by Jim Bouton
If your Board approves these principal terms, then we would work with you and the City’s attorneys to draft a formal agreement by the end of the month, and to have all necessary and authorized officials execute the agreement with us within a few days thereafter.
Given the strong interest that the citizens of Pittsfield have shown in the fate of Wahconah Park, if the July 23rd meeting and its agenda are publicized in advance we would expect the meeting to be very well attended. We are available to meet with you and any of your fellow Park Commissioners individually or collectively at your convenience to answer questions, address concerns, and entertain possible modifications to our proposal prior to the 23rd.
We do not expect that we will be the only ones making a proposal at the meeting. We welcome a full discussion of alternative proposals by other groups, and we acknowledge that your Board may choose to endorse a group other than ours.
We believe, however, that we are the only all-Berkshire group with a commitment to keeping professional baseball permanently in Wahconah Park, and that our partnership represents the financial strength and operating experience necessary to make it happen.
In keeping with our policy of making our goals and actions open to public view and comment, we will be making this letter available to media outlets.
Thank you for your assistance.
Sincerely,
Chip Elitzer
JULY 17, 2001
Open Letter to the Parks Commission, Mayor, and City Council
Mr. Clifford J. Nilan, Chairman, Board of Park Commissioners
The Honorable Gerald S. Doyle, Jr., Mayor of Pittsfield
Mr. Thomas Hickey, Jr., City Council President
Gentlemen:
Once again, I am writing on behalf of my partners and, we believe, the strong majority of the citizens of Pittsfield, to ask for your support—or at least your prompt consideration—of our proposal for a long-term lease on Wahconah Park. If action is not taken in the next few weeks, we believe that Pittsfield risks losing professional baseball not just for 2002, but permanently.
We do not believe that we are overstating the risk that Pittsfield runs. Consider:
1. The Berkshire market is not large enough to sustain more than one professional baseball team.
2. Pittsfield has enjoyed a “natural monopoly” on professional baseball in this county for the better part of a century precisely because would-be competitors recognize this fact.
3. If Pittsfield fails to field a team for the 2002 season, that will create a void that North Adams may fill with their existing Wahconah-like ballpark.
4. Once North Adams has professional baseball, it is unlikely to relinquish it, and the economic reality of “natural monopoly” will keep us and probably any other group from trying to re-establish baseball in Pittsfield.
5. The only site in Pittsfield that can host professional baseball in 2002 is Wahconah Park.
6. The only group with a public proposal to bring a professional baseball team to Wahconah Park in 2002 is the partnership of Jim Bouton, Eric Margenau, and myself. We have proposed to maintain and enhance Wahconah at no cost to the taxpayers.
7. By Labor Day, most existing holders (and potential sellers) of existing independent league franchises will have made plans for the 2002 season, and our options for acquiring a franchise will be limited.
Mr. Nilan, we have not received a reply to our July 10th proposal to you, but we have read in the Eagle that the Board of Park Commissioners will not meet on July 23 as we originally anticipated, and that you do not see any urgency.
Mayor Doyle, you have told us that you will not support any professional baseball proposal for Wahconah until and unless Berkshire Sports & Events “folds its tent.” At the City Council meeting last Tuesday night, you raised your hand (among a 10% minority) when I asked who still supports a new stadium.
Councilors, most of you have told me in one-on-one conversations that you will not entertain seriously any alternative proposals until you hear from Berkshire Sports & Events that they’re definitely giving up any thoughts of building a new stadium.
The two principal backers of Berkshire Sports & Events have been MediaNews Group (the parent of the Berkshire Eagle) and Berkshire Bank. Yesterday, Jim Bouton and I met with the Editor of the Eagle. He denied emphatically that the owner of the Eagle is trying to block our proposal, and pointed to the “For Sale” sign on the West & Center property as a clear signal that the “Stadium—Yes!” plan is dead. This morning, Jim Bouton and I met with a senior representative of Berkshire Bank, who carefully stated neither support nor opposition to our plan, but told us that Berkshire Sports & Events was being dissolved.
In a front-page article in the Eagle on July 10, MediaNews Group CEO Dean Singleton was quoted as saying that a new stadium “would work just as well in North Adams, and we own newspapers in both places.” Although Berkshire Bank is not making such a suggestion, it also has a public-spirited interest in the well being of other towns and cities in Berkshire County.
However, you gentlemen are all either appointed or elected representatives of the citizens of Pittsfield. We know that each of you, regardless of your future plans for public office, is working diligently to fulfill your duties to the best of your abilities. That is why we are pointing out the peril to Pittsfield’s baseball future that further delay entails. That is why we are asking each of you to voice your public support for immediate consideration of our proposal, and to ask each of the other Park Commissioners and City Councilors to do the same.
We are not asking for careless action, but we ask that the process of evaluating our proposal and any alternatives proceed expeditiously. Mr. Nilan, we repeat our request that the July 23rd meeting of the Commission take place, and that it be held in a school auditorium, where a large number of citizens can attend and where TV and radio stations that have already expressed interest can broadcast the proceedings. We would be prepared to present our proposal in all reasonable detail and to defend it, and we would welcome the opportunity to share the stage with representatives of any competing proposals in a real give-and-take format. Whether the Commissioners choose to take formal action at that meeting is, of course, up to you, but at least you will be able to voice your questions and concerns to us and to the public, and we will be able to answer you publicly to the best of our abilities.
Sincerely,
Donald B. Elitzer
AUGUST 13, 2001
Proposal for Wahconah Park (Summary)
TO PROVIDE PROFESSIONAL BASEBALL PERMANENTLY TO A RESTORED WAHCONAH PARK AT NO COST TO THE CITY
PRINCIPALS: Jim Bouton, 62, is a former professional baseball player and businessman who lives in North Egremont; Chip Elitzer, 53, is an investment banker who lives in Great Barrington; Eric Margenau, 60, is a professional sports entrepreneur who owns a home in Stockbridge.
MARKETING PLAN: Double 2,000 average attendance by promoting three under appreciated or previously unavailable assets: a 100% locally owned team with 51% offered to businesses and fans, a historic ballpark marketed to a national audience, the high quality (AA) of independent league baseball.
Implement “share of customer” strategy, capturing tourist dollars now spent elsewhere in the Berkshires, via brochures and cross-promotions with local cultural institutions. Create a national identity for Wahconah Park with its own logo and historic site map identification, attracting fans who tour the country visiting legendary ballparks. Enhance fan experience with a “Taste of the Berkshires” food court, “Shops of the Berkshires” merchandise booths, a Walkway Museum & Hall of Fame, and area-specific promotions.
FACILITIES PLAN: Spend $250,000 on capital improvements by opening day 2002, and at least $25,000 each subsequent year. Immediate improvements will include new concession stands, crushed stone resurfacing of parking lot, fourteen “not so luxury boxes” on the grandstand roof, and painting the stadium. Future upgrades will include restrooms, locker rooms and exercise facilities.
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nbsp; LICENSE AGREEMENT: To allow sufficient time for return on investment, we require a long term lease or license which can be revoked for failure to perform any one of the following: provide a professional baseball team, invest at least $250,000 in initial repairs and capital improvements, invest at least $25,000 for upgrades and repairs in each subsequent year, assume responsibility for all necessary maintenance and repairs ordinarily paid by the city ($500,000 over the past 5 years), allow reasonable use of Wahconah for civic, educational, sports and entertainment consistent with its primary function of hosting professional baseball.
OWNERSHIP STRUCTURE: Initially to be owned 100% by Jim Bouton, Chip Elitzer and Eric Margenau. By November 2001, 51% ownership will be offered to local businesses and fans.
FINANCIAL PLAN: Revenue will come from ticket sales, concession profits, advertising, and corporate suites (“not so luxury boxes”). Based on 43 home games at $10 per fan revenue (including concessions), average per game attendance of 2,000, 3,000, and 4,000 would yield pre-tax income of: $58,000, $488,000, and $918,000, before cash outlays for capital improvements.
LEAGUE NEGOTIATIONS: Atlantic League president Frank Boulton has agreed to approve play in his league for 2002 once a lease is obtained for Wahconah Park. An option price has also been agreed upon for play beyond 2002 if a new “short season” division is created. An option price for a full season membership has not yet been agreed upon.
In addition, the representative of a Northern League franchise has told us that the owner is willing to sell at our offer price. However, since Northern League Commissioner Miles Wolff has given Mayor Doyle a letter of support for Jonathan Fleisig’s bid for a Pittsfield team and a new stadium, we have told this potential seller and Mr. Wolff that a precondition of our purchase would be a letter from Mr. Wolff stating that our group is acceptable to the league and that Wahconah Park is a suitable permanent home for our team.
By granting our local ownership group a long term lease on Wahconah Park, Pittsfield will have changed the traditional balance of power between cities and team owners in the city’s favor.
NEXT STEPS: In order to successfully conclude our negotiations for a franchise in one of the two leagues, we must have a long-term lease or license agreement for Wahconah Park. Our preferred home is the Atlantic League, but if we are unable to negotiate an acceptable option price for a full season membership, then we will purchase one of several Northern League franchises that are potentially available.
With the unconditional support of the citizens of Pittsfield and the officials—both elected and appointed—who act on their behalf, we will succeed in our effort to provide professional baseball permanently to a restored Wahconah Park at no cost to the taxpayers.
Note: A complete version of this proposal can be found at www.foulball.com
AUGUST 13, 2004
Bid Protest Decision (Excerpt) from the Office of Massachusetts Attorney General Thomas F. Reilly
…since the Club’s indemnification responsibilities under the license do not begin until May 2005.
The Club contends that the Wahconah Park license is not subject to the competitive bidding statutes, based on its analysis of the factors set forth by this office in Foundation for Fair Contracting of Massachusetts v. Enlace de Familias de Holyoke/Holyoke Community Charter School, Attorney General Bid Protest Decision at p. 9 (July 15, 2002). The Enlace decision addressed a project in which the public agency was the lessee, not the lessor. Here, there is not the commonality of identity between the public agency and the developer as in Enlace, where we found an agency relationship existed. Nevertheless, the City will exercise significant control over the Park, construction will be performed in lieu of license fees, and it will take place on publicly owned land, possibly reverting to the public agency for public use in less than two years. These are all relevant factors under the Enlace “test.” Enlace at p. 13 (citing Affiliated Const. Trades Foundation v. University of West Virginia Bd. of Trustees. 210 W. Va. 456, 472 (2001) and the factor test therein).
The City suggests that the license contains what is effectively a 15 year initial term, since the Club must make substantial improvements which it cannot possibly recoup during the initial 18 month term. However, this is not what the language of the license necessarily requires. The license does not contain a 15 year term. We must analyze this matter accordingly.
A term of 18 months suggests that a license may have been structured to circumvent the bidding laws, since many similar construction projects take this long to complete. Under these circumstances, if we were to find that the construction contemplated by the license was not subject to either c. 30 or c. 149, some could interpret this as an invitation to circumvent the competitive bidding statutes where the legislature intended them to apply.5 By the terms of the license, certain construction is required. Cf. G.M. Builders, supra. Moreover, the construction is the “responsibility” of the City since the City is not indemnified if a construction accident occurs before May 15, 2005. Id.
That the license gives the City relatively unrestricted authority to approve or reject additions to the concession areas also suggests public control of the project. The City and the Club contend that this provision is for the enforcement of health regulations, but there are provisions for adherence to these regulations elsewhere in the license.
In its current form, the license raises serious concerns about the applicability of the competitive bidding statutes. However, this is a close case. During the hearing of this matter, it became apparent that the City did not consider the reasoning of the G.M. Builders case in entering the license agreement. Further, while both the City and the Club view the license as having a 15 year term, the language of the license provides otherwise. Finally, based on testimony provided at the hearing, the parties to the license did not intend for the City to have the right to withhold approval for concession stand alterations except where there are violations of health, safety and welfare regulations.
Accordingly, we remand this matter to the City for further action in accordance with the foregoing opinion.
5See Office of the Inspector General v. Massachusetts Water Resources Authority. Department of Labor and Industries Bid Protest Decision at pp. 36-38 (June 29, 1989), for an example of a lease that set forth what was “virtually indistinguishable” from a “turnkey” construction contract.
SEPTEMBER 10, 2004
Report and Request to the Mayor,
City Councilors, and Parks Commissioners
Ladies and Gentlemen:
On March 8 of this year, less than two months after a gracious invitation signed by the Mayor, the President of the City Council, and the Chairman of the Parks Commission, we signed a license agreement for the use of Wahconah Park.
Our goal then was the same as it is now: to bring professional baseball back to Wahconah Park and to keep it there permanently. We have had some gratifying successes and some unexpected challenges. At the time that we signed the license agreement, we stated that we couldn’t guarantee success, but that we could promise that we would work tirelessly to produce the best result possible, and that with the strong support of Pittsfield, we thought we could overcome any obstacles.
We have encountered some obstacles, and we’re asking you to help us overcome them. I will be highly specific about the nature of that help. But first, I would like to enumerate what we have achieved in the six months since the license agreement was signed:
1. Jim Bouton took a little-noticed discovery of an 18th century bylaw and helped turn it into an international media event that dubbed Pittsfield as “Baseball’s Garden of Eden.”
2. We brought back the Hillies after 74 years and staged two well-received home games at Wahconah Park.
3. We brought ESPN Classic to Wahconah Park on July 3 for what amounted to a highly complimentary national “infomercial” for Pittsfield and the Hillies that lasted over four hours, and that has been rebroadcast multiple times.
4. We have cleared virtually all re
gulatory hurdles necessary to begin construction at Wahconah Park, including environmental.
5. We have completed the architectural and engineering work necessary to get “ballpark” numbers from potential contractors, and we have gotten those numbers.
6. We have made cosmetic but important initial changes to Wahconah Park, including paint, signage, scoreboards, demolition of dilapidated concession shacks and wire link fencing, creation of an expanded courtyard within a temporary construction fence, a new gated entrance to the overflow parking meadow, and an efficient new parking layout that has proven its worth at both Hillies games this summer. And all of the work has been done by local firms and individuals.
7. We have filed a preliminary prospectus with the SEC for a public offering of Wahconah Park, Inc. and have received commitments for over $1.2 million to date, including $250,000 from Jim Bouton and me. (Our commitment has already been mostly funded and spent on the architectural, engineering, permitting, and other pre-construction work described above.)
8. We have engaged both independent leagues in discussions regarding Pittsfield’s place in a league schedule for 2005, and we should know where we stand around the end of this month.
9. We paid $2,000 to booster clubs at PHS, Taconic, and St. Joe’s for volunteer labor for the July 3 game and hope to establish an ongoing relationship with them and other Berkshire County volunteer organizations to supplement their budgets for most of the 60 home games (45 professional, 15 Hillies) that are being planned for 2005.
10. We paid over $1,600 directly to our local game day staff for the Sept. 4 game, because the booster clubs were fully occupied with a large soccer tournament that weekend.
11. We are contributing over $1,500 to the Dave Southard family to fulfill our pledge of $1.00 for every ticket sold to the Sept. 4 game.
12. Jim Bouton and I (and our families) have worked diligently on behalf of Wahconah Park without pay all this year, and will do so again all next year.