Hardball’s failure to live up to its side of the Harrison Square agreement has caused the citizens of Fort Wayne a grave $45 million problem. Yet the main thrust of Christopher Guerin’s guest editorial (Aug. 31) opposing my call for enforcement of the agreement is a speculative and insulting characterization of my motives that does nothing to address our difficulties.

Ad hominem attacks are the lowest form of argument, for good reason forbidden at the council table – as they have been in parliamentary law for more than 400 years.

Let’s focus instead on the facts and merits of the issue.

Contrary to Mr. Guerin’s assertions, I am not seeking revenge; I am seeking fairness for the citizens of Fort Wayne.

By the time Parkview Field is paid off in 25 years, we will have more than $45 million in our beautiful ballpark – from which the owners of the TinCaps, by contract, take all profits. The justification for this one-sided arrangement, as its proponents repeatedly argued, was that the city would be guaranteed, finally, extensive downtown development – approximately 60 condominiums and 30,000 square feet of retail space, with more to come in subsequent phases.

Unfortunately, that guarantee now appears to be qualified by the builder’s insistence on favorable financing, secured tenants, etc. Such qualifications are not in the contract.

In fact, when some of us on council asked for evidence that the developer had the financial soundness to guarantee performance, we were brushed aside with assurances that the Hardball-Barry Real Estate Companies Inc. principals were extremely wealthy and funding for the project could not possibly be a problem. (Hardball and Barry are effectively one and the same: Jason Freier was CEO of both entities at the time the contract was signed – The Journal Gazette should do its homework.)

Now the condominiums and retail spaces remain unbuilt, with an empty lot as a constant reminder. Some fear this will make downtown living in any location appear inviable, a dangerous perception.

In the original agreement, the city and Hardball, knowing that such an outcome would be unfair and harmful to the city, stipulated that if the condominiums were not completed on or before June 1, 2009, by Barry, the city would be paid $5,000 a day in “liquidated damages.”

Those responsible for enforcing the contract should read those words with respect, and set aside their own language of penalties and punishment, which exists nowhere in the agreement. Because the contracting parties recognized the critical importance to the city of the condominiums-with-retail development, they incorporated into the agreement, by mutual consent, liquidated damages – an estimated dollar amount that would cover damages the city would suffer should that development fail to materialize.

Hardball agreed then, and probably agrees now, that the damage caused by its non-performance is worth at least $5,000 a day. We should not even need to ask for the money. Barry Real Estate Companies-Hardball knew its obligations under the contract and could see the unfairness caused by its failure, and should have offered to make the payments.

The assertions that Hardball is making a good-faith effort to build is no defense. The contract is explicit that to retain its privileges to the stadium, Hardball must both maintain a good-faith effort to build and compensate the city for losses due to the delay. And it requires a labored and implausible interpretation of the contract to argue that there is a cap on our rights to continuing damages, certainly an interpretation no attorney representing the city’s interests should be making.

I’ll close by calling attention to one troubling proposed change in the contract, mentioned late in Mr. Guerin’s piece, which could, if taken too far, undermine the project’s primary purpose. The contract calls for approximately 60 condominiums; yet he now tells us that one whole floor of the new building might be office space. More office space downtown we don’t need. A critical mass of new downtown living units we do, if we are to break the chicken-or-egg problem of providing enough living downtown to attract the needed downtown services (drugstores, grocers, etc.). Any severe cutback in condominiums could undermine the very reason for which Mayor Graham Richard and his allies were ready to spend and borrow so heavily for this project.

Mr. Guerin asks me to join the winning team. The TinCaps are a winning team, but right now downtown Fort Wayne is not. To become a winner, we must honor our existing contracts and redouble our efforts elsewhere. A winning downtown Fort Wayne is the team we all want to be on.