Kate Cook: Here's what drove Portsmouth City Council decisions on McIntyre project

This statement, made at the City Council meeting on April 3, 2023, was cleared with city legal counsel.

First, I want to preface my comments by noting that I have stayed quiet on this matter since taking office because of litigation filed before I entered office. After entering office, that litigation and ongoing contract negotiations, which are matters the council handles in nonpublic, kept me from commenting publicly in order to protect the city and fulfill my duty as a city councilor to do no harm.

However, at this point, following a year of contract negotiations that have resulted in a stalemate, I feel it is important to make sure the record is clear.

Over the last 15 months, I have listened as residents have made suggestions about what could be done with the McIntyre site once we acquire it, including moving forward with the “Binnie Plan,” bulldozing the site and building a park, and most recently, engaging local design professionals who have a vested interest in the city. While I appreciate all the effort and thought that has gone into these suggestions, I want to make sure the public understands the situation fully, why those suggestions have not been entertained, and why and how we arrivedat this point.

When this council entered office in January 2022, we were facing not one, but two lawsuits relating to the McIntyre. The Roberts, et.al. suit asked that we reverse a decision of the prior council to terminate the contract with Redgate/Kane. That contract termination was made in December 2021 by the prior council without following the provisions in the contract to legally terminate it. The second lawsuit from Redgate/Kane requested damages in the tens of millions of dollars for terminating the contract, again without following legal contract provisions.

The council settled the first case by taking action on the second case and reversing the prior council decision. Why, you ask? The second case complicated our options. Redgate/Kane in its suit against the city asked for the court to prevent the city from taking any further action on the McIntyre project, and that request was pending before the judge. Legally this meant that the city could not talk to the GSA or National Park Service without significantly weakening our case.

We could not take any action at all on the McIntyre without being seen as acting contrary to the court process. The GSA had also given the city a short deadline of two weeks to speak with them before they proceeded to dispose of the property.

This is the reason we did not have all the options before us that have been suggested in this chamber, in newspaper editorials, and on social media pages. This council’s hands were tied.

The decisions made prior to our entering office in 2022 severely limited the council’s options.

Under the deadline from the GSA, without the ability to even talk to them, the council was left with only two options:

1) Go to court and let the case play out over several months or years, forever losing the opportunity to acquire the McIntyre property given the GSA deadline and our inability to talk with them, and also likely losing tens of millions of dollars due to the violation of the contract provisions with Redgate/Kane, or

2) Negotiate with Redgate-Kane to settle the lawsuit.

Again, we did not have the option to choose another partner, open bids, consider other proposals, or even talk to the GSA or the NPS. Doing so would have been a detriment to us in a pending litigation. We only had two defensible options – go to court, or settle.

As everyone here knows, this council chose to settle the case. Unfortunately, due to the contract termination in December 2021 and the liability that opened us to, our settlement options were not as favorable as I would have hoped. This council followed legal advice and got the best deal possible for the city in order to avoid liability of tens of millions of dollars to city taxpayers. We hoped we could move forward with our development partner on the Community Plan, which was a much better result than paying out damages that could increase taxes by anamount most taxpayers could not imagine.

The settlement agreement also removed any future liability to the city for the actions that were taken in December 2021, or anytime prior to the signing of the settlement agreement. It bound us to working with Kane on a proposal to the GSA and National Park Service to build the Community Plan. It had no stipulations on the GSA or the National Park Service, because they were not party to the lawsuit. So, we not only had to negotiate with Kane, but also with the GSA and NPS moving forward.

This council has worked hard to fulfill our obligations in the settlement agreement, because it is a legal contract, and I am sad that we did not reach an agreement with our development partner on all the necessary provisions to move forward with a proposal to the GSA and National Park Service by our deadline last Friday. Since the GSA and NPS rejected our project, we have lost the ability to acquire the building through the Historic Monuments Program.

Again, while I truly appreciate the efforts of our community to continue to make proposals for the McIntyre site, we as a council are not legally in a position to opine on possibilities or move forward now with any proposal without consulting with our outside lawyers. We do not know whether the city will have any future option at all at the McIntyre site. An apt phrase for today is “the ball is out of our court.” Only the GSA can make the call on next steps with the McIntyre site, because they own it, not us. We are eagerly awaiting their decision on what they will do.

Kate Cook is a Portsmouth city councilor.

More: Did feds give Portsmouth a way out of McIntyre project? Here's what could come next.

This article originally appeared on Portsmouth Herald: Kate Cook: Here's what drove City Council decisions on McIntyre deal