Petersen Pool & Rink Project

Where We Stand

Progress on the Petersen Pool/Rink Project has unfortunately moved away from the building site and into the courts. As you may have read in the paper, Mayor Kokoros made the decision to terminate the contract that Braintree had with E Street LLC to build the Petersen Pool/Rink complex. The termination was based on E Street's failure to meet three key contractual obligations:

They never produced complete design plans.
They did not obtain the required building permits.
They were unable to secure financing for the project.

Unfortunately, the decision to terminate the contract was met with strident objections from Paul Cokinos of E Street, who has now plowed $1.2 million dollars of his own money into the project. Mr. Cokinos contends that the project had numerous problems from the start, citing extensive drainage difficulties on the building site, as well as delays and cost increases created by the pandemic. He maintains that he made a good faith effort to move forward despite these circumstances and hired a lawyer to bring suit against Braintree, claiming that the decision to terminate the contract has no basis in law.

The first part of this suit was Mr. Cokinos' request for a preliminary injunction to

Halt any efforts by Braintree to hire a new developer for the project
Lift a stop work order on project construction
Restore E Street's contractual rights to build & operate the facility

Details of the Case

This request was heard in Superior Court by Judge Mark Hallal. Central to the case is a dispute over whether the drainage issues and the pandemic itself legally constitute "unavoidable delay."

The contract signed between Cokinos and Braintree does identify a set of extenuating circumstances that would require Braintree to lengthen the anticipated timeline for the project. Mr. Cokinos argues that his difficulty in meeting the criteria to obtain financing for the project is chiefly related to the extensive remediation required for drainage on the site, coupled with a pandemic-driven spike in overall construction costs.

Braintree, on the other hand, pointed out that no stop work order on the construction was ever issued by either Governor Baker or Mayor Kokoros because of Covid, and in fact, no claim of "unavoidable delay" was ever made by E Street until Mr. Cokinos was notified that he was in default of the contract and that the contract would therefore be terminated.

The Verdict

The good news for Braintree is that Judge Hallal ruled in Braintree's favor. The judge agreed with Braintree that "unavoidable delay" does not apply in this case, and that E Street does not have financing for the project nor has it met the deadlines established by the contract.

It's great to have those facts established for the legal record, but unfortunately, Mr. Cokinos still has a second suit pending against Braintree. In this case, he is asking to be reimbursed for the $1.2 million that he invested in drainage remediation AND to be compensated for lost profits due to the fact that he will no longer be the operator of the facility.

In Judge Hallal's written decision to deny the preliminary injunction, he asserts that Mr. Cokinos failed to demonstrate a likelihood of success for his claims against the Town of Braintree. This means that the judge does not think that Mr. Cokinos has much of a case. Given that assessment, I hope that Braintree will move forward aggressively to put an end to the litigation by asking the court for a summary judgement to put the case on a fast track to conclusion. There's no good reason to let this languish when it seems like we have the law on our side.

Will we ever have a pool/rink complex?

At the outset of this process, I was cautiously optimistic that the Petersen Sports Complex would be built. However, now that we have been though two failed efforts, it seems clear to me that if we want a pool/rink complex, we need to find a new path forward. In order to do that effectively, we need to look at the model that has been used before to try and identify what we should do differently.

Here's the basic structure of the deal:

Construction Phase

Braintree's Role

Provide land on which the complex can be built.
Allocate money from the Petersen Pool Trust

Developer's Role

Fund (or acquire financing for) construction
Produce all construction requirements including
- complete architectural plans
- required construction permits.
Oversee daily operations at the construction site

Operational Phase

The developer will:

handle all operations and maintenance of the facility.
keep all profits from the facility.
pay rent to Braintree annually, according to an established rental schedule.

In this model, the developer gets the lion's share of any financial profits earned by the facility, but also takes all the financial risk, while Braintree's role is primarily that of a landlord. I have only heard informal estimates for what an athletic complex would cost to build, but they are all upwards of $20 million. At its height, the Petersen Pool Trust only ever had 1/10th that much money. So the onus on the developer is indeed great. I think this may explain why Braintree has been unable to attract many developers with interest in the project, and of those who were willing to try, none so far have been able to acquire financing.

Ultimately, Braintree needs a new path forward and now is the time for a revised road map to be produced. This is the conversation we should be having so that if Braintree can get out from under the litigation we are entangled in with E Street, we will be ready with a new plan that has the potential to lead to the athletic complex we all want.