'TIw TROY WALL ASSOCIATES

ATTORNEYS AND COUNSELLORS AT LAW

90 ROUTE 6A • SANDWICH, MASSACHUSETTS 02563-1866

ROBERT S. TROY BRIAN J. WALL

April 5, 2011

Joseph Stanton, Esq., Clerk

John Adams Courthouse, Suite 1200 One Pemberton Square

Boston, MA 02108

Re: Johnson Golf Management, Inc. v. Town of Duxbury et al.

Appeals Court Docket No. 2010-J-0583

Dear Mr. Stanton:

Enclosed herewith for filing please find the following documents with regard to the above-referenced matter:

1. Defendant, Town of Duxbury's, Motion to Strike Plaintiffs Motion for Stay of the Superior Court's March 30, 2011 Order;

2. Defendant, Town of Duxbury's, Emergency Motion for Reconsideration; and

3. Certificate of Service.

Thank you.

Very truly yours,

Robert S. Troy Duxbury Town Counsel

RST/avd Enclosures

Cc: Stephen R. Follansbee, Esquire E. David Edge, Esquire Deborah 1. Ecker, Esquire Robert W. Galvin, Esquire Town Manager

Board of Selectmen Recreation Director

PHONE: (508) 888-5700 • FACSIMILE: (508) 888-5701

TROYWALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW 90 ROUTE6A INDWICH. MASSACHUSETTS 02563-1866

PHONE: (5081 888-5700

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS.

Appeals Court

Docket No. 2010-J-0583

JOHNSON GOLF MANAGEMENT, INC., Plaintiff,

v.

TOWN OF DUXBURY, and NORTH HILL ADVISORY COMMITTEE, consisting of MICHAEL DOOLIN, CHAIRMAN,

SCOTT WHITCOMB,

ROBERT M. MUSTARD, JR., MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD, and GORDON CUSHING (EX OFFICIO), CALM GOLF, INC. and CHARLES LANZETTA,

Defendants

DEFENDANT, TOWN OF DUXBURY'S, MOTION TO STRIKE PLAINTIFF'S EMERGENCY MOTION FOR A STAY OF THE SUPERIOR COURT'S MARCH 30, 2011 ORDER

the

Defendant

in the above-entitled

Now comes

the

Duxbury

(the

"Town") ,

and

Town

of

matter,

respectfully submits this Motion to Strike the Plaintiff,

Johnson Golf Management, Inc.'s ("Johnson"), Motion for a

Stay of the Superior Court's Order of March 30, 2011. The

Court should strike Johnson's Motion because it blatantly

violates the provisions of Mass. R. A. P. 6 and 15. As set

forth below, Johnson has flaunted the Rules of Appellate

TROYWALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW

90 ROUTE 6A NDWICH, MASSACHUSETTS 02563-1866

PHONE: (508) 888-5700

Procedure and the Order of the Single Justice by filing

concurrent Motions for Stay in the Superior Court and the

Appeals Court and not giving any notice of the Motion to

opposing parties until hours before the Motion was

allowed by the Appeals Court. Moreover, Johnson violated

Mass.R.A.P. 6 by filing its Motion with the Appeals Court

before the Superior Court had ruled on the Motion to Stay

and by not informing the Appeals Court of the Superior

Court's ruling on the Motion. In support of this Motion,

the Town asserts the following:

1. On December 24, 2010, the Town filed a Petition for

Interlocutory Relief pursuant to G.L. c. 231, § 118.

This Petition remained under review until March 14,

2011 when the Appeals Court (Sikora, J.) directed

the Town to file a Motion for Reconsideration with

Middlesex Superior Court. The Appeals Court did not

deny the Petition but directed the Town to present

the argument raised in the Petition to the Superior

Court Judge, who the Court described as having

"substantial experience with, and knowledge about,

the dispute." The Town complied with the Court's

directi ve and filed its Motion for Reconsideration

with the Superior Court on March 22, 2011.

2

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW

90 ROUTE 6A NDWICH. MASSACHUSETTS 02563-1866

PHONE: (508) 888-5700

2. On

March

25,

2011,

the

Superior

Court

heard

extensive

argument

the

Motion

for

on

Reconsideration.1

3. On March 30, 2011, the Superior Court (Smith, Jr.,

J.) issued a Memorandum of Decision and Order on the

Town's Emergency Motion for Reconsideration that

vacated the Preliminary Injunction dated November

24, 2010. This Order required Johnson to "forthwi th

return full control and management of the North Hill

Golf

and

Country

Club

defendant,

to

Town

of

Duxbury,"

and

" ... forthwith

all

vacate

the

properties that comprise the North Hill Golf and

Country Club." See Exhibit "A."

4. The Town took no action on Wednesday, March 30,

2011, Thursday, March 31, 2011, or Friday, April 1,

2011. On Friday, April 1, 2011, after determining

that Johnson had not appealed the March 30, 2011

Order, the Town awarded the Contract to Pilgrim

1 The Town has subsequently been informed by the Board of Bar Overseers that Johnson's Cousel was placed on Administrative Suspension from March 18, 2011 until April 1, 2011 and was prohibited from representing Johnson during this time period. Notwithstanding this prohibition, Johnson's Counsel argued on behalf of Johnson at the hearing and failed to disclose to opposing counsel that he had been placed on suspension, in direct contravention of the Rules of the Supreme Judicial Court and Board of Bar Overseers.

3

TROYWALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW 90 ROUTE 6A INDWICH. MASSACHUSETTS 02563-1866

PHONE, (508) 888-5700

Golf, 11C, the sole bidder in a G.1. c. 30B, § 5

procurement and directed Johnson to vacate the

premises on Sunday, April 3, 2011 at 5:00 P.M. The

Town authorized Pilgrim Golf to commence operations

at 5:01 P.M. on Sunday, April 3, 2011 since the

course is open and is being used by the pUblic.

5. On Monday, April 4, 2011, Johnson filed an Emergency

Motion for a Stay of the Superior Court's Order with

the Middlesex Superior Court.

See Exhibit "B." The

Town was informed by the Superior Court Clerk's

Office that the Motion had been transmitted to the

Judge and that the parties would be notified later

in the day of the Court's Decision on the Motion.

6. On Monday, April 4, 2011, Johnson subsequently filed

a Motion for Stay of the Superior Court's Order with

the Appeals Court in violation of the Rules of

Appellate

Procedure

requiring

prior

notice

to

opposing counsel and receipt of a ruling from the

Superior Court on the Motion to Stay. The Town

received a copy of Johnson's Motion, via facsimile,

at approximately 2:15 P.M.

7. On Monday, April 4, 2011 at approximately 3:45, an

Assistant Clerk of the Middlesex Superior Court

4

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW

90 ROUTE 6A NDWICH, MASSACHUSETTS 02563-1866

PHONE: (5081 888-5700

notified the parties that the Superior Court (Smith,

Jr., J.) had denied the Motion to Stay.

8. Johnson failed to notify the Appeals Court that the

Superior Court had acted. See Superior Court Docket

Entry, attached hereto as Exhibit "C.u

9. On Monday, April 4, 2011 at 4:57 P.M., the Town

recei ved an Order of the Appeals Court, via email,

granting Johnson's Emergency Motion for a Stay of

the Superior Court's March 30, 2011 Order.

10. Pursuant to Mass.R.A.P. 6(a) (1): "an application for

a stay of the judgment or order of a lower court

pending

an

order

suspending,

appeal ... or

for

modifying,

injunction

restoring

granting

an

or

during the pendency of an appeal must ordinarily be

made in the first instance in the lower court. A

motion for such relief may be made to the appellate

court or to a single justice, but the motion shall

show that application to the lower court for the

relief sought is not practicable, or that the lower

court has denied an application, or has failed to

afford the relief which the applicant requested,

wi th the reasons given by the lower court for its

action ... Reasonable notice of the motion shall be

given to all parties.u (Emphasis Added). Johnson

5

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW

90 ROUTE 6A NDWICH. MASSACHUSETTS 02563-1866

PHONE: (508) 888-5700

filed its Motion with the Appeals Court in violation

of this Rule by failing to provide the Town with any

notice of its Motion and by failing to obtain a

ruling from the Superior Court prior to filing the

Motion with the Appeals Court.

11. Pursuant to Mass.R.A.P. 15(a): "Any party may file a

response in opposition to a motion other than one

for a procedural order (for which see subdivision

(b)) within seven days after service of the motion,

but motions authorized by Rule 6 may be acted upon

after reasonable notice, and the appellate court or

a single justice may shorten or extend the time for

responding to any motion.u

12. Pursuant to Mass.R.A.P.

6 and 15,

the Town is

enti tied to reasonable notice prior to the Court's

action on the Motion. The Town was given virtually

no notice of Johnson's Motion prior to the Court's

action and therefore Johnson's Motion should be

stricken.

13. Johnson's Affidavit asserting that the Town and all

parties were given reasonable notice is plainly

false and constitutes perjury.

See Affidavit of

Douglas w. Johnson, ~~ 2,7. The Town received no

notice

until

the

Motions

filed

at

the

were

6

TROY WALL ASSOCIATES ATTORNEYS AND

:OUNSELLORS AT LAW

90 ROUTE 6A 'lDWICH, MASSACHUSEnS 02563-1866

PHONE: 15081 888-5700

respective Courts. Because Johnson gave no notice

and

the

Court

acted

Johnson's

material

on

misrepresentations, the management of North Hill has

been thrown into chaos and the Town has been

irreparably harmed by the Court's Order. Because of

concerns regarding public safety, the Town closed

North Hill earlier today.

14. Johnson's failure to notify the opposing parties

deprived the Town of notice and an opportunity to be

heard.

Because Johnson's Motion is replete with

falsehoods and misrepresentations and Johnson did

not notify the Appeals Court of the Superior Court's

action on the Motion for Stay, Johnson has caused

the Appeals Court to inadvertently violate the March

14, 2011 Order of the Single Justice as well as the

Rules of Appellate Procedure.

15. Johnson's actions violate the spirit and undisputed

contents of the Appeals Court Order. Rather than

submit his Motion to the Judge who rendered the

Order vacating the Preliminary Injunction, who the

Appeals Court characterized as having "substantial

experience with, and knowledge about, the dispute,"

Johnson

violated

the

Appeals

Court

Order

by

bypassing the Superior Court Judge and filing its

7

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW 90 ROUTE 6A NDWICH. MASSACHUSETTS 02563-1866

PHONE: (508) 888-5700

Motion for Stay with the Appeals Court with no

notice to parties and by misrepresenting the facts

to the Appeals Court.

WHEREFORE,

for

all

the

foregoing

reasons,

the

Defendant, Town of Duxbury, respectfully requests that

this Honorable Court:

its April

a. Vacate

4,

2011

Order

granting

Johnson's Emergency Motion for a Stay;

b. Strike Johnson's Motion for a Stay; and

c. Enter any and all other relief that the Court

deems just and appropriate.

Respectfully submitted, For the Defendant,

Town of Duxbury,

By its Attorney,

Robert S. Troy Duxbury Town Counsel B80# 503160

90 Route 6A Sandwich, MA 02563 (508) 888-5700

DATED: April ~ , 2011

8

EXHIBIT "A"

MAR-30-20ll 04: 09PM FROM-M I DDLESEXSUPERCOURT

+7819390B72

T-9S0 P.004/005 F-770

JOHNSONGOL

COMMONWEALT OF MASSACHUSE1rTS

MIDDLESEX, SS! SUPERIOR COURT CIVIL ACTION NO:

MICV2008-04641-B

TOWNOFD

URY & OTHERSl

MEMORANDUM OF DEC SION AND ORDER ~!JRANTING DEFENDANTS' EMERGENCY OTION FOR RECONSIDERATION

After hearing argument by all par' es, including the Intervenor, Pilgrim Golf, LLC, (pilgrim) this Court has decided to r· consider its November 24, 2010 Preliminary Injunction Order (Order) and shall vacate he Order for the following reasons.

The defendant Town of Duxbury (T IWn) has rejected all bids, including the bid made by Calm Golf, Inc., for a contract to opera -e North Hill Golf Course Country Club and has since re-bid the contract under a differs t bidding scheme allowed by law. None of the parties to the bidding process that precipi ated this law suit participated in the re-bidding. Only one business submitted a bid and th t was Pilgrim who WRS awarded the contract. In light of these changed circumstances, the mderlying rational, justifying the issuance of the November 24, 2010 Order, no longer exis .2 In reconsidering the sharing of the burdens, this Court now finds that to continue thi Order poses a far greater burden on the public interest in the inherent power of the T wn to operate its own public golf course than vacating it would have on the plaintiff, Jol rison Golf Management. Inc. (Johnson). While it is true that vacating this Order and Ieavi g Johnson to seek damages for the costs of a lost bid is the type of economic burden that lD y amount to irreparable harm, as the Supreme Judicial Court observed in Modern Conti.l'(mlal Constr. Co. v. Lowell. 391 Mass. 829, 837 (1984)(the losing bidder's "remedy at law r the damages incurred in preparing its bid falls

1 North Hill Advisory Committee, consisting of ichael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard -Ir., Michael Marlborough, Anthon Florcano, Michael T. Rufo, Thomas K. G<J.rrity, Richard Manning, W. James Ford, and Gordon Cushing (ex officio); Calm Golf. Inc.: and Charles Lanzetta.

2 This COU1.'t l'",jt;lctQ o.ll of'the other artrumants aised by tht'! 'l'own as Inf,dtless.

MAR-30-2011 04:0SPM FROM-MIDDLESEXSUPERCOURT

-2-

+7619390872

T-950 P.005/005 F-770

far short of being the equivalent of the pot -ntial to win the contract"), in this case, Johnson had opportunity to re-bid but chose not to. Its inaction belies any claim that vacating this Order would cause it to suffer irreparabl harm greater than that harm occasioned upon the public interest.

1. For the reasons stated above, 'he November 24, 201 O Preliminary Injunction ordered by this Court is V ACA

2. It is hereby ORDERED that th : plaintiff Johnson Gall' Management, Inc. shall

a. forthwith return full co trol and management of the North Hill Golf and Country Club to defenda t, Town of Duxbury, and

b. shall forthwith vacate al the properties that comprise the North Hill Golf and Country Club

3. It is hereby ORDERED that; t1 e plaintiff Johnson Golf Management, Inc. shall comply with the terms of the t rms and conditions of the previous management contract, with respect to the h ndling of all the fees and membership fees that plaintiff Johnson Golf Manage ent, Inc- has collected in 2010 and 2011.

4. As soon as the parties, Johnson Golf Management, Inc. and the Town of Duxbury have resolved between themse ves any issues (if any) concerning the fees and membership fees collected in 2 10 and 2011 by -Iohnson, and have so informed this Court, then this Court's 0 .der that Johnson Golf Management, Inc. post a bond or security shall be vacate .

DATED:

March 30, 2011

~~~~~l~f.=- __

~th, Jr. ie Superior Court

F:\MY Docs\surC'l'\CASES_CAMBRIDCI';\C1VlL-2011 \JOHl'k N COLF MANAGEMENT, INC. v, 'I'OWN OF DUXBURY, RT AL Mlcv2008. 046<11·B_DJi:~"SRECONSJDBRA1'JON_PL.MOTION.DOCX

EXHIBIT "B"

TELEPHONE (781) 1148-JSO()

Clerk of Court, Civil Middlesex Superior Court 200 Trade Center Woburn, MA 01801

FOLLANSBEE AND MCLEOD, LLP

ATrORNEVSATLAW

536 GRANITE STREET, 3"" FLOOR EAST BRAINTREE, MASSACHUSETTS 02184

April 4, 2011

Re: Johnson Golf Manaf:ement v. DuxbuQ' No.08-04641-B

Dear Sir/Madam:

Enclosed please find:

1. Emergency Motion For A Stay of Court' S March 30, 2011 Order.

2. Certificate of service

Thank you for your attention

Very truly yours,

fftt.l:Ji#

SRF/nb

ce. Robert S Troy, Esq.

E. David Edge, Esq. Robert W. Galvin, Esq.

,,'

FACSIMILE (78t) 8411-22:20

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DOCKET NO. 08-04641~B

JOHNSON GOLF MANAGEMENT, INC., PLAINTIFF

\

V.

TOWN OF DUXBURY, AND

NORTH IDLL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN, CHAIRMAN, SCOTT WHJTCOMB, ROBERT M. MUSTARD, JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO, MICHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD, AND GORDON CUSHJ[NG (EX OFFICIO)

and CALM GOLF,INc., AND CHARLES LANZETTA DEFENDANTS

PLAINTIFF'~EMERGENCY MOTION FOR A STAY OF COURT'S ORDER OF MARCH 30.2011 PENDING APPELLATE REVIEW ,

Now comes the Plaintiff and moves that this Court issue a stay of its March 30, 2011 order

vacating the preliminary injunction issued by this Court on February 3, 2009 and re-issued on

November 24,2011 and for cause therefor assigns the following:

1. This Court made detailed findings on February 2,2009 and November 24, 2010 which

included the following:

a. "Johnson Golf has established a likelihood of success on the merits of at least one, if not several of its many claims." (Page 6, Feb. 2, ·2010)

"

b. " .. There is no harm to the Town in enjoining it for the duration of this case. The interest of the Town is that North Hill be operated and maintained at all times. Johnson Golfhas been carrying out these tasks with some success for many years. This court ordered continuation of the status quo, therefore, would not harm the Town:' (Page 7, Feb. 2, 2010)

c. "There is significant evidence in the record to suggest that the defendant

did not act in good faith in rejecting all of the proposals pursuant to the first RFP. In his affidavit town manager, Richard MacDonald, states that he rejected the initial bids because some of the evaluators failed to supply composite scores in accordance with the initial RFP. But. he does not offer any explanation why he decided to reject all of the bids rather than pursue the obvious solution, which was to ask the evaluators to submit composite scores. Moreover, by failing to explain his reasoning and writing, MacDonald failed to meet the requirements set forth by G. L. c. 30 B §9. A fact that further suggests a rush to judgment to prevent the plaintiff from being awarded the contract."

d. "Once a government organization has put a public contract out to bid with certain conditions, the submission of the bid on those conditions creates an implied contract obligating the solicitor to those conditions." (Nov. 24, 2010, Page 5)

e. "It was not the Court's intention, however, to permit the town to award a contract to another company during the pendency of this action and, thereby, greatly complicate its ability to grant permanent injunctive relief, if appropriate, following the conclusion of this case." (Nov. 24,2010, Page 7)

2. A Single Justice of the Appeals Court has reviewed and affirmed this 'Court's prior orders

and has retained jurisdiction of this matter pending further orders of the Superior Court.

3. The PlaintiffwilJ seek review by the Single Justice in a timely manner of the Court's'

decision of March 30, 2011. In addition to the issue of the appropriateness of dissolving

the injunction, the Plaintiff will seek a review of the legal authority of the Town of

. _.

.'

Duxbury to reject the proposals of Johnson Golf and CALM Golf, pursuant to

Massachusetts G.L. c. 30B, some eighteen months after the Town awarded a contract as a

result of the January 2009 RFP process.

2

Wherefore, for the foregoing reasons, Johnson Golf respectfully requests that this

Honorable Court:

1. Issue a temporary stay of its March 30, 2011 order vacating the preliminary injunction

enjoining the Town of Duxbury from awarding the Contract to any person or entity other

than Johnson Golf during the pendency of this action until such time as a decision of the

Single Justice of the Appeals Court is issued.

2. Enter such other relief as the Court deems meet and just.

April 4, 2011

The Plaintiff, By its attorneys,

~

BBO #173820

Richard M. McLeod, Esq. BBO# 555134

FOLLANSBEE~ & McLEOD, LLP 536 Granite Street

Braintree, MA 02184 781-848-1500

3

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS.

JOHNSON GOLF MLANAGEMENTllNC., PLAINTIFF

v.

TOWN OF DUXBURY, ETAL and CALM GOLF, INC., AN» CHARLES LANZE-n A

DEF)tN.DANTS

SUPERIOR COURT DOCKET NO. 08-04641-B

CERTIFICATE OF SERVICE

I, Stephen R. Follansbee, hereby certifY that a true copy of Plaintiff's Emergency Motion For Stay of March 30, 2011 Order was served upon counsel for Town of Duxbury, David Edge, Esq., counsel for CALM Golf & Charles Lanzetta and Robert W. Galvin, Esq. counsel for Pilgrim Golf, LLC by means of facsimile transmission and first class mail to

Troy Wall Associates

90 Old Kings Highway

Sandwich, MA 02563

Facsimile 5088885701

David Edge, Esq.

Geary And Associates

161 Summer Street

Kingston, MA 02364

Facsimile 781 585 0332

Robert W. Galvin, Esq. 10 Enterprise Drive Duxbury, MA 02332 Facsimile 781 837 1030

Signed WIder the: pains and penalties of perjury this 4th day of April, 2011.

EXHIBIT "C"

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Home »County Inquiry» Civil Docket Search» Docket Details» Docket Entries» Entry Text

Johnson Golf Manag(ement, Inc. v Town of Duxbury et al

Docket Entry Details for Docket: MICV2008-04641

No. Docket Entry:

1 Plffs Emergency Motion For A Stay Of Court's Order of March 30r 2011

2 Pending Appellate Review. Filed in Court and Denied. (Herman J.

3 Smith, Jr., Justice) notice sent 4/4/2011

Docket Details:

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4/5/20] J 9:33 AM

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW 90 ROUTE 6A

Ii SANDWICH, MASSACHUSETTS !i :1

02563-1866 II

II

PHONE: 15081 888-5700 I:

'I

Ii i!

II

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS.

Appeals Court

Docket No. 2010-J-0583

)

JOHNSON GOLF MANAGEMENT, INC., )

Plaintiff, )

)

v. )

) TOWN OF DUXBURY, and NORTH HILL ) ADVISORY COMMITTEE, consisting of )

MICHAEL DOOLIN, CHAIRMAN, )

SCOTT WHITCOMB, )

ROBERT M. MUSTARD, JR., MICHAEL )

T. RUFO, THOMAS K. GARRITY, )

RICHARD MANNING, W. JAMES FORD, )

and GORDON CUSHING (EX OFFICIO), )

CALM GOLF, INC. and CHARLES )

LANZETTA, )

Defendants )

--------------------------------------)

DEFENDANT, TOWN OF DUXBURY'S, EMERGENCY MOTION FOR RECONSIDERATION OF THE COURT'S ORDER OF APRIL 4, 2011

On April 4, 2011, a Single Justice of the Appeals

Court

(Sikora,

J. )

granted Johnson Golf Management,

Inc. 's (" Johnson") Emergency Motion for a Stay of the

Middlesex Superior Court's March 30, 2011 Or de r ' which

1 The procedural flaws in Johnson's Motion for Stay are significant and are raised in the accompanying Motion to Strike. However, the substantive issues raised by the Court's Order granting the Motion for Stay are the cause of greater concern, as the Order has crippled the operation of North Hill until further action of the Court.

vacated a Preliminary Inj unction issued on November 24,

2010.

The Town was not given reasonable notice of

Johnson's Motion and the Single Justice acted before the

Town had any opportunity to file an Opposition.

The Order of the Single Justice is the result of a

series of misrepresentations by Johnson and his attorney

as well as Johnson's violation of the Single Justice's

Order of March 14, 2011 directing the parties to seek

relief first from "the injunction judge

because

the

record

In this

case

indicates

his

substantial

experience with,

and knowledge about,

the dispute.,,2

Johnson did file a Motion to Stay with the Superior

Court; however, Johnson did not wait for a ruling before

filing a Motion for Stay with the Appeals Court. 3

This

violates the requirements of Rule 6 of the Rules of

Appellate Procedure.

Furthermore, the Superior Court

denied Johnson's Motion before the Single Justice issued

the ruling granting a Stay.

Johnson did not inform the

Appeals Court of this fact even though he was notified by

the Superior Court before the Appeals Court issued its

ruling.

2 See, Order of the Appeals Court (Sikora, J.) dated March 14,2011.

3 Johnson's Motions were filed in the Superior Court and the Appeals Court on the same day.

2

TROY WALL ASSOCIATES

ATTORNEYS AND

COUNSELLORS AT LAW ii

90 ROUTE 6A Ii

Ii SANDWICH, MASSACHUSETTS II

02563-1866 !!

PHONE, (508) 888-5700 [I

I, II

Ii

Ii II

The Stay issued by the Appeals Court has caused

chaos at the Town's golf course and the Town Manager ~as

been required to close the course because of concerns for

public safety. 4

For the following reasons, the Town respectfully

requests the Appeals Court to reconsider its Order

granting Johnson's Motion for Stay.

FACTUAL AND PROCEDURAL BACKGROUND

1. On December 24, 2010, the Town filed a Petition for

Interlocutory Relief with the Appeals Court pursuant

to G.L. c. 231, § 118, appealing the Middlesex

Superior Court's November 24, 2010 Order granting a

Preliminary Injunction which allowed Johnson to

remain in control of the Town's public golf course

("North Hill") .

2. The Superior Court's Order specifically authorized

the Town to rebid the contract for the management of

North

Hill:

"it

hereby

that

the

is

ORDERED

Defendant,

Duxbury,

is

enjoined

of

from

Town

4 The Appeals Court Order has resulted in a heated dispute between Johnson Golf and the new management company, Pilgrim Golf, regarding who has the right to run the golf course. This dispute is causing the paying public to lose all confidence in the golf course operation and is jeopardizing the viability of the course and a source of revenue to the Town.

3

TROY WALL ASSOCIATES

t

i:

:i

COUNSELLORS AT LAW Ii

~ I, "

ATTORNEYS AND

90 ROUTE6A

SANDWICH, MASSACHUSETTS ii

02563-1866 : i I,

PHONE: (508) 888-5700 !!

!i

i: 1\

Ii il i,\

i

II

I

executing a contract for the operation of the North

Hill Golf and Country Club until the conclusion of

this litigation or further order of this court. This

Order does not forbid the Town of Duxbury from

rebidding

the

contract."

(Emphasis

added) .

See

Exhibit "A."

3. While the Town's Petition for Interlocutory Relief

was pending in the Appeals Court, the Town consulted

wi th the Office of the Inspector General regarding

the Town's options with respect to the management of

North Hill. See Letters from the Inspector General's

Office, attached hereto as Exhibit "B."

I

,I

Ii

II

'i

,',

4. In reliance upon the Inspector General's written

guidance and in accordance with the Superior Court's

November

24,

2010

Order,

the

issued

Town

an

Invitation for Bids ("IFB") pursuant to G.L. c. 30B,

§ 5. The Town worked closely with the Office of the

Inspector

General

preparing

IFB

and

in

the

incorporated the comments from the Office of the

Inspector General into the IFB. A copy of the IFB

is attached hereto as Exhibit "C." Bids were due on

March 21, 2011.

In response to the

IFB

the Town

recei ved one bid, from Pilgrim Golf,

LLC

( "Pilgrim

Golf"). Johnson did not submit a bid.

4

'i\

"

\1 i! I)

TROY WALL II

ASSOCIATES ji

Ii

ATTORNEYS AND 'I

COUNSELLORS AT LAW II

90 ROUTE 6A

SANDWICH, MASSACHUSETTS II

02563-1866 I

maN>;, """ sse- szoo I

Ii

5 . On March 14, 2011, nearly three months after the

Town filed its Petition for Interlocutory Relief,

the Single Justice

(Sikora, J.)

issued an Order

directing

file

the

Motion

for

Town

to

a

Reconsideration with the Superior Court raising the

issues

in

Petition

forth

the

Town's

and

set

Memorandum in Support thereof. See Exhibit "D." The

Town was specifically directed to include in its

Motion for Reconsideration the arguments it had

asserted in its Petition for Interlocutory Review so

that the Superior Court Justice, who, the Appeals

Court noted, has "substantial experience with and

knowledge

about

dispute,"

could

review the

the

arguments and issue a ruling.

6. The Town complied with the Order of the Single

Justice by filing a Motion for Reconsideration with

the Superior Court on March 22,

2011. The Town

concurrently filed an Emergency Motion to Authorize

the Award of the Contract to Manage North Hill. The

Superior Court held a Hearing on these Motions on

March 25, 2011.5 At the Hearing, the Town presented

5 The Board of Bar Overseers has notified the Town that Johnson's Counsel was administratively suspended from the practice of law from March 18, 2011 until April 1, 2011. Notwithstanding this fact, Attorney Follansbee

5

TROY WALL

ASSOOIATES

it

ATTORNEYS AND i:

COUNSELLORS AT LAW 11:

90 ROUTE 6A l,

SANDWICH, MASSACHUSETTS III 02563-1866

PHONE: (508) 888-5700 I

I

1\

the IFB and proposed award documents for the Court's

review.

7. On March 30, 2011, the Superior Court entered an

Order

vacating

Preliminary

Injunction

the

and

Ordering Johnson to return control of North Hill to

the Town.

The Town then_ waited until Friday, April

1, 2011, before taking action in the event that

Johnson might seek relief in the form of a Stay.

Johnson did not take any such action.6

8. On April 1, 2011, the Town awarded the contract to

Pilgrim Golf.

In addition, at the close of business

on April 1, 2011, the Town told Johnson to vacate

I 1\

n

I,

the premises by Sunday, April 3, 2011 by 5:00 P.M.

and instructed Pilgrim Golf to commence operations

at 5:01 P.M.

This was necessary because the public

golf course was already open for the season.

" II

I'

:1

:!

represented Johnson at the March 25, 2011 Superior Court Hearing at Middlesex County. Pursuant to Supreme Judicial Court Rule 4.01, Section 17, Follansbee was disqualified from acting as a lawyer after the effective date of the suspension and consequently his representation of Johnson at the hearing constituted a violation of the Rules of Professional Conduct regarding the unauthorized practice of law. The Town learned of Follansbee's suspension only after the hearing. He did not disclose his suspension to opposing Counsel as required by Rule 4.01, Section 17. 6The Town was informed that Attorney Follansbee was suspended from the practice of law from March 18, 2011 to April 1, 2011.

6

\1

TROY WALL ;1

ASSOCIATES !i

ATTORNEYS AND !!

COUNSELLORS AT LAW Ii

90 ROUTE 6A Ii

"NDWlCH, MASSACHUSETTS II

02563·1866 I

rnON' ,- ssa-szoc II

9. On Monday, April 4, 2011, Johnson filed an Emergency

Motion for a Stay of the Superior Court's Order with

the Middlesex Superior Court.

The Town received a

copy, via facsimile, at approximately 8: 45 A.M. See

Exhibit "E."

10. Also on Monday, April 4, 2011, Johnson filed a

Motion for. Stay of the Superior Court's Order with

the Appeals Court.

The Town received a copy of

Johnson's Motion, via facsimile, at approximately

2:15 P.M.

11. On Monday, April 4, 2011, at approximately 3:45

P. M., an Assistant Clerk of the Middlesex Superior

II :1

I' Ji I;

!j

1\ 12. On Monday, April 4, 2011 at 4:57 P.M., the Town

Court

contacted the Town

and advised that the

Superior Court (Smith, Jr.,

J.) had denied Johnson's

Emergency Motion for Stay.

received the Order of the Appeals Court, via email,

granting Johnson's Emergency Motion for a Stay of

the Superior Court's March 30, 2011 Order.

13. Although the Superior Court had issued a ruling

before the Appeals Court acted, Johnson failed to

inform the Appeals Court of such action.

7

TROY WALL

ASSOCIATES

:,

ATTORNEYS AND Ii

COUNSELLORS AT LAW :11

90 ROUTE 6A Ii

SANDWICH, MASSACHUSETTS 'II

02563-1866 '

>'HONe, OM' ase-szoo II

I! Ii

ARGUMENT

14. The Superior Court Judge,

who has

"substantial

experience with, and knowledge about, the dispute,"

denied Johnson's Motion for Stay. But the Appeals

Court, acting solely on the information submitted by

Johnson, rife with misrepresentations and omissions,

issued an Order granting the requested Stay. The

Court's Order has plunged the management of North

Hill management into chaos. The Town has awarded the

Contract to Pilgrim Golf pursuant to the March 30,

2011 Order of the Superior Court and was in the

process of transferring control of North Hill to

Pilgrim Golf. Because of the Appeals Court Order,

the Town has been forced to shut down North Hill,

resul ting in substantial harm to the Town and the

public interest.

15. The Single Justice's Order is inconsistent with the

March 14, 2011 Order which directed the Town to seek

relief by filing a Motion for Reconsideration with

the Superior Court. The purpose of the March 14

Order was to give the Superior Court the opportunity

i!

I f:

review

circumstances

facts

and

which

the

to

materially changed since the Preliminary Inj unction

was granted and to consider additional arguments

8

TROY WALL

:i I: ii

COUNSELLORS AT LAW !I'

90 ROUTE 6A !

I SANDWICH. MASSACHUSETTS Ii

02563-1866 'II

PHONE: (508) 888-5700

I

I

ASSOCIATES

ATTORNEYS AND

raised by the Town.

Upon consideration of same, the

determined

the

Preliminary

Superior

that

Court

Injunction should be vacated.

The Appeals Court

Order of April 4, 2011 frustrates the process that

specifically

and

previously

contemplated

was

Ordered.

16. Furthermore, the Single Justice's Order is based

Johnson's

Emergency Motion

for

Stay which

upon

contains

material

misrepresentations

of

fact,

including the assertion that "A Single Justice of

the Appeals Court has reviewed and affirmed the

Middlesex Superior Court's prior orders of February

2, 2009 and November 24, 2009 ... " Review of the

Court's March 14, 2011 Order makes it manifest that

the Court did not affirm either of the Superior

Court's Orders. Additionally, Johnson quotes from

prior Orders of the Superior Court that were decided

on facts and circumstances that are substantially

different from the present circumstances.

17. By granting Johnson's Motion for Stay, the Court has

created a situation where the successful bidder,

which has been properly awarded a contract under the

supervision of the Superior Court, cannot assume

control of the premises and has allowed Johnson

9

TROY WALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW

90 ROUTE 6A ii

SANDWICH, MASSACHUSETTS Ii

02563-1866 II!

PHONE, (508) 888-5700

II

Ii

which did not even submit a bid in response to the

IFB

to remain.

Pilgrim Golf should now be

operating North Hill, but the Court's Order has

prohibited this and frustrated the Town's ability to

transfer control of the public course.

WHEREFORE,

for

all

the

foregoing

reasons,

the

Defendant, Town of Duxbury, respectfully requests that

this Honorable Court:

a. Reconsider

its

Order

granting

Johnson's

Emergency Motion for Stay;

b. Affirm the Superior Court's March 30, 2011

Order vacating the Preliminary Injunction;

c. Schedule this matter for a hearing as soon as

practicable; and

d . Grant any other relief that the Court deems

just and appropriate.

Respectfully submitted, For the Defendant,

Town of Duxbury,

By its Attorney,

DATED:

Robert S. Troy BBO# 503160

Duxbury Town Counsel 90 Route 6A Sandwich, MA 02563 (508) 888-5700

April 5, 2011

10

E:XHIBIT "A"

MAR-30-l0ll 04:09PM FROM-MIDDLESEXSUPERCOURT

+7819390872

T-9S0 P.004/005 F-770

COM.MONWEALT OF MASSACHUSE1rTS

MIDDLESEX, SS! SUPERIOR COURT CIVIL ACTION NO:

MICV2008-04641-B

TOWNOFD

URY & OTHERSl

JOHNSONGOL

MEMORANDUM OF DEC SION AND ORDER (!]RANTING DEFENDANTS' EMERGENCY OTION FOR RECONSIDERATION

After hearing argument by all part es, including the Intervenor, Pilgrim Golf, LLC, (pilgrim) this Court has decided to r consider its November 24, 2010 Preliminary Injunction Order (Order) and shall vacate he Order for the following reasons.

The defendant 'I'own of Duxbury (T rwn) has rejected all bids, including the bid made by Calm Golf, Inc., for a contract to opera .e North Hill Golf Course Country Club and has since re-bid the contract under a differe t bidding scheme allowed by law. None of the parties to the bidding process that precipi ated this law suit participated in the re-bidding. Only One business submitted a bid and th t was Pilgrim who was awarded the contract. In light of these changed circumstances, the mderlying rational, justifying the issuance of the November 24, 2010 Order, no longer exis .2 In reconsidering the sharing of the burdens, this Court now finds that to continue thi Order poeee a far greater burden on the public interest in the inherent power of the T wn to operate its own public golf COurse than vacating it would have on the plaintiff, Jol rison Golf Management, Inc. (Johnson). While it is true that vacating this Order and leavi g Johnson to seek damages for the costs of a lost bid is the type of economic burden that III y amount to irreparable harm, as the Supreme Judicial Court observed in Modern Contil,ental Constr. Co. v. Louiell, 391 Mass. 829, 837 (1984)(the losing bidder's "remedy at law r the damages incurred in preparing its bid falls

1 North Hill Advisory Committee, consisting of ichael Doolin, Chairman, Scott Whitcomb, Robert M. Mustard Jr., Michael Marlborough, Anthon Floreano, Michael T. Rufo, Thomas K. Garrity. Richard Manning. W. JaDles Ford. and Gordon Cushing (ex officio); Calm Golf. Inc.: and Charles Lanzetta.

2 This Cou.l't l'l;ijC<lct~ nIl of th~ oth~r arrrumants aised by th~ 'l'own 39. tn.E,rLtlees.

MAR-30-2011 04:09PM FROM-MIDDLESEXSUPERCOURT

+7819390872

T-950 P.005/005 F-770

-2-

far short of being the equivalent of the pot .ntial to win the contract"), in this case, Johnson had opportunity to re-bid but chose not to. Its inaction belies any claim that vacating this Order would cause it to suffer irreparabl harm greater than that harm occasioned upon the public interest.

1. For the reasons stated above, ordered by this Court is VACA

2. It is hereby ~:::>RDERED that th : plaintiff Johnson GoB' Management, Inc. shall

201 O Preliminary Injunction

a. forthwith return full co trol and management of the North Hill Golf and Country Club to defenda t, Town of Duxbury, and

h. shall forthwith vacate the properties that comprise the North Hill Golf

and Country Club

3. It is hereby ORDERED that tl e plaintiff Johnson Golf Management, Inc. shall comply with the terms of the t rrns and conditions of the previous management contract, with respect to the ndling of all the fees and membership fees that plaintiff Johnson Golf Manage ent, Inc. has collected in 2010 and 2011.

4. As soon as the parties, Johnson Golf Management, Inc. and the Town of Duxbury have resolved between themse ves any issues (if any) concerning the fees and membership fees collected in 2 10 and 2011 by -Iohnson, and have so informed this Court, then this Court's 0 .der that Johnson Golf Management, Inc. post a bond or security shall be vacate .

DATED:

March ~IO, 2011

~+,~~~t~{=- ~ __ -- __

31th, Jr. re Superior Court

F:\MY Docs\surCT\CASES_CAMBRIDGI;;\CIVIL-2011 VOI·TN, N COLF MANAGEMENT, INC. V. ·I·OWN OF DUXBURY, R1' AL MJcv2008- 046d I-Bjl£F'SRECONSlDB1?A'l'ION_PLMOTION,DOCX

EXHIBIT "B"

llCbt ((ommonwtaltb of ~a55acbu5ttt5 ®ffice of the 31nnpedor clgeneral

GREGORY W. SULLIVAN INSPECTOR GENERAL

JOHN W. McCORMACK STATE OFFICE BUILDING ONE ASHBURTON PLACE

ROOM 1311 BOSTON, MA 02108 TEL: (617) 727·9140 FAX: (617) 723·2334

January 21,2011

Richard R. MacDonald Town Manager Duxbury Town Hall 878 Tremont Street Duxbury, MA 02332

Dear Mr. MacDonald:

This Office has learned certain information from the Town of Duxbury (Town) pertaining to the bidding process conducted by the Town for the golf management services of the North Hill Golf and Country Club ("the golf course").

According to the: Town: (1) in the 1st request for proposals process one of the evaluators was privy to a proposer's price proposal prior to completion of the technical scoring. When it became know to the Town, the Town cancelled the request for proposal (RFP) process. (2) In the next RFP process, the evaluation committee determined that each of the two proposals received deserved a Highly Advantageous rating. When the price proposals were subsequently opened, the Town awarded the contract to the firm offering the highest revenue to the Town.' As represented to this Office, the Town's action comport with M.G.L. c.30B.

This Office also reviewed Judge Smith's Memorandum of Decision and Order dated November 24, 2010 on the Defendants' motion for Summary Judgment in Johnson Golf Management, Inc. vs, Town of Duxbury et al., Docket No.: MICV2008-04641-B ("Order"). In the opinion of this Office, the Order would allow the Town to consider:

• Rejecting all bids and determining whether to manage the golf course in-house, and

• Rejecting all bids and determining whether to rebid the contract pursuant to either:

M.G.L. c.30B, §5 the request for proposals process or M.G.L. c.30B, §6 the invitation for bids process.

1 The Town informed this Office that, at the time, it did not know that the highest proposer lacked the assets and equipment to perform the contract.

As you know, the role of the Office in interpreting M.G.L. c.30B is strictly advisory in nature. Please do not hesitate to contact us with any questions you have about this letter or your future solicitation for services.

Sincerely,

I

Robert S, Tro~, Esq,j

Gregory W. Sullivan Inspector General

U~tLiILU~~ ~(.JL

uuuuuuuutJ

rHO!:. tJL/tJ-J

. -m:{J£ ClCommonwealtb of ;!Ilfla5'5atbu~ett$5 I!J)fftcr. of tf)c jn~pt£tot tgentral

GREGORY W. SULLIVAN INSPECTOI'l GENI:RI\L.

JOHN w, MoCORMACI< l~TAn; OFFICE BUILDING ClNEI\SHBUR'rON ~LACc

ROOM 1311 BOSTON, MA 021013 TEL; «(111) '~7·~140 FA~; (617) 7~3'2334

January 27,2011

Richard R. MacDonald Town Manager Duxbury Town Hall 878 Tremont Street Duxbury, MA 02332

Dear Mr. MacDonald:

\

This Office has learned certain information from the Town of Duxbury (Town) pertaining to the bidding process conducted by the Town for golf management services of the North Hill Golf and Country Club' ('Itbe golf course"). This Office also reviewed Judge Smith's Memorandum of Decision and Order dated November 24, 2010 on the Defendants' motion for Summary Judgment in Johnson Golf Management.. Inc. vs. Town of Duxbury et aI., Docket No.:

MICV2008-04641- B ("Order")

According to the Town: (1) One of the evaluators was privy to a proposer's price proposal prior to completion of the technical scoring. When it became know to the Town, the Town cancelled the request for proposal (RFP) process. (2) In the next RFP process, the evaluation committee determined that each of the two proposals received deserved a Highly Advantageous rating. When the price proposals were subsequenrly opened, the Town. awarded the contract to the finn offering the highest revenue to the Town. As represented to this Office, these procedures comport with M.G.L. c.30B.

In. a revenue generating scenario, the Town selected a proposal that was $92,500.00 higher. Each of the two proposers received identical composite evaluations on the technical submissions. The CPO identified the most advantageous proposal, taking into consideration the proposal technical evaluations .and the proposal prices. Both proposals received the same rating and the Town decided to go with the proposal that generated the most money for the Town. The Town informed this Office that, at the time, it did not know that the highest proposer lacked the assets and equipment to perform the contract.

In the opinion of this Office the options available to the Town include: , • Rejection of all bids and manage the golf course itself, and

• Rebidding the: contract and awarding a contract to either: (a) the responsive and responsible bidder offering the highest amount of money in an Invitation for Bids- under

I M"",,- U...JI U....J

M.O.L. c.30B, §5; or (b) to the most advantageous proposer offering the most. advantageous proposal taking into consideration all evaluation criteria as wen as price pursuant to M.O.L. c.30B, §6.

As you know, the role of the Office In interpreting M.G.L. c.30B is strictly advisory in nature. Please do not hesitate to contact us with any questions you have about this letter or your future solicitation for services.

Sincerely,

G~r->-f Iv.~~

Gregory W. Sullivan . Inspector General

Robert S. Troy, Esq.

EXHIBIT "C"

y

T

IFB 2011-001 Management Contract for the

North Hill Golf Course and Country Club

Invitation For Bid Due:

Monday, March 21,2011 @ 12:00 P.M. at the Office of Inspectional Services 8:r8 Tremont Street, Duxbury, MA 02332

TABLE OF CONTENTS

Page
1. IFB 2-7
2. Attachment 1 - Quality Requirements 8
3. Attachment 2 - Price Proposal Sheet 9
4. Attachment 3 - Certification 10
5. Management Agreement 11-24
6. Exhibit A - Representations by Manager 25
7. Exhibit B - Fee Schedule 26
8. Exhibit C - The Operational Plan 27-28
9. Exhibit D - Yearly Golf Course Maintenance Plan 29-32
10. Exhibit E - North Hill Golf Course Financial Information 33 2

TOWN OF DUXBURY Duxbury Town Offices

878 Tremont Street Duxbury, MA 02332 (781) 934-1100 x 146 FAX (781) 934-1118

lNVIT A nON FOR BID March 7,2011

NORTH HILL GOLF COURSE AND COUNTRY CLUB

The Town of Duxbury, acting through its Town Manager, invites sealed bids for the contract to manage the North Hill Golf Course and Country Club. The term of the contract will commence on or about March 31, 2011 and continue for a period of five (5) years.

The following is a copy of an Invitation for Bids (hereinafter referred to as the "IFB") package that contains the scope of work, objectives for the project, project requirements, bid submission requirements and requisite forms that must be included with the bid. Prospective bids must comply with the submission requirements including the submittal of all requisite forms. All Bid amounts shall be submitted on Price Proposal Sheet - Attachment 2 and specified in both words and figures, and shall be typed or written in ink. In the case of a discrepancy between the words and the figures, the higher amount shall govern.

The prospective individual, firm, partnership, corporation, limited partnership or other entity, hereinafter referred to as the "Proposer" is expected to examine the IFB including all of the Appendices, Management Contract as amended in accordance with the terms set forth herein and the existing facility, including equipment, carefully before submitting a bid. Failure to do so will not relieve a successful Proposer of their obligation to furnish all labor and materials necessary to carry out the provisions of the contract. The submission of a bid shall be considered prima facie evidence that the Proposer has made such examination of the proposed work, plans, and IFB, and is familiar with conditions to be encountered in performing the work and the requirements of the IFB, any special provisions and the existing Management Contract. The Proposer will assume all of the responsibilities imposed on the "Management Entity" as delineated herein.

Pre-proposal conferences may be available upon request.

3

Particular attention is called to the requirements for worker's compensation, public liability, motor vehicle and liquor liability insurance and the manner in which the work is to be performed. The minimum required insurance coverage for the Town of Duxbury contracts is set forth in the Management Agreement.

Bids for this project are subject to the provisions of Mass. General Laws, C. 30B, inclusive.

The Town of Duxbury also reserves the right to reject any and all proposals if it deems such rejection(s) to be in the best interest of the Town. The Town of Duxbury will waive minor discrepancies or require the bidder to correct them. Any fees or other expenses of the proposer associated with this IFB process are solely the responsibility of the respective proposer.

Before the awarding of any contract, any proposer must demonstrate that he or she has the necessary experience, ability and financial resources to perform the work in a satisfactory manner. The proposer shall be required to furnish the Town with formal sworn statements or other confirmation satisfactory to the Town as to the proposer's experience and financial status in whole or in part and to provide a surety bond in the sum of$300,000.00 naming the Town as Obligee or other security to the satisfaction of the Town.

All questions by prospective Proposers as to the interpretation of the information in the IFB, including but not limited to the submission requirements, Management Contract and requisite forms, must be submitted in writing to Purchasing Agent, Town of Duxbury, 878 Tremont Street, Duxbury, MA 02332 no later than 7 calendar days prior to the proposal due date. Written responses to questions will be provided to all parties who have responded to the advertisement.

Prospective Proposers hereto agree that all actions or proceedings arising in connection with this IFB shall be tried and litigated exclusively in the State Courts located in Plymouth County, Massachusetts. The aforementioned choice of venue is intended to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this IFB in any jurisdiction other than that specified in this paragraph.

4

1. INTRODUCTION

Overall Scope of Work

The work to be done herein consists of the management and operation of the town owned North Hill Golf Course and Country Club ("Club"), a public golf course with permits available for up to 200 adults and 150 Jr. members and daily fee play at the Town of Duxbury's facility consisting of a 9-hole golf course, a golf pro shop, a restaurant and bar. The Proposer may submit an application for an alcoholic beverage license to the Town which the Town mayor may not grant subject to review by the Alcoholic Beverage Control Commission.

The Management Entity shall operate the Club facilities with sufficient personnel to maintain the greens, collect fees, rent carts, schedule tee times, and supply starters and rangers to insure a continuous flow of play. Likewise, the Management Entity shall provide personnel to staff the restaurant and pro shop. The Town shall provide only the equipment and inventory owned by the Town that already exists on the premises. The Management Entity will supply all other equipment necessary to operate and maintain the facilities.

The Management Entity shall operate the facilities for the Town for a period of five (5) years and shall pay the Town a base annual management fee. The contract will commence upon the signing of the contract and will expire after 5 years. The 2011 annual golf permit fees shall inure to the benefit of the successful Proposer on the signing of the management contract whether or not the annual golf permit fees are collected before the signing of the contract. Annual membership fees have been set for the 2011 season and shall be set no later than November 15 prior to each subsequent season.

The Management Contract will provide for annual management fees, which will reflect the amount proposed by the Management Entity on "Bid Proposal Sheet - Attachment 2."

Pursuant to the Management Contract, the Management Entity agrees that a Decision by the Duxbury Board of Selectmen to terminate the Management Agreement will be binding on the Management Entity and that the Management Entity agrees not to contest such a Decision in any judicial or other legal proceeding and will surrender the premises to the Town of Duxbury within 10 days of such a Decision by the Town.

The Management Entity will be responsible for applying for and complying with all necessary licenses and permits required by any agency in carrying out the proposal and term of the Management Contract, including, but not limited to, a common victualer's license and an alcoholic beverage license.

For the purposes of establishing policies and to facilitate long-term planning, the Town reserves the right to audit, at the expense of the Town, all financial records of the Management Entity only as they pertain to revenue; for example (but without implied limitation) the number of rounds played, member and non-member rounds, restaurant,

5

bar, catering and function gross receipts and similarly with respect to other aspects of the operation of the Club.

General hours of operation are set forth in Exhibit C.

Responsibilities of the Management Entity:

1. Day to day management of all of the Club facilities;

2. Timely transmittal of the consideration due the Town;

3. Ongoing maintenance of the golf course, buildings and other facilities as set forth in Exhibit D

4. Collection of all fees including membership and greens fees.

5. Submission of monthly reports as outlined in Section 4.3 of the management agreement.

A. Qualifications of the Management Entity:

1. The Proposer must provide its best evidence of its financial capacity necessary to operate the Club including employing the necessary labor and equipment. The Director of Municipal Finance and the purchasing agent shall use this information to determine responsible proposers. Chapter 30B of the Massachusetts General Law defines a "Responsible bidder or offeror" as "a person who has the capability and the integrity to perform fully the contract requirements. "

2. Such evidence shall include the following:

a. Business and/or personal financial statements, business and/or personal tax returns, or pro-forma financial statements.

b. Banking References; bidders must provide references from all banking institutions with which the bidder currently does business.

c. Vendor references; bidders must submit a complete list of all vendors with which the bidder currently does business.

d. Bidders must submit a copy of a Dun & Bradstreet report if available.

e. Bidders must submit a description of the individual or organization's relevant background in the areas of management, administration operation and maintenance of a golf course or comparable business enterprise. Include the number of years in which you have been in business under the

6

present business or individual name. Also indicate if you have ever failed to complete any work awarded and the reason for this failure.

f. Please include the names, qualifications, references, and resumes of the personnel who will be responsible for managing the facility. For Pro Golf, Superintendent and Director of Golf/General manager, provide a list of courses, or comparable business enterprises at which they have worked including the number of years and a name and telephone number of a point of contact from the facility. Identify their specific responsibilities. Include the names, qualifications, references and resumes of the individual or organization's management personnel and an organizational chart. Specifically be sure to include the Superintendent, Golf Pro, Director of Golf/General manager and anyone responsible for the day to day operation of the golf course. Proposers are reminded that any key personnel changes occurring during the term of the contract will require prior approval from the Town,

g. The long term financial and recreational success of the North Hill Golf Course is of critical importance to the Town of Duxbury. Please provide a detailed list of maintenance equipment that your firm will use to maintain the golf course. Proposer is to provide a list of all golf courses, or comparable business enterprises, the individual or organization has maintained for the past ten years. Include a name and telephone number of a point of contact at those facilities. Provide the "on site" Superintendent's MA pesticide certification number. Be sure to include the make, model and age of all equipment that is proposed to be used to maintain the course. Also, please list the make, year, type and number of golf carts that you will be provide. Please note that the minimum requirements by the Town for much of the Golf Course maintenance are provided in Exhibit D of the Management Agreement.

h. Any other documentation you may wish to submit to further provide evidence of the financial stability of the Proposer.

3. A bid may be rejected on the basis of one or more references reporting poor past performance by the bidder or for any reason that is deemed to be within the discretion of the Town of Duxbury.

7

RULE FOR A WARD,

The contract will be awarded to the responsive and responsible bidder offering the highest total cash payment of years 1 thru 5 combined.

The applicant, whose proposal is accepted by the Town, will be required to execute the attached management agreement.

The entire IFB package includes:

1) Quality Requirements (Attachment 1)

2) Price Proposal Sheet (Attachment 2)

4) Certification (Attachment 3)

5) Management Agreement

6) Exhibit A, B, C, and D

7) Monthly Revenue Reports (Exhibit E)

8) Certificate of Compliance with State Tax Laws

It is expected that the Management Agreement will be awarded no later than March 31 , 2011.

SUBMITTED DOCUMENTS

Proposers shall submit the entire bid package as listed above, items 1 - 8, , no later than Monday, March 21, 2,011 at 12:00 PM to the Duxbury Town Hall, c/o Town Manager, 878 Tremont St., Duxbury, MA 02332 at which time all bids will be opened and read aloud.

As applicable, the outside of the envelope containing the bid shall indicate:

"North Hill Golf Course and Country Club Management Price IFB", and the individual or company name.

The Town of Duxbury shall award the contract by March 31, 2011. The Town Manager is the Chief Procurement Officer for the Town of Duxbury and it is by his authority that the contract shall be awarded. The Town of Duxbury reserves the right to reject any and all proposals if it is deemed in its best interest to do so. The Town of Duxbury reserves the right to decline to make any Award if the Chief Procurement Officer deems it to be in the best interest of the Town.

8

ATTACHMENT 1

QUALITY REQUIREMENTS

Circle Y(yes) or N(JI0) for items 1 thru 3. Bids not meeting the following requirements will no.t be accepted.

The proposer supplied at least four references from individuals or corporations currently doing business with the proposer and those individuals or businesses report that the manager has had no credit or payment problems.

Do you or your firm comply? Y / N

The designated "on site" Director of Golf/General Manager has a minimum of three years experience managing a golf course or comparable business enterprise such as, but not limited to, recreational facilities, commercial landscaping operations or outdoor sports complexes.

Do you or your firm comply? Y / N

Proposer submitted all required financial documents.

Do you or your firm comply? Y / N

9

ATTACHMENT 2

PRICE PROPOSAL SHEET

Price Proposal- Five Year Term

North Hill Golf Course and Country Club Town of Duxbury, Massachusetts

Name of Finn or

Individual Submitting Proposal: _

Address:

Telephone: _

Cash Payment (Dollar Value per year)

Yem 1: $ ~~~itt=e=n~: _

YeM2: $ ~~~itt=e=n~: __

Yem3:$, ~~i~tt~en~:~ ___

Yem4: $ ~~i~tt~en~:~ ___

Yem5: $ ~~==irt=e=n~: _

Total Cash Value of payment for 5 years: $ ___:wr_:..=..:it=te=n~:_~ _

Authorized Signature of Proposer:

Name and Title (typed):

Date:

-----------------------

10

ATTACHMENT 3

CERTIFICATION

Each proposal shall be accompanied by the signed certification 'as follows:

Pursuant to M.G.L.C. 40, §4Bl/2, the undersigned certifies under penalties of perjury that this proposal is in all respects bona fide, fair, and made without collusion or fraud with any other person. As used in this certification, the word "person" shall mean any natural person, joint venture, partnership, corporation, or other business or legal entity.

COMPANY NAME

SIGNATURE OF AUTHORlZED REPRESENTATIVE

PRlNTED NAME OF AUTHORlZED REPRESENTATIVE AND TITLE

DATE

11

MANAGEMENT AGREEMENT

THIS AGREEMENT, made and entered into on this day of _

by and between" " corporation (hereinafter call the "Manager"), and the Town of Duxbury, Massachusetts (herein called "the Town").

WIT N E SSE T H:

WHEREAS, the Town is the owner of a nine (9) hole golf course and related amenities, including a clubhouse, irrigation system, irrigation pump-house, cart barn, chemical storage facility, fuel depot, and 40 x 60 metal maintenance building, known as the North Hill Country Club, located in Duxbury, Plymouth County, Massachusetts (the "golf course"); and

WHEREAS, the Manager and its employees are experienced in the management and operation of golf courses of the size and class of the golf course; and

WHEREAS, the Town desires to obtain the benefits of Manager's expertise in the management and operation of the golf course by granting to Manager control and discretion in the management and supervision thereof as provided herein, and the Manager desires to assume such control and discretion upon the terms and conditions set forth in this Agreement and

WHEREAS, the Town of Duxbury, through its Town Manager shall monitor the activities of the golf course with assistance from the Town Manager's authorized agent acting on its behalf in certain respects.

NOW, THEREFORE, in consideration ofthe mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Engagement of Manager

1.1 The Town engages Manager to manage, supervise, direct, and control the

operation of the golf course under the terms of the Agreement.

1.2 Term. The term of this Agreement is for five (5) years commencing on

______ and continue through . At the expiration of the term the

golf course shall be ready for the next golf season. The bond or security as specified in Section 1.4 of this Agreement shall not be released until the Recreation Director has certified that the golf course is ready for play for the 20_ golf season.

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1.3 General Responsibilities

(a) Manager shall manage and operate the golf course, driving range and

clubhouse throughout the Term. Manager shall operate a snack bar and serve such foods as deemed desirable by the Manager.

(b) The Manager shall abide by the conditions of the alcohol license which

may be issued by the Town. If, after a hearing, the Board of Selectmen determines that a violation has occurred, the Board of Selectmen reserves the right to exercise its statutory right to modify or terminate the license. It is agreed that the inability of the Manager to obtain an alcohol license, or the revocation or suspension of this license, shall not be grounds for breach of this Agreement.

1.4 Security

(a) The Manager shall carry a surety bond for the duration of the term of the

contract in the amount of $300,000.00, naming the Town as Obligee. The Carrieres) shall carry an A.M. Best rating of not less than "A-", nor a size category ofless than category "VI". The Manager shall deposit with the Town such bond at or prior to the commencement of the term of this contract. The premium for such bond shall be prepaid in advance for one year term. Evidence of a renewal of this bond must be supplied to the Town by December 1, of each calendar year, and said bond must be in effect for the following calendar year.

(b) Alternatively, the Manager may provide security in a form and in an

amount deemed acceptable by the Town. The Manager shall deposit such security with the Town at or prior to the commencement of the term of this Contract.

2. Use and Operation of the golf course

2.1 Genera! Manager shall run the golf course, driving range, as is usual for

a first class municipal golf course and to operate all facilities in connection therewith as hereinafter provided. In conjunction therewith the Town Manager and Board of Selectmen has relied upon representations made by the Manager in Exhibit A, C and D annexed hereto. No sale or income activity, other than those enumerated in the Agreement, shall be conducted by Manager at the golf course.

2.2 Meetin~ In furtherance of each party fulfilling its obligations

hereunder, a representative of the Manager shall attend one (1) meeting of the North Hill Advisory Committee, (NHAC), each calendar month, at which time a Manager's Status Report of golf course conditions and equipment will be made. A standard report format will be provided by the Town Manager to be filled out completely and presented in full to the NHAC and Recreation Director. The report shall include monthly financials generated by an approved POS system. Upon seven (7) days notice from the NHAC, Manager shall have a representative present at additional committee meetings.

13

2.3 Enumerated Responsibilities Subject to this Agreement, Manager shall

have control and discretion in the management and operation of the golf course and all of the golf facilities, equipment, machinery and properties relating thereto. The Manager has suggested, and the Town adopts, the following operational requirements:

(a) Exhibit:~ The terms and conditions set forth in Exhibits A, B, C, D, E,

copies of which are attached hereto, are herby incorporated into this Agreement as if set forth herein in their entirety. Where there is a conflict or inconsistency between the terms and conditions as set forth in the Exhibits, the provisions of the Agreement shall govern.

(b) Rules and Regulations Manager shall establish and maintain, subject to

the terms of this Agreement and approval of the Town Manager, rules and regulations for the appropriate use of the golf course. Manager shall be responsible for advising the patrons of such rules and regulations, and for the enforcement thereof. Said rules will be put into written form and be furnished to the Recreation Director, shall be posted by sign, and printed on circulars for distribution to the patrons. Manager shall submit proposed rules and regulations to the Town Manager prior to February 1 st of each year.

2.4 Utilitie:~ At his own expense, the Manager shall furnish all necessary

heat, water, utilities and electricity for the premises.

2.5 Signag(~ The Manager shall not put upon nor permit or allow out on any

part of the premises any signs, billboards or advertisements without the previous consent, in writing, of the Board of Selectmen. The Town or authorized agents of the Town may, at reasonable times, enter to view the leased premises and may remove placards and signs not approved and affixed as herein provided. The town may also show the leased premises to others, and at any time within six (6) months before the expiration of the term, may affix to any suitable part of the leased premises a notice for letting or selling the leased premises or property of which the leased premises are part and keep the same affixed without hindrance or molestation.

2.6 Inspection of Premises The Manager agrees that the Town officials may

enter the premises to inspect the golf course, clubhouse, or other property at reasonable times. Town's Director or Public Works, Director ofInspectional Services, Health Inspector, or Recreation Director may inspect the property as needed and prepare reports of conditions that may require corrective action by the Manager.

2.7 Soft Spikes North Hill Country Club is a "spikeless" course. Metal

spikes shall be prohibited by the Manager on the property, including the golf course and the clubhouse. In addition the Manager shall make available to the golfer a spike changing service and may charge a reasonable fee for such service. This fee shall be determined by the Manager.

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3. Control and Reporting Course Use

3.1 Record Keeping The Manager shall establish, at its expense, a control

and reporting system for the purpose of recording golf course use. Said system shall conform to generally accepted accounting procedures. Such system shall also be designed to enable Manager and the Town to accurately audit membership, greens fees, golf cart rentals, driving range use, liquor and food sales, and rounds of play of both members and non-members. The Manager shall provide at its expense a computer with hardware and software necessary to the operations of the golf course without limitation.

3.2 Memberships Records Membership records shall be maintained by the

Manager and submitted! to the Recreation Director on March 1 and September 1 of each year. Such records shall be recorded by category as shown in Exhibit B. Membership tags shall be issued to identify a member using the golf course. In order to track member rounds, the Manager shall establish a sign in book, in which all members must sign each time they play the golf course. Membership lists and names shall not be given or sold for solicitations or advertising.

All membership records will be reported as specified. Members will be required to sign in on a daily sheet and membership rounds will be entered into a computer and reported as specified.

3.3 Greens Fees Greens fees records shall be maintained by the categories

shown in Exhibit B and shall be submitted to the town on a monthly basis.

4. Financial Reports

4.1 Accounting System Manager, at his expense, shall establish and operate

an accounting and reporting system that is acceptable to the Town and its auditors. The accounting system must fairly represent and fully disclose the financial position and results of the financial operations of the Manager in conformity with generally accepted accounting procedures.

4.2 Audit The Town Manager shall appoint an independent certified

accounting firm to perform an audit two months prior to the completion of its fiscal year. The firm chosen will complete an audit based on the Town Manager's requirements. The cost of the audit will be paid for by the course Manager. Operations will be field-audited at unscheduled times during the contract period.

4.3 Monthly Reports Each month the Manager shall furnish to the

Recreation Director a breakdown of monthly receipts including, but not limited to; memberships, greens fees, food and beverage sales, golf cart revenues, driving range revenue, outing/tournament revenue and pro shop sales.

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5. InterrupHon of Operations

5.1 Unavoidable Disruption Neither party shall be liable for damages, nor

shall this Agreement be terminated, nor a default be deemed to have occurred because of any failure to perform hereunder caused by fire, earthquake, flood, explosion, casualty, strike, unavoidable accident, riot, insurrection, civil disturbance, act of public enemy, embargo, war, act of God.

6. The Golf Course Maintenance Plan

6.1 Unless specifically provided for below, the Town shall not be responsible

for the maintenance or repair of the golf course, clubhouse, irrigation system, cart bam, irrigation pump house, chemical storage facility or fuel depot and 60x 40 metal maintenance building. The Manager shall be solely responsible for the maintenance of all aforesaid components compromising the golf course.

The Manager shall be responsible for all repairs and maintenance to the cart-barn, irrigation pump-house, and metal maintenance building located next to the first green. All repairs and maintenance to the clubhouse shall be the responsibility of the Manager. Repairs and maintenance to the clubhouse HV AC system, all kitchen appliances and systems, as well as all bar appliances and related systems shall be the responsibility of the Manager. Replacement of said systems and/or/appliances caused by a complete failure shall be the responsibility of the Town.

6.2 Manager agrees to adhere to the golf course maintenance plan attached

hereto (Exhibit D) and submitted by the Manager with his bid.

6.3 Sand Tra_m Manager acknowledges and agrees that proper maintenance

of the sand traps is of considerable importance to the Town. Manager shall maintain the sand traps and bunkers in first class condition during the golf season. Hand rakes will be provided by the Manager and at least one shall be made available for each sand trap or bunker during the golf season.

6.4 Irrigation All irrigation equipment, including specifically and without

limitation, irrigation pipes, irrigation pups, faucets, sprinkler heads, hoses and any other components ofthe irrigation system, shall be properly winterized by the Manager. Winterization and spring start up is the responsibility of the Manager. All costs of both, start up and winterization are the responsibility of the Manager. Winterization of system shall be done by November 1 st of each year. All repairs to the irrigation system, throughout the year, and for the duration of the term of this Agreement shall be the responsibility of the Manager.

6.5 The Manager shall keep the golf course and the surrounding grounds

including, without limitation, the land bordering the golf course which is visible either from the course or abutting residences, free from debris, trash, garbage, brush and other unsightly matter, and shall provide at its own expense, full trash removal at least once

16

every week. All non playing grassed areas shall be maintained by the Manager. Trees, shrubs and brush adjacent to the clubhouse, cart bam, and maintenance facility shall be trimmed and landscaped, and these areas kept clean and free of debris. The Pro Shop and clubhouse shall be kept in a clean and safe condition, including but not limited to the . lavatories and food preparation areas. All cleaning functions in the clubhouse shall be the responsibility of the Manager.

6.6 Snow and Ice Removal The removal of snow and ice from the

sidewalks and parking lot upon the leased premises shall be the responsibility of the Manager. The Manager shall also be responsible for snow removal on the road to the maintenance bam. Snow removal at both of these locations shall be done in a timely fashion, so as to make sure that emergency vehicles would have access to the property. The maintenance and repair of the parking lot shall be the Town's responsibility.

6.7 The Manager shall make no alteration to the premises without the consent

of the Town in writing, except ordinary maintenance and repairs as aforesaid and renovations as provided in section 6.1. The Manager shall permit the Town officials or agents to enter, at all reasonable times, to view the premises and make repairs and alterations as the Town deems necessary to make a specific repair, or repairs, said action shall not relieve the Manager from the provisions of Section 6.1 and 6.2 above. The Manager shall not use the premises or permit the use thereof in such manner as to make void or increase the rate of insurance thereon. Manager shall comply with the bylaws of the Town and the laws of the State and save harmless the Town for or on account on nonobservance thereof.

6.8 Clubhouse Maintenance: The Manager shall be responsible for all

maintenance and repairs of the clubhouse for the length of this Agreement.

7. Insurance

7.1 The Manager shall maintain with respect to the leased premises and

operations conducted at the leased premises, insurance as follows:

7.2 Commercial General Liability Insurance with no less than the following

limits:

General Aggregate

Products-Complete Operations Aggregate Personal & Advertising Injury

$2,000,000 2,000,000 1,000,000

Each Occurrence Fire Damage Medical Expenses

1,000,000 100,000 5,000

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The Liability Section of the Policy shall include coverage for the application of pesticides, herbicides or fungicides related to the maintenance of the golf course. Such coverage shall be in limits no less than those stated above.

7.3 Workers Compensation Manager shall maintain Workers Compensation

insurance as required under the laws of the Commonwealth of Massachusetts.

7.4 Automobile Manager shall maintain automobile insurance coverage for

all owned leased and hiired vehicles and non-ownership liability for not less than the following limits:

Bodily Injury

Property Damage

$1,000,000 per person $1,000,000 per accident $500,000 per accident

7.5 Liquor Liability Manager shall maintain liquor liability with the

following limits of liability:

$500,000 per person

$1,000,000 per occurrence

7.6 Such insurance shall be placed in responsible companies qualified to do

business in Massachusetts and in good standing therein. The carrieres) shall carry an A.M. Best rating of not less than "A-", nor a size category ofless than size "VIII". Insurance policies shall name the Town as an additional insured party and shall insure the Town as well as the Manager against injury to persons or damage to property as provided. The Manager shall deposit with the Town certificates of such insurance at/or prior to the commencement of the term and thereafter within thirty days (30) of the expiration of any such policies. All such insurance certificates shall provide that such policies shall not be canceled without at least thirty (30) days prior written notice to each insured named therein.

8. Paymel!lts to the Town

8.1 The Manager shall pay to the Town each year the sums as specified in the

Manager's Price Proposal. Payments shall be made monthly based on one-twelfth (1/12) of the total price. Payments are due for the prior month on the first calendar day of the succeeding month.

8.2 Fees Current fee schedule is attached as Exhibit B and made a part of

this Agreement, and is hereby approved as reasonable within the golf industry. The fees as set forth in Exhibit B shall be in effect for the entire five years of the contract. Any additions to fee categories (Exhibit B) must be approved in advance by the Town in writing.

The fees as shown in Exhibit B shall be the maximum fees that the Manager may charge each year. The Manager shall have the authority to charge less. In addition, the Manager shall have the authority to set "discounted fees", after receiving written approval from the

18

Recreation Director. Discounted fees may include but may not be limited to; coupon books for daily fee play, twilight rates, greens fee discounts for juniors or adult residents, etc ... Discounted fees: shall not exceed the maximum fees as established in Exhibit B.

Finally, the Manager is prohibited from eliminating any fee categories as shown in Exhibit B.

8.3 Pilot Program The Manager shall make a yearly "Payment in Lieu of

Taxes" to the Town of Duxbury. Payments of$2,750 shall be made on April 1 and October 1 of each year of this Agreement. Manager shall make total payments of$5,500 each calendar year to the Town of Duxbury. Manager is also responsible for the payment of all sales taxes, withholding taxes and business taxes.

9. Miscellaneous

9.1 N on-Discrimination Manager represents and warrants that it will not,

with respect to managing the golf course facilities, implementing its employment practices and purchasing goods and/or services, discriminate on the basis of age, race, color, sex or national origin.

9.2 Golf Outing Procedure The Town of Duxbury is always concerned

when the golf course is "closed" due to a special event i.e .... Fundraising Tournament, Golf Outing, League Play or any other event that would effectively prohibit play of either members or non-members. Within thirty (30) days of the date hereof, the Manager shall submit to the Town, for the Town's approval, a written procedure for golf Outings and or League play. If such written procedure is not received as required, or is not approved by the Town, then Manager agrees to abide by such procedure as the Recreation Director promulgates. Golf patrons shall be notified of such policies and course closures by conspicuous posting such as on a bulletin board in the pro shop.

9.3 Waiver No assent, expressed or implied, by the Town or Manager to

any breach or default in any term, covenant or condition which this Agreement requires to be performed or observed by the other party shall constitute a waiver or of an assent of any succeeding breach of or default in the same or any other term, covenant or condition hereof.

9.4 Parties: Bound

(a) Except as otherwise expressly provided, those term, covenants and

conditions which, this Agreement requires to be performed and observed by Manager shall be binding upon Manager and its successors and assigns, and shall insure to the benefit of the Town and its successors and assigns, and those terms, covenants and conditions which this Agreement requires to be performed by the Town shall be binding upon the Town and its successors and assigns and shall insure to the benefit of Manager and its successors and assigns.

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(b) Assignment Manager shall not have the right to make any assignment of

this Agreement, or any interest therein, by express assignment, operation of law, or otherwise, without the prior written consent of the Town.

(c) Third Party Rights Nothing in this Agreement, express or implied, shall

convey upon any person or entity, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.

9.5 Notice All notices to the Town shall be addressed to the Town at:

Town of Duxbury Attn: Town Manager

Town Hall / 878 Tremont St. Duxbury, MA 02332

or to such other place as may be designated by written notice to Manager. All notices to Manager shall be addressed to:

Manager's Name Manager's Address Town

Zip

Or to such other place as may be designated by written notice to the Town. Notice shall be sufficient if given by certified mail, postage prepaid; return receipt requested, addressed to the party at its address as described above and shall be effective upon mailing. Unless otherwise notified in writing, each party shall direct all sums payable to the other party at its address for notice purposes.

9.6 Competitive Pricing If required by State Law, any contract entered into

by the Manager in regard to the golf course facilities, shall conform to statutory bid requirements.

9.7 Interpretation This Agreement is being executed and delivered in the

Commonwealth of Massachusetts and shall be governed by, construed, and interpreted in accordance with the laws of that jurisdiction.

9.8 Heading§. The Captions and headings throughout this Agreement are for

convenience and reference only, and they shall in no way be held or deemed to define, modify or add to the meaning, scope or intent of any provision of this Agreement.

9.9 Consent Except as herein otherwise provided, wherever in this

Agreement the consent of approval of the Town or Manager is required, such consent or approval shall not be unreasonably withheld or delayed, and shall be in writing, signed by an officer or agent, thereunto duly authorized, of the party granting such consent or giving such approval.

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9.10 Relationship of Parties Nothing herein contained shall constitute or be construed to be or create a co-partnership agency or joint venture relationship between the Town and Manager.

9.11 Severability In the event that anyone or more of the phrases, sentences,

clauses or paragraphs contained in this Agreement shall be declared invalid by the final order, decree or judgment of any court of competent jurisdiction, this Agreement shall be construed as if it did not contain such phrases, sentences, clauses or paragraphs.

9.12' Integrated Provisions This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, supersedes all prior discussions, proposals, understandings or agreements of the parties with respect to the subject matter hereof, and may be modified only by written agreement signed by both the Town and the Manager.

9.13 Starters and Rangers The Manager shall adhere to the Operational Plan as it relates to starters and rangers as attached hereto in Addendum II.

9.14 American with Disabilities Act

Manager shall be responsible for compliance with the American with Disabilities Act.

9.15 Golf Carts The Manager shall supply motorized golf carts for the use by patrons of the golf course as shall be reasonably required to meet the demand thereof. Manager shall, at its expense, keep the golf carts well maintained, clean, and generally available for daily use.

9.16 Winter Play In case of a mild winter during the period of time that the ground is freezing and thawing, the Manager may elect to use temporary greens. If at all possible, it is the desire of the Town to utilize the regular greens for winter play.

9.17 Disputes

a) Any diisputes arising between the Town and the Manager during the term of this Agreement shall be resolved by the Town Manager. The Manager shall place in writing any reasons for said dispute to the Town Manager. The Town Manager shall have 30 days from the date of receipt of said dispute to respond to the Manager. The decision of the Town Manager shall be final.

b) The parties hereto agree that all actions or proceedings arising under or in connection with this Agreement shall be tried and litigated exclusively in the State Courts located in Plymouth County, Massachusetts. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this

21

Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph.

9.18 SuspensimliDiscipline of golf patrons The Manager shall have the authority to suspend golfing privileges of any golf patron for a period of up to 30 days after written notice is given to the patron. The Manager may request a suspension of golfing privileges for a period longer than 30 days in writing to the Recreation Director. Suspensions for a period oftime that exceeds 30 days must be approved in writing by the Recreation Director. The Recreation Director's decision to uphold or reject a suspension of more than 30 days is final.

10 Indemnification and Liability

10.1 Manager agrees, at its sole cost and expense, to indemnify and hold harmless the Town against and from any and all claims made by or on behalf of any person arising from or in connection with: (i)any act, negligence or fault of Manager, or any of its agents, servants, employees, contractors, invites or licensees, or of any person holding or claiming through or under Manager; (ii) any accident, injury or damage whatsoever caused to any person (other than those caused by the negligent acts or omissions of the Town or its agents, servants, employees or contractors occurring after the date hereof) occurring during the term of this Agreement, in or about the golf course, residential house, driving range and clubhouse, or upon the sidewalks or areas immediately adjacent thereto; (iii) the use or escape of water by bursting of pipes or otherwise; (iv) the failwre to remove snow or ice from the roof of buildings or from the sidewalks and parking lots on or bordering the premises so leased, and (v) any nuisance made or suffered on the leased premises. Further, Manager agrees to indemnify and hold harmless the Town against and from all reasonable costs, reasonable counsel fees, losses, damages, expenses and liabilities incurred in connection with or in defending any such claim or any action or proceeding brought thereon.

11 Fire Cas.!!ill!Y

11.1 Should a substantial portion of the leased premises, or of the property of

which they are a part, be substantially damaged by fire or other casualty, the town may elect to terminate this lease. When such fire andlor casualty renders the leased premises substantially unsuitable for their intended use, a just and proportionate abatement of rent shall be made, and the Manager may elect to terminate this lease if; (a) The Town fails to give written notice within thirty (30) days of intention to restore leased premises, or (b) The Town fails to restore the leased premises to a condition substantially suitable for their intended use within ninety (90) days of said fire or casualty.

12 A. Default by Bankruptcy

It shall be a default under this Agreement if Manager:

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a) Shall be declared bankrupt or insolvent according to the law, or if any

assignment shall be made of its property for the benefit of creditors; or

12 B. Defaultt

It shall be a default under this Agreement if Manager

a) Shall default in the observance, performance of any of its covenants,

agreements or obligations hereunder; or

In the event of a default, the Town shall have the right thereafter, at the Town's discretion, to enter and to re-enter and take complete possession of, and operate and maintain the golf course, and to declare this Agreement ended, and remove Manager's effects, without prejudice to any other or further remedies or rights available to the Town against all loss of revenue and other damages (including reasonable attorney's fees and costs including those for collection of amounts due), which the Town may incur of suffer by reason of a default arising out of action or inaction of the Manager, or termination of this Agreement resulting therefrom. If Manager shall default in the observance or performance of the conditions or covenants of this Agreement, the Town, without being under obligation to do so and without thereby waiving such default, may remedy such default at the expense of the Manager. If the Town makes any expenditures of incurs any obligations for the payment of money in connection therewith including, without limitation, prosecuting or defending any action or proceeding, such sums paid or obligations incurred, shall be paid to the Town by Manager upon demand, with interest at the rate of twelve percent (12%) per annum.

The Manager agrees that a Decision by the Duxbury Board of Selectmen to terminate the Management Agreement will be binding on the Management Entity and that the Management Entity agrees not to contest such a Decision in any judicial or other legal proceeding and will surrender the premises to the Town of Duxbury within 10 days of such a Decision by the Town.

13 Toxic or Hazardous Material

13.1 The Manager shall notify the Town Manager in writing of the use of any

and all toxic or hazardous substances as listed by the Commission of Public Health. The Manager further agrees to discontinue the use of substances determined to be hazardous or toxic by the Town Manager. Manager shall comply with all State and Federal environmental laws.

14 Integrated Pest Management Program

14.1 The Manager will supply to the Town, in writing, within thirty (30) days

of the date hereof an Integrated Pest Management (IPM) program for the Golf Course. If·

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such written procedure is not received as required, or it is not approved by the Town, the Manager agrees to abide by such IPM program as the Town promulgates.

15 Ground Water Management Program

15.1 The Manager shall test the ground water as described below but no less than one test every other year for the term of the contract.

15.1 All Ground Water Monitoring tests, to be performed as outlined below,

shall be done at the Manager's expense from sites previously installed by the Town of Duxbury.

15.2 These simple guidelines below should help future management of the golf course to comply with the spirit of this agreement. The course lies within the Aquifer Protection Zone and it abuts and lies down gradient of Town well fields. This program should help to ensure that the ground water resources under the golf course continue to meet drinking water standards now and in the future.

15.3 Application of Pesticides:

a. Chipco, 26019, Bayleton, Oftanol, Dursban, Roundup are allowed for use at

labeled rates.

b. A mixture ofMCPP and 2,4-D (Lescopar) may be used but is limited to 5.1

gallons per year.

c. No other pesticides may be used without approval of all signatories of this

program:

1. To obtain approval of new pesticides, the golf course

Superintendent must submit complete supporting date to the Recreation Department.

2. The data must consider the post-application fate of the pesticide, leaching

potential, etc.

3. If approved, the active ingredients must be added to the pesticide analysis in the

ground-water monitoring program.

d. Store pesticides in the locked fireproof storage area and adhere to all current

Federal and State pesticide laws, especially including that the pesticides shall be under the supervision of a certified applier.

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15.4 Application of Fertilizers:

a. Total nitrogen (N) application allowed per year:

Location

Area

Application Rate

Greens Tees Fairways Roughs

2.8 acres 3.4 acres 27.3 acres 43.8 acres

5.0 per 1,000 sq. ft

4.0 pounds per 1,000 square ft. 3.5 pounds per 1,000 square ft 3.5 pounds per 1,000 square ft

b. Slow release nitrogen formulas must be used in all applications to minimize

leaching potential.

1. Greens fertilization should contain at least 60% slow release N materials in their

formulation.

2. Fairways, roughs and tees fertilizers should contain at least 30% of the Nitrogen

in a slow release form.

a. Ureaformaldehyde, Methylene Urea, IBDU, Plastic coated (polycoat), and Sulfur

coated urea fertilizers may be considered as slow release fertilizers.

b. No fast release fertilizers may ever be applied at a rate greater than 1 lb N per

1,000 square feet in one application.

15.5 Water Quality Monitoring:

a. Nitrogen monitoring shall be done 1 time per year, at a time neutrally agreed upon

between the Town and the Manager. Pesticide monitoring shall be done once per year, testing all wells individually. Pesticide sampling shall be done in October of each year.

b. Ammonia nitrogen (NH3-N), nitrate nitrogen (N03-N), organiz nitrogen (N-org.)

and total kjeldahl nitrogen (TKN) shall be measured.

c. The active ingredients of all pesticides that have ever been used on the course

shall be measured.

d. Should the N03-n in the water sample from any monitoring welles) exceed a

value of 5 ppm, fertilization use shall be reduced in the proportion to the highest N03-N concentration above 5ppm and up to lOppm or more. (Example: if the highest N03-N concentration in any well is 7ppm, the fertilizer applied would be reduced by (7-5)/5 or 40%. Ifit is 7.1 ppm, the fertilizer applied would be reduced by (7.1-5)/5 or 42%. Ifit is lOppm or more the reduction would be (10-5)/5 or 100%. The fertilizer use to be proportionately reduced is the amount of fertilizer applied during the previous year or

25

growing season. The welles) in which N03-N is in excess of 5ppm shall be resampled at intervals of no more than 2 weeks with fertilizer reductions adjusted accordingly until N03-N concentrations are less than 5ppm for two (2) consecutive samplings.

e. Should the pesticide (either individually or in combination) in the water sample

from any monitoring welles) be found to be 100 ppb or more, or to exceed any federal or state drinking water standard that may be set, then the use ofpesticide(s) found will be suspended immediately, and the welles) will be resampled within two (2) weeks of receipt of the laboratory report by the golf course Superintendent. Should the second sampling not confirm the first, that is, if the pesticides do not exceed the limits stated above, then the pesticide suspension may be lifted after confirmation of the second sampling by a third sampling. Any pesticide findings above the detection limit must be resampled for confirmation. A 5ppb MDL is acceptable.

f. Should the N03-N in any monitoring welles) exceed lOppm for two consecutive

samplings, or should the pesticide resampling confirm the first sampling showing excessive concentrations, then the Town of Duxbury shall conduct a hydrogeologic investigation as soon as possible. The purposes of this study are to determine the specific source area of the contaminants, the area affected, and the area threatened; to determine the feasibility of remediation and to formulate an appropriate plan of action; and to initiate necessary action to prevent any contamination from reaching the down gradient public water supply.

15.6 Report The golf course Superintendent shall provide copies of the monitoring date to the Recreation Department, upon receipt of the pesticide and nitrogen analysis. The Superintendent shall compile the data, and, by February 14 of each calendar year, present to the Town, an annual report of the monitoring and related maintenance activities for the proceeding calendar year. The annual report shall summarize the results of the monitoring reports, shall describe any actions taken based upon the monitoring data as required by this Agreement, shall specify the amounts of nitrogen and of each pesticide applied, and shall report the total gallons of water pumped from the irrigation wells. Finally, the annual report shall relate the past year's record to the proceeding years.

26

16 Incorporation of Specification, IFB and Price Proposals

16.1 The Town's specifications, Invitation For Bids (IFB), and Price Proposal by the

Manager dated are hereby incorporated into this Agreement.

WITNESS our hands and seals day of , 2011.

Approved as to Form:

Robert S: Troy, Town Counsel

Town of Duxbury

Richard R. MacDonald, Town Manager

Board of Selectmen

Shawn Dahlen

Betsy Sullivan

Christopher R. Donato

27

EXHIBIT A

RE]~RESENTATIONS BY MANAGER

Manager is a management firm with experience in managing and operating a golf course or comparable business enterprise.

As part of this agreement for managing the North Hill Golf Course and Country Club, the Manager certifies that (1) it is thoroughly familiar with the unique turf management requirements in this region of the country and (2) it has sufficient personnel and equipment to perform the maintenance and golf operations provided for herein.

28

EXHIBITB

Fee schedule

29

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o >- >- >- >- >- ~". >- >- >- >- >- EXHIBIT C

THE OPERATIONAL PLAN

PRO SHOP

The Pro shop will be stocked with quality merchandise as well as with a modem computer for computerization of all departments, including greens fees and cart fees. Weekly and/or monthly reports will be forwarded to the Town of Duxbury, Recreation Department.

All programs will be designed to include men, women, junior and senior golfers. Lessons will be offered, by a PGA professional, and encouraged so that the general public can further enjoy the course. Junior golfers will be offered clinics during the summer months. All golf league and play decisions are governed by the written policies discussed in Section 9.2 above.

The Pro Shop shall be staffed while the course is open, and players will be accorded courteous service in response to equipment needs and rulings where necessary and related to the game

TEE TIMES - Starters/Rangers

The flow of all golfing traffic will be administered by Golf Starters and Course Rangers. They will be assigned and supervised by the golf Professional.

Tee time policy: 18 hole rounds will be accommodated for all weekday rounds. All 18 hole rounds on weekends will be accommodated for all members and non-members of North Hill and may be booked seven days in advance. All 18 hole rounds will be accommodated to play through the turn with limited wait time.

The Manager may at hislher discretion reserve every third tee time for non-member play on weekends from the hours of 7am to 10arn May thru September inclusive. The Manager may at his discretion remove tee time booking privileges for any member who fails to show for a booked tee time without 24 hours notice. Official golfing hours shall be 7:00AM to sundown on weekdays, and 6:00AM to sundown on weekend and holidays. The Manager may at hislher discretion modify the opening/closing of the course as sunrise and sunset hours change during the calendar year.

All golf play will be supervised by the Manager's designee. He will have a team consisting of a Class A professional who will be responsible for managing the Pro Shop,

30

Golf Repair Facility, Starters and Rangers. Fivesomes will not be allowed unless proper written permission is obtained in advance from the Town.

THE BAR

The bar shall be operated in accordance with the tenus and conditions set forth by the Board of Selectmen and pursuant to Section 1.3 paragraph (b) of the: Management Agreement.

MEMBERSHIPS

The number of memberships for sale shall be limited. No more than 200 regular adult memberships in various categories (shown on Exhibit B) shall be sold. The Manager is prohibited from offering less than the total of 200 adult memberships. Memberships shall be may be purchased at any time during the calendar year. Further the Manager may not impose a "cut-off' date for the purchase of memberships. Any changes to this shall be approved by the Town in advance.

The Manager shall make available for sale each year a minimum of 150 Resident Junior memberships. The Manager shall be prohibited from offering less than 150 Resident Junior memberships but shall not be required to sell any more junior memberships than this. No Non-Resident Junior memberships shall be sold.

Juniors shall be defined as any person 17 years of age or younger at this time the membership is purchased. The Manager may limit by policy the play of Juniors, both member and daily fee. Such policy shall be submitted to the Town within thirty days of the commencement of this Agreement. Such policy must be approved by the Recreation Director after consultation with the North Hill Advisory Committee before it is implemented by the Manager.

31

EXHIBITD

YEAHLY GOLF COURSE MAINTENANCE PLAN

1. All equipment, maintenance and repairs will, to the extent possible, be performed by the Manager during the: closed season.

2. The course will be maintained by a staff of at least: one (1) full-time worker and three (3) summer laborers all of whom shall work under the supervision of the full time golf course Superintendent. The golf course shall be maintained under the following specification:

A.MOWING

1. Greens mowed at 3/16" four times weekly, May I-Oct 1, with an additional Saturday/and Sunday mowing June 4 through Labor day.

2. Fairways mowed at 1" three (3) times weekly May I-Oct 1.

3. Tees and aprons mowed at %" three (3) times weekly May l-Oct 1.

4. Rough to be mowed at 1 W' once weekly May I-Oct 1.

5. Weedwacking areas will be done on an as needed basis.

In addition, mowing of all other grass areas on the golf course, as well as tree trimming, shall be performed regularly by Manager. All mowing will be done, except for rain or unexpected equipment failure, on schedule.

Mowing of fairways shall be done with light -weight fairway mowers. It will be acceptable to mow greens with lightweight machines on weekends, and holidays.

B. FERTILIZER

1. Greens and aprons fertilized six (6) times with a total of six (6Ibs) pounds of nitrogen.

2. Tees fertilized six (6) times with a total of six (6 lbs) pounds of nitrogen.

3. Fairways and roughs fertilized twice with a total of six pounds (6lbs) of nitrogen. Rate of application for the above as specified in Management Agreement.

1/25/2011 C. AERA nON & TOPDRESSING

32

1. Greens shall be core-aerated twice, spring and fall. Greens shall be topdressed with sand and overseeded with bentgrass during the aerating process.

2. Not including aeration, greens shall be Topdressed an additional four (4) times per year.

3. Tees aerated and seeded twice, spring and fall.

4. F airways aerated once, spring or fall.

D. PESTICIDE APPUCATIONS

1. Fungicide applications on greens as needed with a minimum of ten (10) times per

season. (Granular snow mold protection applied before first snowfall on all greens).

2. Insecticide application on greens as needed.

3. Herbicides application to tees only for pre-emergence crabgrass protection.

4. Fairway pesticide application to be negotiated on an as needed basis.

5. It is the responsibility of the Manager to properly identify turf diseases, pests,

weeds, etc ... , properly diagnose the cure and carry out the proper treatment.

E. SAND TRAPS

1. Raked twice weekly. Weedwacked as needed.

2. Edged as needed but at least once before June 1 of each year.

3. Sand replenishment is the Manager's responsibility.

F. IRRIGATION SYSTEM

1. Spring start up operation and winterization to be done by the Manager.

2. Sprinkler repairs to be done by the Manager, including solenoids, valves, wires

etc ...

3. Pipe breaks to be repaired by the Manager.

4. Replacement of satellite boxes, clocks and other components related to the

operation of said satellite boxes are the responsibility of the Manager

33

5. All repairs, improvements and yearly maintenance costs associated with the

irrigation system shall be the responsibility of the Manager. Any extraordinary repairs, i.e .... complete pump failure shall be the responsibility of the Town.

G. RAIN CLOSING

1. Manager shall keep the course closed for carts as well as for play when dictated

by weather.

H. GREENS AND TEES

1. Rotation ofpins and tee markers shall be made at least every day.

2. At the beginning of each day a container shall be placed adjacent to each tee

containing a suitable seed and loam mixture to be used by the public in reseeding damaged tee areas. The mixture shall be replenished daily and the container taken in daily.

1. WATER CONTAINERS

The Manager shall furnish (2) water containers, to be filled with water and ice at the beginning of each day (and replenished as needed) for the consumption of golf course patrons. The containers shall be placed at the third (3 rd) and sixth (6th) tees. The Manager shall furnish paper cups for each container, and the containers will be taken in each night.

1. BALL WASHERS

Ball washers shall be maintained and repaired by and at the expense of the Manager. The containers under the ball washers shall be cleaned at least once a day.

K. COURSE RANGERS AND STARTERS

Manager shall employ at least one (1) Starter and one (1) Ranger during the period May 15th through September 15th inclusive. Minimum hours for the Starter and Ranger shall be from the opening of the course to 12 noon, Wednesday thru Sunday. The Ranger shall patrol the nine holes to oversee the implementation of the golf course rules and regulations. The Starter shall be stationed at the first (1) tee and shall assist golf traffic beginning their round and/or assist golfers beginning a second nine. The Starter is to ensure that smooth flow of golfing traffic as well as making sure all golfers have paid or

34

in the case of members that they have signed the rounds of play book. It is not acceptable to have the Starter to also be the Ranger during the same shift.

L. UNUSUAL CONDITIONS

Manager shall use all reasonable efforts to rectify and avoid any damage or condition which threatens to damage the vegetation at the facility, including those caused by unusual or severe weather, organisms and/or fungus or like problems. Also, in order to protect the vegetation, no play should be allowed on the golf course while frost is present.

M. REPLACEMENT OF SMALL EQUIPMENT

Manager shall repair andlor replace tee markers, pins, water containers, flags, cups, golf directional signs, stakes and markers on the course at its own expense.

N. OVERSEEDING OF FAIRWAYS

Beginning with the year 2009, the Manager shall aerate and overseed, with bentgrass, three fairways. The spread rate application shall be mutually agreed upon by the Town and the Manager. Each year following the year 2009, the Manager shall identify and overseed three fairways after consultation with the Recreation Director. The Town shall be consulted concerning the choice of fairways, and the Manager shall continue this process of overseeding three fairways every year for the duration of the contract. It is preferred by the Town of Duxbury that the overseeding of fairways be done in the fall season.

O. CARTPATHS

Repair and maintenance of the asphalt cart paths is the responsibility ofthe Manager.

35

Exhibit E

North Hill Golf Course Financial Information

36

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LL (.') I- EXHIBIT "D"

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT CLERK'S OFFICE John Adams Courthouse

One Pemberton Square, Suite 1200 Boston, Massachusetts 02108-1705 (617) 725-8106

March 14, 2011

Robert S. Troy, Esquire Troy Wall Associates

90 Route 6A

Sandwich, MA 02563-1866

RE: No. 2010-J-0583

Lower Ct. No.: MICV2008-04641

JOHNSON GOLF MANAGEMENT, INC. vs.

TOWN OF DUXBURY & others

NOTICE OF DOCKET ENTRY

Please take note that on March 14, 2011, the following entry was made on the docket of the above-referenced case:

ORDER: " ... The town shall seek reconsideration of the preliminary injunctive orders ... r will retain single justice oversight for purposes of any requests for interlocutory relief resulting from the action of the Superior Court judge ... " (Sikora, J.) *Notice/Attest/Image.

Very truly yours,

The Clerk's Office

Dated: March 14, 2011

To: Stephen R. Follansbee, Esquire Robert S. Troy, Esquire

John J. Geary, Esquire

Middlesex Superior Court Dept.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

lO-J-·S83 JOHNSON GOLF MANAGEMENT, INC.

vs.

TOWN OF DUXBURY, et al.

ORDER

The defendant town of Duxbury (town) has submitted a petition for interlocutory relief pursuant to G. L. c. 231, §

118.

The town has captioned the petition as one pursuant to the

second paragraph of that section.

In substance, it appears to

seek relief under the first paragraph. Accordingly, I treat it as a petition under the first paragraph.

The town has submitted also substantial supporting materials including a memorandum of law, factual exhibits A through N, and a letter from town counsel dated March 3, 2011, alleging the potentially mab:=rial fact of "stop payment" orders by plaintiff Johnson Golf Management upon two monthly checks payable to the town under the management services contract between the parties.

In the present circumstances and for the following reasons, I direct the parties to take the following procedural steps.

1. The town shall seek reconsideration of the preliminary injunctive orders entered by the judge of the Superior Court on

November 24, 2010.

See Superior Court Rule 9D.

2. As part of the motion for reconsideration, the town

shall include its four main grounds presently submitted to me at pp. 1-2 of its memorandum of law in support of relief under G. L. c. 231, § 118.

3. The town shall include also, in probative form, its allegation of nonpayment of monthly amounts totaling $20,000, from Johnson Golf Management, Inc., as appearing in paragraph 3 of its letter to this court dated March 3, 2011.

4. I will retain single justice oversight for 'purposes of any requests for interlocutory relief resulting from the action of the Superior Court judge upon the motion for reconsideration.

Reasoning.

1. The town has submitted extensive argument to me in

support of its interlocutory application.

I express no views

upon the merits of those arguments at this time.

However, from

the record I do observe that the Superior Court judge has never had the benefit of those arguments about the appropriateness of

continuing preliminary injunctive relief.

That circumstance

appears to result from the procedural posture of the case in its

last appearance before him.

The purpose of that occasion was a

decision upon the town's motion for summary judgment.

The judge

disposed of the motion by a ruling of denial accompanied by a detailed explanatory memorandum of law. The reinstatement of the preliminary injunctive order in favor of the town appears to have developed spontaneously from oral. argument of the summary

2

judgment motion.

See the Memorandum of Decision at p. 7.

The

issue of renewed preliminary injunctive relief does not appear to

have received written briefing by the parties or to have received

substantial prepared oral argument by them.

2. Consequently the more elaborate arguments against the

reinstatement of preliminary injunctive relief now submitted to

me appear not to have come before the injunction judge.

He must

have the benefit of those arguments and of opposing argument from

Johnson Golf Management, Inc.

The absence of those contentions

deprives him of legal argument to which he is entitled in the

first instance ..

If either party wishes to seek interlocutory

relief from his resulting decision and order upon

reconsideration, both the parties and I will have the added

benefit of his analysis and disposition.

3. The ruling of the injunction judge 1S especially

important in this case because the record indicates his

substantial experience with, and knowledge about, the dispute.

. .

4. Also, although motions for reconsideration under

Superior Court Rule 9D have suffered from considerable excessive

use or abuse in recent years, this instance may present an

appropriate occasion for reconsideration.

Reconsideration is

appropriate in situations of newly discovered evidence, change of

circumstance, or clear error of fact or of law.

See Barbosa v.

Hopper Feeds, Inc., 404 Mass. 610, 622 (1989); and Peterson v.

3

Hobson, 306 Mass. 597, 600 (1940). The town's present allegation

of nonpayment of monthly obligations by Johnson Golf Management,

Inc., under the terms of the management services contract

effectively reinstated by the judge's preliminary injunctive

order of November 24, 2010, may present a new circumstance

warranting such reconsideration.

5. Finally, as a general axiom, an appellate court will not

review the work of a trial court upon the basis of argument

presented for the first time on appellate review.

E . g., Carey v.

New England Organ Bank, 446 Mass. 270, 285 (2006) i The General

Convention v. f'/lcKenzie, 66 Mass. App. ct. 836, 842 (2006).

6. For continuity and for the expedition requested by the

town, I will promptly address any subsequent interlocutory

petitions.

By the Court (Sikora, J.),

/f~ fh, )11MJ--

Assistant Clerk (J

Entered:

March 14, 2011.

4

EXHIBIT "E"

TELEPHONE (781) 648-J500

Clerk of Court, Civil Middlesex Superior Court 200 Trade Center Woburn, MA 01801

FOLLANSBEE AND McLEOD, LLP

AITORNEVS AT LAW

536 GRANITE STREET, 3kb FLOOR EAST BRAINTREE, MASSACHUSETTS 02184

April 4. 2011

Re: Johnson Golf Management v. Duxbury No.08-04641-B

Dear Sir/Madam:

Enclosed please find:

1. Emergency Motion For A Stay of Court's March 30, 2011 Order.

2. Certificate of service

Thank you for your attention

Very truly yours,

fil,J:Ji#

SRP/nb

cc. Robert S Troy, Esq.

E. David Edge, Esq. Robert W. Galvin, Esq.

FACSIMILE (781) R4R-2210

'.

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DOCKET NO. 08-04641-B

JOHNSON GOLF MANAGEMENT. INC., PLAINTIFF

V.

TOWN OF DUXBURY, AND

NORTH IDLL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN, CHAIRMAN, SCOTT WlJJ'J'COMB, ROBERT M. MUSTARD, JR., MICHAEL MARLBOROUGH, ANTHONY FLOREANO, MiCHAEL T. RUFO, THOMAS K. GARRITY, RICHARD MANNING, W. JAMES FORD, AND GORDON CUSlHNG (EX OFFICIO)

and CALM GOLF,·INC., AND CHARLES LANZE'fTA DEFENDANTS

PLAINTIFF'S_El\1ERGENCY MOTION FOR A STAY OF COURT'S ORDER OF MARCH 30.2011 PENDING APPELLATE REVIEW ,

Now comes the Plaintiff and moves that this Court issue a stay of its March 30, 2011 order

vacating the preliminary injunction issued by this Court on February 3, 2009 and re-issued on

November 24, 2011 and for cause therefor assigns the following:

1. This Court made detailed findings on February 2, 2009 and November 24, 2010 which

included the following:

a" "Johnson Golf has established a likelihood of success on the merits of at least one, ifnot several of its many claims." (Page 6, Feb. 2, '20 1 0)

"

h. "",There is no harm to the Town in enjoining it for the duration of this case. The interest of the Town is that North Hill be operated and maintained at all times. Johnson Golf has been carrying out these tasks with some success for many years. This court ordered continuation of the status quo, therefore, would not harm the Town!' (Page 7, Feb. 2, 2010)

c. "There is significant evidence in the record to suggest that the defendant

did not act in good faith in rejecting all of the proposals pursuant to the first RFP. In his affidavit town manager, Richard MacDonald, states that he rejected the initial bids because some of the evaluators failed to supply composite scores in accordance with the initial RFP. But he does not offer any explanation why he decided to reject all of the bids rather than pursue the obvious solution, which was to ask the evaluators to submit composite scores. Moreover, by failing to explain. his reasoning and writing, MacDonald failed to meet the requirements set forth by G. L. c. 30 B §9. A fact that further suggests a rush to judgment to prevent the plaintiff from being awarded the contract."

d. "Once a government organization has put a public contract out to bid with certain conditions, the submission of the bid on those conditions creates an implied contract obligating the solicitor to those conditions." (Nov. 24, 2010, Page 5)

e. ':'It was not the Court's intention, however, to permit the town to award a contract to another company during the pendency of this action and, thereby, greatly complicate its ability to grant permanent injunctive relief, if appropriate, following the conclusion of this case." (Nov. 24, 2010, Page 7)

2. A Single Justice of the Appeals Court has reviewed and affirmed this 'Court's prior orders

and has retained jurisdiction of this matter pending further orders of the Superior Court.

3. The Plaintiff will seek review by the Single Justice in a. timely manner of the Court's·

decision of March 30t 2011. In addition to the issue of the appropriateness of dissolving

the injunction, the Plaintiff will seek a review ofthe legal authority of the Town of

. ~

Duxbury to reject the proposals of Johnson Golf and CALM Golf pursuant to

Massachusetts G.L. c. 30B, some eighteen months after the Town awarded a contract as a

result of the January 2009 RFP process.

2

Wherefore, for the foregoing reasons, Johnson Golf respectfully requests that this

Honorable Court:

l. Issue a temporary stay of its March 30, 2011 order vacating the preliminary injunction

enj oining the Town of Duxbury from awarding the Contract to any person or entity other

than Johnson Golf during the pendency of this action until such time as a decision of the

Single Justice of the Appeals Court is issued.

2. Enter such other relief as the Court deems meet and just.

April 4, 2011

The Plaintiff, By its attorneys,

~

BBO #173820

Richard M. McLeod, Esq. BBO# 555134

FOLLANSBEE, & McLEOD, LLP 536 Granite Street

Braintree, MA 02184 781-848-1500

3

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS.

JOHNSON GOLF J\llANAGEMENT, INC., PLAINTIFF

v.

TOWN OF DUXBURY, ETAL and CALM GOLF, INC., AND CHARLES LANZETTA

DEFENOANTS

SUPERJOR COURT DOCKET NO. 08-04641-B

CERTIFICATE OF SERVICE

I, Stephen R. Follansbee, hereby certify that a true copy of Plaintiff's Emergency Motion For Stay of March 30, 2011 Order was served upon counsel for Town of Duxbury, David Edge, Esq., counsel for CALM Golf & Charles Lanzetta and Robert W. Galvin, Esq. counsel for Pilgrim Golf, LLC by means of facsimile transmission and first class mail to

Troy Wall Associates

90 Old Kings Highway

Sandwich, MA 02563

Facsimile 508 8885701

David Edge, Esq.

Geary And Associates

161 Summer Street

Kingston, MA 02364

Facsimile 781 5850332

Robert W. Galvin, Esq. 10 Enterprise Drive Duxbury, MA 02332 Facsimile 781 8371030

Signed under the pains and penalties of perjury this 4th day of April, 2011.

TROYWALL ASSOCIATES ATTORNEYS AND

COUNSELLORS AT LAW 90 ROUTE6A \NDWlCH, MASSACHUSETTS 02563-1866

PHONE: (508) 888-5700

CERTIFICATE OF SERVICE

I, Robert S. Troy, do hereby certify served a true copy of the Defendant, Town

Motion to Strike and Emergency

Reconsideration by mailing same first postage prepaid to:

Stephen R. Follansbee, Esquire Follansbee and McLeod, LLP

536 Granite Street, 3rd Floor East Braintree, MA 02184

John J. Geary, Esquire E. David Edge, Esquire Geary & Associates

161 Summer Street Kingston, MA 02364

Deborah I. Ecker, Esquire

Brody, Hardoon, Perkins & Kesten, LLP One Exeter Plaza

Boston, MA 02116

Robert W. Galvin, Esq. Galvin and Galvin

10 Enterprise Street, Suite 3 Duxbury, MA 02332

Robert S. Troy

DATED: April~ 2011

that I have of Duxbury's,

Motion for

class

mail,

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