9.b Memo re Redevelopment Agreement
MEMORANDUM
Date: February 6, 2020
To: City Administrator Ken Cammilleri
From: City Attorney Eric Sherburne
RE: Water Tower Barn – Scandia Heritage Alliance Redevelopment Agreement draft V.3
I reviewed the draft of the Redevelopment Agreement (V.3) prepared by Mr. Herman on
January 31, 2020, which you forwarded to me on February 4.
The document appears to be typical of documents of the type and consistent with the terms
negotiated to this point between your office and SHA. I have only two continuing concerns.
First, I recommend that “Barn” should be defined with enough objective detail that the
tangible thing that is the Barn could be identified from the document. I would prefer to see
a sentence in Section 1.a. something like:
“Barn” means the wooden tank-house building measuring approximately ___’
wide by ___’ long by ___’ high, believed to have been originally constructed circa
1895, located at XXXXX Olinda Trail until 2014 when it was disassembled, and
presently stored by __________ at __________ , pending reassembly.”
(I do not have any personal knowledge of the specific facts; these details are from a couple
of newspaper articles online.)
The point is to describe what the Barn is as a tangible thing – not its importance, beauty, or
historical significance, but objectively what it is. (Imagine instructing somebody to go out
and get it or touch it.) The City should endeavor to avoid any potential confusion regarding
what the Barn is, seeking to minimize any risk of inconsistent understandings between the
parties.
Second, in Section 15.5(d), there is a “recover actual damages” remedy which would enable
SHA to sue the City, in the event of a breach by the City, to recover as much as SHA has spent
on the project. Such as remedy, if included at all – it would offer greater protection for the
City to exclude it entirely – should be limited to a breach by the City resulting from something
seriously, willfully wrongful. I suggest inserting, at the beginning 15.5(d), “Only in the case
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February 6, 2020
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of a malicious breach by the City,…” That would avoid exposing the City to a potential
breach of contract claim for whatever amount SHA may have decided to spend on the project
to that point, unless the City were to breach with a “screw you” attitude. (Please pardon the
colorful language, but “screw you” is a very practical illustration of “malicious.”)