Salem Board of Health
KFW 3.10 hrs. 250.00/hr. $775.00
09/10/08 Review consultant contract, prepare and send comments to
client representative.
KFW 1.30 hrs. 250.00/hr. $325.00
Total Fees for Professional Services $4,300.00
Matter Summary
Fees for Professional Services - Current Billing Period $4,300.00
Costs Incurred- Current Billing Period $0.00
Net Billing for Current Period $4,300.00
TOTAL DUE FOR THIS MATTER $4,300.00
CAUFORNW FLORIDA GEOROW ILLINOIS MASSAOHUSE NM JER5" NE YORH TEXAS WASHIN=N. D.C.
ADORNO & Y055
A LIMITED LIABILT PARTNERSHIP
2525 PONCE DE LEON BOULEVARD, SUITE 400
MIAMI, FLORIDA 33 1 34-501 2
PHONE: (305) 450-1000 F": (305) 450-1422
FEDERAL IDS/ 59-2748043
WWW.A RNO.COM
Elizabeth Rennard July 15, 2009
City of Salem, MA: Board of Health Invoice: 558337
93 Washington Street Page 1
Salem, MA 01970
For Services Rendered Through June 30, 2009
Legal Services - City of Salem Board of Health Swampscott Road Trasfer Station
Matter # 218728.0001 Transfer Station Permitting Assistance
06/26/09 Review application information, review public hearing rules
and communicate with client regarding procedures and case
kick-off meeting.
KFW 1.60 hrs. 250.00/hr. $400.00
06/29/09 Research on public hearing scheduling requirements,
discussions with representatives of MassDEP.
KFW 0.80 hrs. 250.00/hr. $200.00
06/30/09 Conversations with City of Salen Board of Health and
MassDEP re: public hearing requirements.
KFW 0.70 hrs. 250.00/hr. $175.00
Total Fees for Professional Services $775.00
Matter Summary
Balance Due for Matter as of July 15, 2009: $4,300.00
Fees for Professional Services - Current Billing Period $775.00
Costs Incurred- Current Billing Period $0.00
Net Billing for Current Period $775.00
TOTAL DUE FOR THIS MATTER $5,075.00
CAUFORNU. FLORIW GEOROW ILLINOIS MHSSKHHSERS NEw JERSEY NEWYORK TEJ(A3 WAMINGTON,D.C.
ADORNO & YOSS
A LIMITED LIABILM PARTNERSHIP
2525 PONCE DE LEON BOULEVARD, SURE 400
MIAMI, FLORIDA 33 134-801 2
PHONE: (305) 460-1 000 FAx: (305) 460-1422
FEDERAL ID# 59-2 7 4 6043
N .ADORNO.COM
REMITTANCE ADVICE
Outstanding Receivables As Of. July 15, 2009
Invoice Date Invoice #
Fees Costs
Payments & Balance Due
Credits
Applied
02/11/09 519684
$ 4,300.00 $ 0.00
$0.00 $ 4,300.00
07/15/09 558337
$775.00 $0.00
$0.00 $775.00
$5,075.00
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CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSEM NEW JERSEY NEW YORK TENAS WA5HINOTDN, D,C.
ADORNO & YOSS
A LIMITED LIABILITY PARTNERSHIP
1 55 FEDERAL STREET, SUITE 1 202
BOSTON, MA 021 10-1 72 7
GENERAL PHONE: (6 1 7) 449-6030
FAX: (6 1 7) 292-1869
WWW.ADORNO.COM
VIA Electronic and Regular Mail
June 19, 2008
Ms. Joanne Scott, Health Agent
City of Salem Board of Health
120 Washington Street, 0 Floor
Salem, MA 01970
Re: Request For Quotes —12 Swampscott Road Transfer Station
Dear Ms. Scott;
Adomo & Yoss LLP appreciates receiving your recent Request For Quotes
for legal services related to the upcoming public hearing for the site assignment
modification request to expand the 12 Swampscott Road Transfer Station from 100 to
400 tons per day. The following letter identifies the attorneys we propose to make
available to you for this important hearing and evaluation, our understanding of the
required scope of services and our proposed billing rates and total cost. We are confident
you will find the attorneys we have chosen to assist you, and whose resumes are attached
to this letter, are amply qualified and experienced to represent the Salem Board of Health
(the `Board") effectively and cost -efficiently and to help it withstand any subsequent
public opposition or appeal to the final site assignment modification decision.
Qualifications of Attorneys Selected to Assist the Board
We propose to have Attorney Kenneth F. Whittaker, Ph.D. take the lead role in
assisting the Board in the public hearing and review process, with assistance as needed
from Attorney William Parker. Both men are partners in this firm, are licensed to
practice law in Massachusetts and a number of other jurisdictions, and focus their legal
practice in environmental law and regulation with particular emphasis in the areas of
solid and hazardous waste management, environmental health and safety assessment and
regulatory compliance. They have engineering and/or health and safety protection
backgrounds and extensive experience in the conduct of public hearings and witness
examination in administrative and/or court proceedings. Mr. Parker is a former trial
attorney with both the United States Environmental Protection Agency and the United
States Department of Justice and, to the extent it may be relevant to the conduct of the
public hearing or associated response to public comment, is fluent in several languages
including Spanish.
Dr. Whittaker has a doctorate in civil/environmental engineering and prior to law
school worked for over 15 years as a senior level project/program manager and technical
expert in the investigation and remediation of solid, hazardous or other industrial waste
treatment and handling facilities. For the past two years he has served as the co-chair of
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS NEW JERSEY NEW YORK IEXAs WASHINGTON, D.C.
the Solid and Hazardous Waste Committee of the Boston Bar Association's
Environmental Law Section. He has directly relevant experience in site assignment and
permitting of solid waste transfer stations in Massachusetts (as well as in other eastern
states) pursuant to 310 CMR 16.00. Recently Dr. Whittaker, working with local and
MassDEP regulators (primarily in the Northeast Regional Office), supervised a team of
civil engineering professionals and environmental scientists in the successful completion
of a Site Assignment and acquisition of permits to construct and operate a new solid
waste transfer station in metropolitan Boston. Although considerably smaller than the
Swampscott Road transfer station, permitting of this new facility nevertheless required
comprehensive compliance with the rigorous engineering and health and safety
considerations and procedural requirements of 310 CMR 16.00. In addition, Dr.
Whittaker has years of experience in the conduct of public meetings and information
sessions related to solid and hazardous waste management facilities and has been tasked
on many occasions to advise an often hostile public audience on various health, safety
and environmental clean-up and permitting matters. As a Wenham resident, Dr.
Whittaker is familiar with the controversy surrounding the proposed site assignment
modification and will make himself available to the Board at little or no cost related to
travel time or expense.
Understanding of the Scope of the Project
We understand the proposed scope of services to include providing assistance to
the Board in the review of materials and the conduct of a public hearing related to a site
assignment modification request for increasing capacity at a solid waste transfer station.
This assignment consists of four items including 1) working with the Board and its
consultants to develop appropriate questions to assure that all factors necessary to the
Board's decision on the site assessment are adequately informed and considered; 2)
assisting the Board in the examination of witnesses and other interested parties as
appropriate during public hearing proceedings; 3) ensuring that the public hearing is
conducted in conformance with statutory and regulatory requirements; and, 4) assisting
the Board in ensuring that its review of application materials and its final decision on the
site assignment are based on consideration of the appropriate criteria. To this list we
would add a fifth consideration, that is assisting the Board in developing documentation
which demonstrates appropriate consideration of relevant factors in the event that any
subsequent appeal or request for withdrawal is brought based on alleged procedural,
substantive or deliberative grounds. It is our experience that, because public hearings
dealing with the siting or expansion of waste disposal facilities are almost always subject
to rigorous public debate and controversy, it is prudent to build the record appropriately
to prepare for any post -decision appeal by the aggrieved public.
Section 16.22 of 310 CMR provides regulations relevant to proposed
modifications to site assignments for solid waste handling and disposal facilities. It is
'We call your attention to 310 CMR 16.20(1) which states "The public hearing process is designed to
permit the flexibility and informality appropriate to the board of health proceeding, while providing the
board of health with procedural direction and the authority to create a record and render a decision within a
limited time period which is amenable to the procedures and the standards of judicial review applicable
under M.G.L. c. 30A, § 14."
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS NEW JERSEY NEW YORK TEXAS WASHINGTON, D.C.
unclear from the Request for Quotes whether the Board is to be involved in a requested
Major or Minor modification so we have developed our scope and budget to address
either circumstance. Existing information suggests however that the proposed review
will involve a minor modification to site assignment (i.e. increase in daily or annual
tonnage limits) pursuant to 310 CMR 16.22(3). This provision states "[t]he Board of
Health may modify a site assignment to address a minor modification at the request of the
facility owner or operator without requiring the filing of a new [Site Assignment
Application], provided the Board of Health provides public notice and holds a public
hearing in accordance with the requirements of 310 CMR 16.00 prior to deciding on the
minor modification." The need to rigorously comply with the regulatory requirements
for conducting a public hearing is therefore apparent.
We note that there are a number of other factors associated with this proposed
modification which may inform the public hearing process and the regulatory status of
the proposed site assignment modification (i.e., the results of MEPA review, the status of
relocated leaf/yard waste and recycling operations as potentially exempted activities,
building demolition, truck access considerations, stormwater management planning, etc.).
We will work closely with the Board to evaluate the significance of these factors and
their impact on the Board's consideration of the new facility's potential compliance with
site suitability criteria established in 310 CMR 16.40(3)(d) (4). In addition we will assist
the Board in establishing appropriate technical and public hearing fees and, throughout
the public hearing and review process, avoiding the legal pitfalls associated with
procedural requirements such as selection of a hearing officer, information confidentiality
provisions, timing of responses and the like.
You may be assured that we recognize the difficult role of the Board in serving as
an arbiter between a City Government favoring modified site assignment and an
energized public who may find myriad health, safety, environmental and economic
deficiencies in the proposed expansion. Ultimately the Board's final decision will rest
upon the public trust and its determination of the ability of the expansion to go forward
without unacceptable risk to public health and safety. We will provide our best efforts to
assure that the Board gathers the information necessary and in an appropriate manner to
make a thorough, informed and well-documented decision capable of withstanding any
subsequent appeal.
Budgetary Considerations
Adomo & Yoss recognizes the budget restrictions that Salem and many other
Massachusetts cities and town's face in the current economic environment, and we are
sensitive to our billing rates with regard to public sector clients. We also recognize that
municipal clients often prefer to have firm commitment on total costs, especially when it
comes to legal matters. For these reasons we are proposing for this project a reduced rate
for our services and a cost cap tied to the scope of services as described above. For that
scope, which will involve advising the Board on required topics of inquiry prior to the
public hearing, assisting the Board in witness examination and adhering to procedural
requirements during the hearing, and in developing a suitable documentary record both
CALIFORNIA FLORIDA GEORGIA ILLINOIS AA55ACHUSETfS NEW JERSEY NEW YORK TEXAS WASHINGTON, D.C.
during and following the hearing, Adomo & Yoss is prepared to offer attorney services at
an hourly rate of $250 but with a total not -to -exceed cost of $11,400. This cost not to
exceed will apply independent of the number of sessions that may actually be required to
complete the public hearing process or the number of required meetings to discuss
strategy and tactics with the Board. This cost cap is lower than the proposed budget
identified in the Request For Quotes but in keeping with our estimates of reasonable costs
for the requested legal services for a project of this type and scale. If our billings are less,
the Board will only be charged for actual time spent up to the budgetary limit. Legal
services associated with additional or out of scope matters would be billed at the
specified billing rate unless alternate arrangements are made ahead of time. We would be
pleased to discuss such arrangements at your convenience. These cost and billing terms
will be set out in a formal engagement letter which we will send upon your notice that we
have been selected to provide the services described herein.
Adorno & Yoss would welcome the opportunity to work with the Salem Board of
Health and other representatives of the City of Salem on this assignment and to have the
opportunity to demonstrate the excellence of our legal services in the environmental
protection area. We look forward to your review of this letter proposal and, hopefully, a
successful award of the project to our team. In the meantime, if you have any questions
or concerns on this proposal, please feel free to call Ken Whittaker at 617-449-6023.
Thanks you again for your consideration.
4er
rnly yo
mand Alvaro, Esq.
Managing Partner, Boston Office
Cc: Kenneth Whittaker
Enclosure — Attorney Resumes
California Florida Georgia Illinois Massachusetts New Jersey New York Texas Washington, D.C.
Wi
Par
617-8804888
Boston
Practice Areas:
Environmental
Litigation
Practice Groups:
Products Liability
Toxic Torts
Premises Liability
Insurance Defense
Insurance Coverage
Commercial Litigation
Employment Law
Securities Law
Professional Liability
Municipal/MTCA
ERISA
IM1466714_1l
PP/
William Parker, Vice Chair of the Firm's Environmental Law Practice Group, is a
Partner in the Boston office. Mr. Parker also serves as Vice Chair of the Boston
office's Litigation practice. Prior to joining the Firm, Mr. Parker has practiced at Ropes
& Gray, served as Senior Associate to the Joint Defense Group of petroleum
producers in Acushnet Company, et al. v. Amoco et al., and he has advised numerous
clients on environmental issues. As Assistant United States Attorney in the Criminal
and Civil Litigation Divisions, he represented the United States in over one hundred
cases, including cases involving the Clean Air Act, the Comprehensive Environmental
Response, Compensation and Liability Act, and its Massachusetts counterpart,
Chapter 21 E.
As an Assistant Regional Counsel in the Hazardous Waste Management Section of
the United States Environmental Protection Agency, Mr. Parker represented the
Agency in numerous cases under the Resource Conservation and Recovery Act, the
Toxic Substances Control Act, and the Emergency Planning and Community Right to
Know Act. He has advised manufacturing and chemicals companies worldwide as an
environmental consultant in the Environmental, Health and Safety practices of Arthur
D. Little, Inc.
Mr. Parker has taught as an Adjunct Professor of Environmental Litigation at Suffolk
University Law School in Boston. In addition, he has lectured on environmental law
and litigation before the Defense Research Institute, the Corporate Counsel Institute,
the National Bar Association and the Massachusetts Bar Association. He has also
served as a Financial Analyst and Executive Intern for Manufacturers and Traders
Trust Bank.
REPORTED CASES
• Daniel J. Quirk, Inc. v. Quarry Hills Associates, McCourt Construction
Corporation and the City of Quincy
• White et al. v. J&B Power Equipment Co. Inc. et al.
• Robert R. Heller v. Merrill Lynch, Pierce, Fenner & Smith, Inc. and Manly K.
Church
• Jeffrey and Linda King v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
EDUCATION
• M.S., in Management (Finance), Arthur D. Little School of Management (1986)
• M.A., in Law and Diplomacy, Fletcher School at Tufts University (1985)
• J.D., University of New York at Buffalo Law School (1982)
• B.A., in History, Amherst College (1977)
INVOLVEMENT
• Admitted to practice in: Massachusetts, U.S. District Court, District of
Massachusetts, U.S. Court of Appeals, First Circuit and the U.S. Supreme
Court
• Member, American Bar Association
• Member, National Bar Association
• Member, Massachusetts Bar Association
• Member, Massachusetts Black Lawyers Association, Board of Directors (1994),
Treasurer (11995)
Member, Board of Oversees, Boston Architectural College
• Adjunct Professor, Suffolk University School of Law
[M1466714_1i
Kenneth
Associate
Whittaker
kwhiftaker@adorno.com
617-880-4888
Boston
Practice Areas:
Environmental
Litigation
0f
Kenneth Whittaker is a senior attorney in the Environmental Practice Group of the
Firm's Boston office, concentrating in the areas of compliance assistance and defense
in state and federal enforcement proceedings.
Prior to his career as an environmental attorney, he worked in environmental
remediation and management, serving as a senior engineer, program manager and
remedial technology expert with several national environmental consulting firms.
Dr. Whittaker has provided legal and technical assistance related to federal
environmental statutes such as the Clean Air Act, CERCLA, RCRA, and the Oil
Pollution Act as well as the Massachusetts Wetlands Protection, Environmental Policy,
Coastal Zone Management and Clean Air Acts and the Storm Water Management
policies of the Commonwealth. In recent assignments he has advised industrial and
commercial clients on the limitation of environmental liabilities associated with property
acquisitions and divestitures, commercial leasing agreements, real property and
brownfields development, and multi -state solid waste handling facility permitting.
EDUCATION
• J.D., magna cum laude, Syracuse University College of Law (1998)
• Ph.D., in Civil/Environmental Engineering, Purdue University (1980)
• M.S., in Engineering, University of Florida (1976)
• B.A., in Chemistry, University of Vermont (1972)
;INVOLVEMENT
Practice Groups: • Admitted to Practice, State Bar of Massachusetts, 1998 and U.S. District Court,
Products Liability District of Massachusetts, 2001
Defense • Member, Massachusetts Bar Association
• Co-chair, Hazardous and Solid Waste Committee, Boston Bar Association
Toxic Torts . Director, Massachusetts Association of Conservation Commissions
Insurance Coverage • Member, Wenham Massachusetts Conservation Commission
• Member, American Bar Association - Section on Environment, Energy, and
Commercial Litigation Resources; Vice Chair, Site Remediation Committee
Professional Liability
Municipal/MICA
July 8, 2008
Kenneth Whittaker, Esq.
William Parker, Esq.
Adorno & Yoss
155 Federal Street
Suite 1202
Boston, MA 02110-1727
Re: Legal Services - City of Salem Board of Health
Dear Attorneys Whittaker and Parker:
On behalf of the City of Salem Board of Health, I am pleased to send you this letter to formally
accept your firm's Quotation submitted in response to the Board's Request for Quotations (RFQ)
for legal support to the Board relative to a proposed expansion to a permitted transfer station.
The scope of work is more fully defined in the Board's RFQ. Your municipal contact on this
project is Joanne Scott, Health Agent. She can be reached at 120 Washington St., Salem, MA
01970, telephone 978-619-5650.
Please remit all invoices for work, not to exceed $250.00 per hour, to this office for processing. In
the event you anticipate your work to exceed the allotted $14,000 for this project, please notify
Ms. Scott and this office at your earliest convenience. In addition, please carbon copy this office
on all reports and correspondence to the Board of Health.
We look forward to working with you. Thank you
Sincerely,
Elizabeth Rennard
KENNETH F. W AI(ERA `.' P,� f
LZ
AUG - 5 2008
SGAFiD OF HEALTH
ADORNO & YOSS
A LIMITED LIABILITY PARTNERSHIP
1 55 FEDERAL STREET, SUITE 1 202
BOSTON, MA 021 10-1 727
GENERAL PHONE: (61 7) 449-6030
FA%: (617) 292-1869
W W W.ADORNO. COM
August 1, 2008
Ms. Joanne Scott
Health Agent
City of Salem Board of Health
120 Washington Street, 4s Floor
Salem, MA 01970
Dear Ms. Scott,
EMAIL: K"H AKER@ADORNO.COM
City Solicitor Elizabeth Rennard has informed us by mail that our recent Quotation to
assist the Salem Board of Health in the matter of the Swampscott Road Transfer Station has been
accepted. We thank you for your consideration and confidence, and look forward to assisting you
on this project.
At this point we are uncertain as to when public hearings on the proposed transfer station
expansion will begin. Prior to that time I would like to meet with you to discuss the project and
review proposals, reports and other project—relevant submittals from Northside Carting Inc. I will
telephone you within the next week to determine if you see a benefit to such a meeting and, if so,
what date and time would be most convenient.
Thank you again for selecting this firm to assist in this matter.
Very truly yours,
Adorno & Yoss LLP
Kenneth Whittaker, Ph.D.
Partner
KF W/ks
CC: Elizabeth Rennard
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS NEW JERSEY NEW YORK TE%As WASHINGTON. D.C.