Вы находитесь на странице: 1из 38

U.S.

O
;.lISTRIC
UNITED STATES DISTRICT COURT Inn Sf? -2 M'i 8: 4&
DISTRICT OF VERMONT
CITIBANK, N.A., as assignee of
CITICAPITAL MUNICIPAL FINANCE
Plaintiff

-v-
CITY OF BURLINGTON and MCNEIL, LEDDY &
SHEAHAN, P.C.
Defendants.
COMPLAINT
Plaintiff Citibank, N.A., as assignee of CitiCapital Municipal Finance (hereinafter
"Citibank"), by and through its attorneys, Nixon Peabody LLP, as and for its complaint against
Defendants City of Burlington, Vermont ("Burlington") and McNeil, Leddy & Sheahan, P.e.,
alleges as follows:
NATURE OF THE ACTION
This is an action arising out of a municipal finance agreement (the "Agreement")
between Burlington and Citibank, which Agreement provided for Burlington's lease-to-purchase
of certain telecommunications equipment (the "Equipment") and for the construction and operation
of a city-wide fiber optic network infrastructure used to deliver voice, data and cable television
services (such network infrastructure as now fully constructed and operating, hereinafter referred
to as "Burlington Telecom" or "BT'). Having secured from Citibank monies totaling more than
$33,500,000.00 for the construction and ongoing operation ofBT, Burlington now claims to lack
sufficient funds to make the rental payments due under the Agreement, and therefore, purports to
13356756.1
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 1 of 38
have elected not to appropriate funds necessary to support its payment obligations.
As the result of its claimed failure to appropriate, Burlington claims to have terminated
the Agreement effective July 1,2010. Notwithstanding its purported termination, Burlington
refuses to de-install and return the leased Equipment, as expressly required by the Agreement.
Moreover, Burlington continues to use the leased Equipment in furtherance of its
telecommunications operation, collecting and retaining all revenue derived therefrom. Citibank
has not received a payment directly from Burlington since a payment of $386,673.75.00 on or
about November 17,2009. Burlington failed to make two successive payments due on February
17,2010 and May 17,2010, respectively, each in the amount of$386,673.75.00, requiring
Citibank to make demand on an escrow Reserve Fund (as that term is defined infra) set up in
conjunction with the Agreement. Citibank drew down the balance of the escrow Reserve Fund of
$226,745.76.00 on or after June 28, 2010 and thereafter has received no payments whatsoever
from or on behalf of Burlington. As of August 17, 2011, Burlington will have failed to pay
$3,534,471.50 in payments due under the terms of the Agreement, and such obligations accrue
under the Agreement at the rate of $235,631.44 monthly.
Accordingly, Citibank seeks, inter alia, declaratory and injunctive relief, in the form of an
Order of this Court preliminarily enjoining Burlington from further using and depreciating
Citibank's property, directing Burlington to pay holdover rent for its continued retention and use of
the leased Equipment, requiring it to de-install and deliver the leased Equipment to Citibank in
accordance with the Agreement, or, alternatively, ordering replevin. Citibank also seeks an award
in the amount of its resultant damages. Alternatively, Citibank seeks rescission ofthe Agreement,
and other legal and equitable remedies.
13356756.1
2
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 2 of 38
PARTIES
I. Plaintiff Citibank, N.A., as assignee of Citibank Municipal Finance ("Citibank"),
is a nationally chartered bank, with its principal place of business located at 701 East 60
th
Street
North, Sioux Falls, South Dakota 57104.
2. Defendant City of Burlington ("Burlington") is a public body corporate and
politic, organized and existing under the laws of the State of Vermont and located in Chittenden
County. It operates an enterprise d/b/a Burlington Telecom ("BT"), a state-of-the-art
telecommunications network for Burlington's residents and businesses. Burlington operates BT as
a private corporation at 149 Church Street, Burlington, Vermont 05401.
3. Defendant McNeil, Leddy & Sheahan, P.C. ("McNeil, Leddy & Sheahan") is a
professional corporation, organized and existing under the laws of the State of Vermont, with its
principal place of business located at 271 South Union Street, Burlington, Vermont 05401.
McNeil, Leddy & Sheahan served as legal counsel to Burlington in its negotiation of the
Agreement.
JURISDICTION AND VENUE
4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332, because
diversity of citizenship exists between the parties, and the amount in controversy exceeds
$75,000.00 exclusive of interest and costs.
5. Venue for this action is proper in this district pursuant to 28 U.S.C. 1391(a)(I),
because the Defendants and the leased Equipment at issue are situated in Chittenden County,
Vermont.
13356756, I
3
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 3 of 38
FACTUAL BACKGROUND AND ALLEGATIONS
The Development of Burlington Telecom
6. In 1997, Burlington's citizens voted to approve the construction of a city-wide
telecommunications network which would come to be known as Burlington Telecom ("BT").
7. On March 7, 2000, Burlington's citizens approved a change to Burlington's
charter, which the Vermont legislature subsequently approved and enacted into law on May 29,
2000.
8. The law provides that: "[T]he public service board, in considering any application
for a certificate of public good, shall ensure that any and all losses from these businesses, and, in
the event these businesses are abandoned or curtailed, any and all costs associated with
investment in cable television, fiber optic, and telecommunications network and
telecommunications business-related facilities, are borne by the investors in such business, and in
no event are borne by Burlington's taxpayers, the state ofVermont, or are recovered in rates
from electric ratepayers." 24A V.S.A. 3-438(c)(l).
9. In 2003, Burlington registered the trade name Burlington Telecom.
10. In the Spring of2005, BT petitioned the State's Public Service Board ("PSB") for
a certificate ofpublic good ("CPG") to operate a cable television ("CATV") system in
Burlington.
11. In its decision granting BT the CPG, the PSB made the following findings based
on Burlington's and BT's representations.
12. "The City of Burlington, through the City department known as Burlington
Telecom ... , seeks a CPG to operate a CATV system throughout the City of Burlington." See
13356756.1
4
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 4 of 38
Exhibit A, Petition of City of Burlington d/b/a Burlington Telecom, Docket No. 7044, State of
Vennont, Public Service Board, at ~ 3 (Sept. 13, 2005).
13. "The City Charter was revised in 1996 to authorize the City to engage in regulated
cable or telecommunications lines of business, subject to the Board's granting certificates of
public good in accordance with law." Id at ~ 6.
14. "The overall Burlington telecommunications project has been split into three
major sections, or Phases ...." Id. at ~ 11.
15. "Phase I ... refers to a non-commercial network over which the City provides
telecommunications and data services to its municipal offices and schools." Id at ~ 11.
16. "Phase II ... refers to [Burlington Telecom's] offer of commercial
telecommunications and data services over the Phase I system to commercial and institutional
customers located within reach ofthe facilities constructed to provide Phase I services."
Id a t ~ 12.
17. "Phase III ... refers to the new facilities that [Burlington Telecom] intends to
construct in order to offer CATV services, as well as telecommunications and high-speed
internet services. In Phase III, [Burlington Telecom] will construct a fiber-to-the-premise open
access network that will pass every residence, business, and institution located within the City by
summer 2006. The system will have the capability to allow [Burlington Telecom] to offer
telephone service, high-speed internet access service, cable television service, and transport
services to other service providers on an open access basis." Id. at ~ 13.
18. "[Burlington Telecom] intends to offer basic service, as well as advanced services
including premium and pay-per-view." Id at ~ 22.
13356756.1
5
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 5 of 38
19. "It is reasonable to expect the Phase III project to be economically viable for
[Burlington Telecom]. Although [Burlington Telecom's] system will compete directly with the
existing Adelphia system for cable and internet access customers, [Burlington Telecom] will also
offer telecommunications services and wholesale open access transport." Id. at ~ 33.
20. "Phase III will be financed through a capital lease with Koch Financial."
Id. at ~ 35.
21. "The interest and principal payments under the Koch Financial lease will
comprise the most significant fixed cost ofthe Phase III project. [Burlington Telecom] projects
cash flow sufficient to make required lease rental payments for the duration of the requested
CATV franchise." Id. at ~ 36.
22. "The City has carefully developed and reviewed the business plan for [Burlington
Telecom], including review by two teams of outside experts, both of which confirmed the
soundness of the plan." Id. at ~ 37.
23. "The projections indicate the project will become cash positive by July 2006 and
is expected to generate a total of $22 million of positive cash flow in the first ten years of
operation." Id. at ~ 38.
24. "[Burlington Telecom's] projections are appropriately characterized as
conservative ...." Id. at ~ 39.
25. "Even recognizing that such projections are inherently subject to uncertainty and
change over time, [Burlington Telecom's] business plan is sufficiently conservative and indicates
a financial cushion sufficient to allow [Burlington Telecom] to weather variances in actual
results from those presently projected." Id. at ~ 12.
13356756.1
6
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 6 of 38
26. "During November 2004, the City entered into a Master Equipment Lease
Agreement in the amount of$12.6 million to support the construction of its proposed system in
one half of the City of Burlington ...." Id. at ~ 60.
27. "In the event of the failure of the City to make rental payments when due under
the [Lease Agreement], Koch Financial may take control of all assets that secure the repayment
of the $12.6 million amount fmanced." Id. at ~ 62.
28. "Among the assets which may be taken over by Koch Financial are those
currently used as a fiber backbone for service to municipal buildings and commercial buildings
adjacent to the fiber backbone (the Phase I and II facilities)." Id. at ~ 63.
29. "On May 24,2004, the City Counsel passed a resolution endorsing evaluation of
Phase III services, and authorized the lease financing for this phase on October 12, 2004." Id. at
~ 6 6 .
30. "The City has stated that it has the right under the Charter to fund the regulated
cable/telecommunications activities of its Telecommunications Project through non-property tax
revenue streams currently used to support general government services, including but not limited
to rooms and meals taxes, charges for services, and development impact fees." Id. at ~ 77.
31. "In the event the City defaults, the lease contemplates and provides for the
transfer of control of the project's assets from [Burlington Telecom] to Koch Financial, and
subsequently to another party, while at the same time allowing the City to generally control when
such events would occur." Id. at ~ 84.
32. Based in part on the above representations and findings, the PSB issued BT a
CPO.
13356756.1
7
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 7 of 38
-- ------ ---_.. _----------
33. In early 2006, BT began offering internet, phone and television services to
customers other than Burlington itself.
Investment by Koch Financial Corporation
34. On or about May 1,2002, a private financing company, Koch Financial
Corporation ("Koch") entered into an agreement with Burlington to finance the construction of
the initial phase of the BT network and to lease the Equipment back to Burlington (the "First
Koch Lease"). Pursuant to the First Koch Lease, Koch advanced to Burlington funds totaling
approximately $2,608,000.00.
35. On or about March 18,2005, Koch agreed to advance to Burlington an additional
$20,000,000.00 in order to fund Burlington's continued build-out ofBT and to lease the
additional Equipment back to Burlington (the "Second Koch Lease") (together with the First
Koch Lease, the "Koch Leases").
Negotiation of the Investment by Citibank
36. In early 2007, Burlington and Citibank entered into negotiations regarding
Citibank refinancing the Koch Leases, and in conjunction therewith, providing Burlington with
an additional $11,500,000.00 in funds necessary to the realization of Burlington's plans to
complete BT Phase III.
37. As noted in paragraph 7 supra, pursuant to 24A V.S.A. 3-438(c)(1), taxpayer
revenues may not be used to cover BT operating losses. Consequently, Citibank specifically
sought as a condition to the Agreement, and Burlington agreed to provide, express assurances
that Burlington had sufficient revenues available from non-taxpayer sources to fund the required
payments to Citibank.
8
13356756.1
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 8 of 38
38. More specifically, in a letter dated August 17,2007, McNeil, Leddy & Sheahan,
legal counsel to Burlington, provided the following legal opinion to Burlington and Citibank (by
and through its legal counsel) (the "Opinion Letter"):
There is no prohibition of utilizing general fund revenues of the
City for telecommunications activities. However, there is a
specification that losses from telecommunications are not to be
borne by the City's taxpayers, the State of Vermont or recovered
in rates from electric ratepayers. The same restriction applies to
costs incurred in the event of any abandonment or curtailment of
the telecommunications systems by the City. We are advised that
approximately 40% of general fund revenues are derived from other
sources than through taxation of the City's taxpayers.
A true and correct copy of the Opinion Letter is attached herewith as Exhibit B.
39. In the Opinion Letter and otherwise, Burlington expressly warranted to Citibank
that at least 40 percent of Burlington's revenues were derived from sources other than taxpayer
funds and would be available to fund payments to Citibank, and further, that Burlington had the
financial resources and ability to make all payments to Citibank for the full term of the
Agreement.
The Citibank A2reement
40. On or about August 9, 2007, Burlington entered into a Master State and
Municipal Lease/Purchase Agreement with Municipal Leasing Consultants (the Agreement").
A true and correct copy of the Agreement is attached herewith as Exhibit C.
41. On or about August 15,2007, Municipal Leasing Consultants assigned the
entirety of its duties, obligations, right, title and interest in, to and under the Agreement, the
Equipment defined in the Agreement, and the payments due from Burlington under the
13356756,1
9
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 9 of 38
Agreement to Citibank:. A true and correct copy of the Notice of Assignment is attached
herewith as Exhibit D.
42. The Agreement includes two (2) schedules: Schedule No. 001 and Schedule No.
002. Schedule No. 001 contemplates the financing of the new BT Phase III equipment
(specificaUy, "City-Wide Fiber Optic Network providing voice, Data and cable TV to Burlington
offices, Businesses and residents of Burlington," located "[t]hroughout City of Burlington."), in
the amount of$11,531,514.03. Schedule No. 002 contemplates the pay-off of the Koch Leases,
in the amount of $21,968,485.97. Schedule No. 002 also provides for the lease of certain
equipment, specifically "City-Wide Fiber Optic Network providing voice, Data and cable TV to
Burlington offices, Businesses and residents of Burlington; All other related equipment and [t]he
purchasing of Vehicles" located "[t]hroughout City of Burlington."
43. The total financing commitment contemplated by the Agreement was
$33,500,000.00.
44. The Agreement provides for twenty (20) successive one-year terms, coincident
with Burlington'S fiscal year, which ends on June 30th. The maximum lease term was twenty
(20) years.
45. Section 5 ofthe Agreement obligates Burlington to make rental payments to
Citibank: as set forth on each Rental Payment Schedule. See Exhibit C at Master Lease, 4.
46. Section 6 of the Agreement states, in relevant part, that Burlington may only enter
into either Schedules No. 002 or 001 if Burlington (1) intends "to continue such Schedule
through its Maximum Lease Term under such Schedule and all other Schedules then in effect;"
13356756.1
10
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 10 of 38
and (2) reasonably believes "that funds will be obtainable in an amount sufficient to make all
Rental Payments during the Maximum Lease Term." See Exhibit C at Master Lease, 6.
47. Section 6 further obligates "the [City's] responsible financial officer ... [to] do
all things lawfully within his power to obtain funds from which the Rental Payments may be
made, including making provisions for such Rental Payments, to the extent necessary, in each
proposed budget submitted for approval in accordance with applicable procedures of Lessee and
to exhaust all available reviews and appeals in the event such portion of the budget is not
approved."
48. Pursuant to Section 7 of the Agreement, Burlington is obligated to make such
rental payments "as may lawfully be made from funds budgeted and appropriated for that
purpose during the [City's] then current fiscal year." See Exhibit C at Master Lease, 7.
49. Section 7 further states that if Burlington fails to appropriate the necessary funds
in its annual budget for payments to be made for the following fiscal year, the "Lease shall be
deemed terminated at the end ofthe then current Initial Term or Renewal Term."
50. If the Agreement is deemed terminated pursuant to Section 7, the "Lessee agrees,
at Lessee's cost and expense, to peaceably deliver the Equipment then subject to that Lease to
Lessor at the location or Locations specified by Lessor." Id.; see also Exhibit C at Master Lease,
21(b) (stating that upon default, the "Lessor may ... require Lessee at Lessee's expense to
promptly return any or all of the Equipment to the possession of Lessor at such place within the
United States as Lessor shall specify, ....").
51. Section 11 of the Agreement states that the "Lessee shall immediately surrender
possession ofth[e] Equipment to Lessor, upon ... (b) the occurrence of an Event of Default with
13356756.1
11
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 11 of 38
respect to that Lease. It is the intent of the parties hereto that any transfer of title to the Lessor
pursuant to this Section shall occur automatically without the necessity of any bill of sale,
certificate of title or instrument of conveyance." See Exhibit C at Master Lease, 11.
52. Section 19 ofthe Agreement requires Burlington to indemnifY, protect and defend
and hold Citibank harmless from and against any and all liabilities, obligations, losses, claims
and damages whatsoever regardless of cause thereof, and all expenses in connection therewith
that, inter alia, arise out of entering into the Agreement, Citibank's ownership of any item of
Equipment, use or operation of the Equipment, and breach of any covenant of the Agreement or
any material misrepresentation contained therein. Section 19 of the Agreement also provides
that the indemnification shall "continue in full force and effect" notwithstanding the termination
of the Agreement for any reason. See Exhibit C at Master Lease, 19.
53. Section 20 ofthe Agreement lists six (6) possible events of default. In relevant
part, these events include: (1) failure by Burlington to observe and perform any covenant,
condition or agreement on its part to be observed or performed under the Agreement for a period
ofthirty (30) days after Citibank provides written notice specifying Burlington's failure and
requesting that its failure be remedied; and (2) any statement or promise by Burlington in or
pursuant to the Agreement or its execution, delivery or performance that was false on the day it
was made. See Exhibit C at Master Lease, 20.
54. Section 21 of the Agreement sets forth remedies in the event of default and states,
in relevant part, that Citibank has the right to '''require Lessee at Lessee's expense to promptly
return any or all ofthe Equipment to the possession of Lessor at such place within the United
States as Lessor shall specifY." See Exhibit C at Master Lease, 21.
[3356756.1
12
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 12 of 38
The Escrow Agreement
55. On or about August 9,2007, in conjunction with the Agreement, Burlington
entered into an Escrow Trust Agreement with Citibank (the "Escrow Agreement"). A true and
correct copy of the Escrow Agreement is attached herewith as Exhibit E.
56. The Escrow Agreement details two separate funds: (1) the City of Burlington
Acquisition Fund, valued at $10,531,514.03 (the "Acquisition Fund"); and (2) the City of
Burlington Reserve Fund, valued at $1,000,000.00 (the "Reserve Fund").
57. Pursuant to the Escrow Agreement, the Acquisition Fund and the Reserve Fund
were funded by Citibank with monies advanced to Burlington under Schedule No. 001.
58. The Acquisition Fund was established to cover the costs of the BT Phase III build
out. Upon information and belief, the Acquisition Fund has since been depleted by costs
associated with the build out of BT Phase III.
59. The Reserve Fund was established and intended as partial assurance against
default by Burlington in the payment of rental payments due under the Agreement.
Burlington's Breaches of the Agreement
Payment Defaults
60. Pursuant to the Agreement, Burlington was required to make two (2) payments to
Citibank on February 17,2010: (1) a payment of$133,102.50, pursuant to Schedule No. 001;
and (2) a payment of$253,571.25, pursuant to Schedule No. 002. See Exhibit C, Attachment 1
to Schedule No. 001 at p. 1, and Attachment 1 to Schedule No. 002 at p. 1.
61. Burlington failed to make the payments due on February 17,2010.
13356756.1
13
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 13 of 38
62. On March 15, 2010, pursuant to Section 8(a) of the Escrow Agreement, Citibank
asked the escrow agent, UMB Bank, to distribute $386,673.75 to Citibank from the Reserve
Fund to cure Burlington's payment default.
63. UMB Bank complied with the request and distributed the funds from the Reserve
Fund to Citibank.
64. Pursuant to the Agreement, Burlington was required to make two (2) payments to
Citibank on May 17,2010: (1) a payment of $133,102.50, pursuant to Schedule No. 001; and (2)
a payment of$253,571.25, pursuant to Schedule No. 002. See id.
65. Burlington failed to make the payments due on May 17,2010.
66. On June 4, 2010, pursuant to Section 8(a) of the Escrow Agreement, Citibank
again asked UMB Bank to distribute $386,673.75 to Citibank from the Reserve Fund to cure
Burlington's payment default.
67. UMB Bank complied with the request and distributed the funds from the Reserve
Fund to Citibank.
68. Despite Burlington's failure to make any rental payments to Citibank in 2010,
Burlington's payment obligations under the Agreement were satisfied through May 17, 2010 by
virtue ofCitibank's draw on the Reserve Fund.
69. Since the aforementioned Reserve Fund payments, Citibank has not received any
other scheduled rental payments from Burlington due under the Agreement.
13356756.1
14
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 14 of 38
Failure to Appropriate
70. In the spring of 20 1 0, Burlington failed to appropriate funds in its annual budget
necessary to pay Citibank the Rental Payments scheduled for the fiscal year beginning July 1,
2010.
71. Burlington subsequently informed Citibank of its alleged inability to make further
rental payments under the Agreement because, inter alia, it claimed to have no legally available
funds. Burlington claimed, for the first time, that all of Burlington's funds, regardless of their
source, were deemed to be "taxpayer revenues."
72. Burlington further indicated to Citibank that the only funds legally available for
rental payments under the Agreement were BT revenues, which Burlington contended were
insufficient. Burlington's contention is particularly curious, because Burlington itself has been
among BT's most significant customers. Therefore, Burlington arguably had the ability and the
obligation under the Agreement to charge itself sufficient rates to make the payments required
under the Agreement, but it failed to do so.
73. For these reasons and others, Burlington's responsible financial officer has failed
to "do all things lawfully within his power" to obtain rental payments funds.
Burlington's Purported Termination of the Agreement
74. By agreement dated June 28,2010, Citibank agreed to forbear from taking any
action against Burlington through September 30, 2010, subsequently extended through October
29,2010 (the "Forbearance Period"), to allow Burlington additional time to perform under the
Agreement and appropriate the requisite funds.
13356756,1
15
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 15 of 38
75. The parties further agreed that Burlington was not obligated to make rental
payments during the Forbearance Period, except to the extent of the $226,745.76 balance in the
Reserve Funds, which Citibank was entitled to draw upon. Citibank requested and UMB Bank
distributed the remaining funds, thereby exhausting the Reserve Fund.
76. Upon expiration of the Forbearance Period, Burlington failed to appropriate
funds necessary to make payments pursuant to the Agreement.
77. By letter dated October 21,2010, Citibank demanded de-installation and the
return of the Equipment, pursuant to Sections 7 and 11 of the Agreement. A true and correct
copy of this letter is attached herewith as Exhibit F.
78. Citibank informed Burlington that, in light of Burlington's purported termination
of the Agreement by non-appropriation as of June 30, 2010, if Burlington continued to use and
possess the Equipment, Burlington would be obligated to pay holdover rent to Citibank:.
79. Citibank further informed Burlington that Citibank: reserved its right to seek
recission of the Agreement.
80. Burlington has refused to comply with its holdover rent obligations, and it has
refused to rescind the Agreement.
81. Burlington has also refused to return the Equipment, and in fact, it continues to
use the Equipment today. Instead, of de-installing and returning the Equipment as required by
the Agreement, Burlington has suggested that it be allowed to retain the Equipment so it may
keep BT intact for its continuing use and benefit and tender substitute equipment to Citibank.
Burlington admits substitute equipment is not permitted by the Agreement, would unjustly and
unlawfully enrich Burlington at Citibank's expense, and would have a value that is a fraction of
13356756.1
16
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 16 of 38
both the total amount owing to Citibank and Burlington's cost of complying with its obligation
to de-install and return the Equipment to Citibank.
82. In a letter dated November 23,2011, McNeil, Leddy & Sheahan, acting as legal
counsel to Burlington, wrote to Susan M. Hudson, Clerk of the PSB Board, stating, in pertinent
part, as follows:
The City agrees with Citibank that the failure to appropriate funds
for FY 2011 scheduled lease payments has resulted in termination of
the Lease Agreement, and it is now the City'S obligation to return to
Citibank the equipment financed there under [sic] as soon as
practical.
A true and correct copy ofthis letter is attached herewith as Exhibit G.
83. Burlington's suggestion that it be allowed to tender substitute equipment would
materially prejudice Citibank's legal and economic interests - and indeed those of the municipal
finance market generally - and is in direct contravention ofthe Agreement, as legal counsel to
Burlington has expressly acknowledged.
COUNT I
(City of Burlington)
Declaratory Judgment - Deinstallation and Return of Equipment
84. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
85. Burlington's failure to appropriate the necessary funds in its annual budget for
payments to be made for the following fiscal year was an Event of Default under Section 20 of
the Agreement and operated to terminate the Agreement under Section 7 of the Agreement as of
June 30, 2010. Additionally, Burlington's failure to perform its covenants under the Agreement,
and Burlington's misrepresentations concerning the Agreement, constitute additional Events of
Default, pursuant to Section 20 of the Agreement.
13356756.1
17
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 17 of 38
86. When Burlington defaulted, title to all of the Equipment under the Agreement
automatically transferred to Citibank. See Exhibit C at Master Lease, 11.
87. The Agreement defines Equipment as the "City-wide Fiber Optic Network
providing voice, Data, and cable TV to Burlington offices, Businesses and residents of
Burlington, All other related equipment and The purchasing of vehicles." See Exhibit C at
Master Lease, 1, Schedules 001 and 002.
88. If the Agreement is terminated pursuant to Section 7, Burlington is
unambiguously obligated to de-install and deliver the Equipment to a location specified by
Citibank, anywhere in the United States, at Burlington's cost and expense.
89. Moreover, in the Event of Default, which includes failing to appropriate money to
make a lease payment, Citibank may (and indeed has) demanded that Burlington de-install the
Equipment at its own cost and return it to Citibank. See Exhibit C at Master Lease, 21(b).
90. Counsel for Burlington admitted that Burlington has defaulted under the
Agreement and is required to return the Equipment.
91. Nonetheless, Burlington has refused to return the Equipment.
92. Burlington has also refused to return Citibank's vehicles in accordance with the
Vehicle Rider of the Agreement. See Exhibit C at Master Lease, Vehicle Rider.
93. Instead, BT continues to use Citibank's Equipment and vehicles unlawfully and
without its permission and continues to depreciate the value ofCitibank's assets in order to
generate revenue for itself.
13356756.1
18
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 18 of 38
94. Burlington's actions have caused Citibank to sustain, and will continue to cause
Citibank to sustain, damages, including further depreciation of the value of its assets and lost
rental revenues.
95. Citibank is therefore entitled to specific performance of the Agreement.
96. An actual controversy exists between the parties, and Citibank is entitled to a
declaratory judgment in the form of an Order of this Court directing Burlington to de-install and
deliver the Equipment to a location specified by Citibank, anywhere in the United States, at
Burlington's cost and expense.
COUNT II
(City of Burlington)
Declaratory Judgment - Replevin
97. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
98. Burlington defaulted under the Agreement on June 30, 2010.
99. When this happened, title to the Equipment and vehicles subject to the agreement
automatically transferred to Citibank.
100. Citibank now owns the Equipment and vehicles.
101. Citibank has made demand for the return of its Equipment and vehicles.
102. As stated earlier, Burlington's counsel admitted Burlington's obligation to de-
install and return the Equipment and vehicles.
103. Nonetheless, Burlington has refused to de-install and return the Equipment and
vehicles.
104. Burlington's actions have caused Citibank to sustain, and will continue to cause
Citibank to sustain, damages, including further depreciation of its assets and lost rental revenue.
13356756.1
19
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 19 of 38
105. These injuries are irreparable.
106. Citibank has no adequate remedy at law.
107. Citibank is therefore entitled to judgment determining its lawful right to
possession of the Equipment and vehicles and an Order of this Court requiring immediate de
installation and delivery ofthe same.
COUNT III
(City of Burlington)
Breach of the Agreement
108. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
109. The Agreement constitutes a valid, binding contract.
110. Citibank has fully performed all of its obligations under the Agreement, including
paying all of the costs to install the BT network.
111. Burlington's lease payments were bargained for and intended by the parties, in
part, to cover these expenses.
112. Following Burlington's default, Citibank demanded de-installation and return of
its Equipment and vehicles in accordance with the Agreement's terms.
113. Burlington's counsel admitted that Burlington had this obligation under the
Agreement.
114. Nonetheless, Burlington has refused to de-install and return Citibank's Equipment
and vehicles in breach of its unambiguous contractual obligation to do so.
115. Burlington has also breached its covenants, representations and obligations under
the Agreement, including, without limitation, its covenant that it would not enter into the
13356756.1
20
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 20 of 38
Agreement unless it reasonably believed that "funds will be obtainable in an amount sufficient to
make all Rental Payments under the Maximum Lease Term" of twenty (20) years.
116. To the extent Burlington now claims limited availability of non-taxpayer revenues
to make the rental payments required under the Agreement, it would have necessarily had such
knowledge when it entered into the Agreement and therefore could not "reasonably believe" that
such funds would be obtainable.
117. Moreover, Burlington breached its representation that "[t]he responsible financial
officer of Lessee shall do all things lawfully within his power to obtain funds from which the
Rental Payments shall be made, including ... to exhaust all available reviews and appeals in the
event such portion of the budget is not approved."
118. As a direct and proximate result of the above breaches, Citibank has sustained
and/or will continue to sustain damages in excess of $33,500,000.00, plus costs, interest, and
attorney's fees.
119. Additionally, because Burlington's intentional breach of the Agreement amounts
to a reckless or wanton disregard of Citibank's clear contractual rights, Citibank is entitled to an
award of punitive damages. See Monahan v. GMAC Mort. Corp., 179 Vt. 167 (2005) ("To
support the award of punitive damages, plaintiffs needed to show that GMAC's breach of
contract, or the covenant of good faith implied in the contract, demonstrated actual malice.").
COUNT IV
(City of BurlinJrton)
Breach of Implied Covenant of Good Faith and Fair Dealing
120. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
13356756,1
21
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 21 of 38
121. Burlington d/b/a BT has refused, despite the plain grant of rights to Citibank by
the terms of the Agreement and its express covenants and the covenants implied therein by law,
to return Citibank's Equipment and vehicles, and as a direct and proximate result thereof,
Citibank has sustained and will continue to sustain damages in excess of $33,500,000.00, plus
costs, expenses, and attorney's fees.
122. Burlington d/b/a BT has therefore breached the covenant of good faith and fair
dealing implied in the Agreement.
123. Moreover, because Burlington's intentional breach of the implied covenant of
good faith and fair dealing amounts to a reckless or wanton disregard ofCitibank's clear
cOI?-tractual rights, Citibank is entitled to an award of punitive damages. See Monahan, 179 Vt.
167.
COUNT V
(City of Burlington)
Unjust Enrichment
124. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
125. Citibank has conferred a benefit in excess of$33,500,000.00 on Burlington.
126. This benefit includes the installation of, and materials used to build, a city-wide
fiber optic broadband network, other Equipment, and vehicles.
127. It would be unconscionable for Burlington to retain such a benefit without
compensating Citibank.
128. Based on the terms of the Agreement, Burlington knew or should have known that
Citibank did not intend to confer such a benefit on Burlington without receiving just
compensation in return.
13356756.1
22
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 22 of 38
129. Burlington's retention and use of the Burlington-wide fiber optic broadband
network, other Equipment, and vehicles since June 30,2010 constitutes a substantial and
continuing benefit to Burlington.
130. Burlington would be inequitably and unjustly enriched to Citibank's detriment if
allowed to retain the benefit Citibank has provided without due compensation.
131. Citibank is therefore entitled to an award of compensatory damages in an amount
in excess of $33,500,000.00, in addition to all necessary costs, expenses, and attorney's fees.
COUNT VI
(City of Burlington)
Conversion
132. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
133. Upon Burlington's default, title to the Equipment and vehicles automatically
transferred to Citibank.
134. Burlington has refused to return Citibank's Equipment and vehicles despite
Citibank's demand that it do so.
135. Additionally, Burlington d/b/a BT continues to use Citibank's Equipment and
vehicles to generate revenues for itself.
136. Burlington d/b/a BT's actions amount to a conversion ofPlaintifPs property. See
Economou v. Carpenter, 124 Vt. 451, 453-54 (1965) ("[A] conversion consists either in the
appropriation of the property to the party's own use and beneficial enjoyment, or in its
destruction, or in exercising dominion over it [to the] exclusion or defiance ofthe owner's right,
or in withholding possession from the owner under a claim oftitle inconsistent with his title.").
13356756,1
23
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 23 of 38
137. As a direct and proximate result of Burlington d/b/a BT's conversion of
Citibank's property, Citibank has sustained damages in excess of $33,500,000.00, plus costs,
expenses, and attorney's fees.
138. Moreover, Burlington's willful and intentional refusal to return Citibank's
property entitles Citibank to an award of punitive damages. See Clymer v. Webster, 156 Vt. 614,
631 (1991) ("As a general rule, punitive damages are recoverable in any action for damages
based upon tortious acts, ... , as long as the unlawful or wrongful acts evinced personal ill will
or showed a reckless or wanton disregard of a another's rights.").
COUNT VII
(City of Burlington)
Declaratory Judgment - Indemnification for Holdover Payments
139. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
140. According to Burlington, its lease term under the Agreement expired on June 30,
2010.
141. Burlington continues to use and possess the Equipment after termination of the
Agreement.
142. Such continued use and possession of the Equipment by Burlington constitutes a
holdover.
143. Section 19 of the Agreement requires Burlington to indemnifY Citibank for any
and all damages arising out of the use and operation of the Equipment, notwithstanding the
termination of the Agreement.
13356756.1
24
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 24 of 38
144. As a result of Burlington's holdover, Citibank has suffered and continues to suffer
losses in rental income through August 17,2011 in the amount of approximately $3,534,471.55,
and such losses continue to accrue at the approximate rate of$235,631.44 per month.
145. Pursuant to the Agreement and pursuant to common law, Burlington is required to
indemnify Citibank for these losses.
146. Citibank has demanded that Burlington make payments to Citibank for holdover
rent and as indemnification for losses suffered as a result of Burlington's continued use and
operation of the Equipment after termination of the Agreement.
147. Burlington has refused to pay Citibank the holdover rent due, or any sum
whatsoever.
148. Citibank is entitled to entry of an Order of this Court directing Burlington to
indemnify Citibank for losses in rental income, specifically for holdover rent since July 1, 2010.
COUNT VIII
(City of Burlington)
Declaratory Judgment - Indemnification for Breach/Misrepresentation
149. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
150. Section 19 ofthe Agreement requires Burlington to indemnify Citibank for any
and all damages arising from a breach of any covenant in the Agreement or from damage caused
by any material misrepresentation contained in the Agreement, notwithstanding the termination
ofthe Agreement.
151. As a result of Burlington's misrepresentations and breach of the Agreement,
Citibank has suffered and continues to suffer losses in an amount in excess of $33,500,000.00.
152. Burlington is required to indemnify Citibank for these losses.
13356756,1
25
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 25 of 38
153. Citibank has demanded that Burlington make payments to Citibank as
indemnification for losses suffered as a result of Burlington's misrepresentations and breach of
the Agreement.
154. Burlington has refused to pay Citibank any such sums.
155. Citibank is entitled to entry of an Order ofthis Court directing Burlington to
indemnify Citibank for losses suffered as a result of Burlington's misrepresentations and breach
ofthe Agreement.
COUNT IX
(City of Burlington)
Rescission - Unilateral or Mutual Mistake
156. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
157. Through mutual mistake of the parties, or, alternatively, through mistake on the
part of Citibank coupled with misrepresentations or other inequitable conduct on the part of
Burlington that induced such mistake by Citibank, the Agreement failed to fully and truly
express the intention and meaning of the parties as to the conditions, scope or degree of the
parties' obligations and representations thereunder.
158. Specifically, the mutual mistake would have consisted ofthe parties' belief that
Burlington indeed had, as expressly represented, sufficient non-taxpayer funds legally available
for rental payments under the Agreement.
159. Alternatively, the misrepresentations or other inequitable conduct on the part of
Burlington would have consisted of Burlington's knowing misrepresentations regarding
Burlington's funds legally available for rental payments under the Agreement and/or its
knowledge of doubt or a dispute concerning such availability.
13356756.1
26
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 26 of 38
160. Burlington's ability to make rental payments under the Agreement was material to
the transaction, because Citibank would not have agreed to advance $33,500,000.00 to
Burlington without Burlington's express representation that it would have the ability to repay
these monies in legally available funds.
161. But for such mutual mistake, or, alternatively, the mistake of Citibank induced by
the misrepresentations or other inequitable conduct of Burlington, Citibank would not have
entered into the Agreement.
162. If Burlington's present assertions as detailed supra concerning the availability of
non-taxpayer funds were true at the time the Agreement was executed, there was no meeting of
the minds between the parties relating to material and necessary terms ofthe Agreement.
163. The parties' mistake as herein alleged relating to material and necessary terms of
the Agreement is a proper basis for rescission of the Agreement.
164. Citibank notified Burlington of its right to rescind the Agreement. However,
Burlington has refused to rescind the Agreement and return Citibank's funds.
165. Citibank has offered and remains prepared to return any consideration already
received from Burlington, net of damages suffered by Citibank.
166. Lacking an adequate remedy at law, Citibank is entitled to rescission of the
Agreement on the ground that it was the product of a unilateral or mutual mistake.
COUNT X
(City of Burlington)
Rescission - Fraudulent Inducement
167. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
13356756.1
27
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 27 of 38
168. Burlington falsely and fraudulently and with the intent to defraud Citibank
represented to Citibank that at least 40 percent of Burlington's revenues were not taxpayer funds
and would be available to make rental payments to Citibank, and further, that Burlington would
not enter into the Agreement unless Burlington both believed and warranted that it could and
would obtain funds sufficient to make all payments due under the Agreement for its maximum
term.
169. Based on Burlington's present assertions, these representations were necessarily
false in fact and would have been known by Burlington to be false at the time they were made.
170. Burlington's ability to make payments under the Agreement was material to the
transaction, because Burlington knew that Citibank would not have agreed to advance
$33,500,000.00 to Burlington if Burlington did not expressly represent and warrant that it would
have the ability to repay these funds.
171. Citibank had a right to rely on Burlington's statements, did in fact reasonably rely
on them, and could not reasonably have discovered Burlington's fraud.
172. In reliance upon Burlington's representations, Citibank agreed to enter into the
Agreement with Burlington.
173. Citibank has suffered and continues to suffer damages in an amount in excess of
$33,500,000.00 caused by its justifiable reliance upon the false information provided by
Burlington.
174. The Agreement should be rescinded, because Burlington's misrepresentations
induced Citibank to enter into the Agreement.
13356756.1
28
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 28 of 38
175. Citibank notified Burlington of its right to rescind the Agreement. However,
Burlington has refused to rescind the Agreement and return Citibank's funds.
176. Citibank has offered and remains prepared to return any consideration already
received from Burlington, net of damages suffered by Citibank.
177. Citibank is entitled to rescission of the Agreement on the ground that it was
induced by fraud.
COUNT XI
(City of Burlington)
Rescission - Negligent Misrepresentation
178. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
179. At all times relevant hereto, Burlington had a legal duty to act with reasonable
care and in good faith in its business and contractual relationship with Citibank, and it was
obligated to take reasonable care to provide truthful and accurate information to Citibank.
Specifically, Burlington was obligated to take reasonable care to accurately disclose its financial
status and a truthful and reasonable assessment of its ability to make rental payments due under
the Agreement.
180. Burlington failed to take reasonable care to provide accurate information to
Citibank concerning its financial status and ability to make rental payments due under the
Agreement.
181. Burlington failed to exercise reasonable care by, inter alia, failing to ensure that
sufficient funds or ability to access funds existed to make the requisite payments under the
Agreement.
13356756.1
29
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 29 of 38
182. Burlington's inaccurate representations concerning its financial status and ability
to make rental payments due under the Agreement were material to Citibank's willingness to
enter into the Agreement, and such representations were made to induce, or with the foreseeable
result that they would induce, Citibank to enter into the Agreement.
183. Citibank has suffered and continues to suffer damages in an amount in excess of
$33,500,000.00 caused by its justifiable reliance upon the false information provided by
Burlington.
184. The Agreement should be rescinded, because Burlington's misrepresentations
induced Citibank to enter into the Agreement.
185. Citibank notified Burlington of its right to rescind the Agreement. However,
Burlington has refused to rescind the Agreement and return Citibank's funds.
186. Citibank has offered and remains prepared to return any consideration already
received from Burlington, net of damages suffered by Citibank.
187. Citibank is entitled to rescission of the Agreement on the ground that it was
procured by negligent misrepresentation.
COUNT XII
(City of Burlington)
Declaratory Judgment - Impermissible Impairment of Obligations of Contract
188. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
189. Article I, Section 10 of the United States Constitution prohibits acts of state
legislation (including acts of a municipality) that impair the obligations of contracts.
13356756.1
30
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 30 of 38
190. To the extent that Burlington contends the meaning of available "taxpayer
revenues" has been limited or modified by government action since Burlington entered into the
Agreement in August 2007, such that all of Burlington's funds, regardless of source, are now
deemed "taxpayer revenues" and are thus unavailable for rental payments, such modification has
made it impossible for Burlington to perform under the Agreement.
191. Citibank is entitled to a declaratory judgment that such a modification would
substantially impair Citibank's expectations and rights under the Agreement in violation of
Article I, Section 10 ofthe United States Constitution and is, therefore, invalid and
unenforceable as against Citibank.
COUNT XIII
(City of Burlington)
Default Under Uniform Commercial Code Article 2A
192. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
193. Article 2A of the Uniform Commercial Code, Vt. Stat. Ann. ("V.S.A.") Tit. 9A
2A-102 (2010), "applies to any transaction, regardless of form, that creates a lease."
194. The Agreement is a "lease," as defined by Article 2A, Section 103(j) of the
Uniform Commercial Code, 9A V.S.A. 2A-I03(j) (2010), insofar as it is "a transfer of the right
of possession and use of goods for a term in return for consideration."
195. The Equipment constitute "goods," as defined by Article 2A, Section 103(h) of
the Uniform Commercial Code, 9A V.S.A. 2A-103(h), insofar as they are "all things that are
movable at the time of identification to the lease contract."
13356756.1
31
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 31 of 38
196. Citibank is a "lessor," as defined by Article 2A, Section 1 03(p) of the Uniform
Commercial Code, 9A V.S.A. 2A-103(p), insofar as it is "a person who transfers the right to
possession and use of goods under a lease."
197. Burlington is a "lessee," as defined by Article 2A, Section 103(n) of the Uniform
Commercial Code, 9A V.S.A. 2A-103(n), insofar as it is "a person who acquires the right to
possession and use of goods under a lease."
198. Section 2A-523(l) of the Uniform Commercial Code sets forth the lessor's
remedies for lessee's default and states, in relevant part: "If a lessee ... fails to make a payment
when due or repudiates with respect to a part of the whole, then, with respect to any goods
involved, ... the lessee is in default under the lease contract." 9A V.S.A. 2A-523(l).
199. Section 2A-523(3)(a) further provides that when a lessee defaults under a lease
contract, "ifthe default substantially impairs the value of the lease contract to the lessor," the
lessor may pursue remedies including recovery of rent. 9A V.S.A. 2A-523(3).
200. Burlington's misrepresentations and breach of covenants concerning, inter alia,
availability of funds to make rental payments under the Agreement constitute an "event of
default" under the Agreement that substantially impairs the value of the Agreement to Citibank.
In effect, Burlington's professed inability to make rental payments under the Agreements, if true,
renders the Agreement worthless.
201. If Burlington is determined to have defaulted under the Agreement, Citibank may,
inter alia, recover rent. See 9A V.S.A. 2A-523(l)(e).
202. Section 2A-529 states, in relevant part:
13356756.1
32
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 32 of 38
After default by the lessee under the lease contract described in section
2A-253(1) or 2A-523(3)(a), or if agreed, after other default by the lessee,
... the lessor may recover from the lessee as damages: (a) for goods
accepted by the lessee and not repossessed by or tendered to the lessor ...
(i) accrued and unpaid rent as of the date of entry in judgment in favor of
the lessor; (ii) the present value as of the same date of the rent for the then
remaining lease term of the lease agreement; and (iii) an incidental
damages allowed under section 2A-530, less expenses saved in
consequence of the lessee's default.
9A V.S.A. 2A-529.
203. Because Burlington maintains use and possession of the Equipment, Citibank is
entitled to recover from Burlington accrued and unpaid rent on the Equipment as provided in the
Agreement and incidental damages in the amount of at least $3,534,471.55 through August 2011
and accruing at the rate of at least $235,631.44 per month thereafter.
COUNT XIV
(McNeil, Leddy & Sheahan)
Negligent Misrepresentation
204. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
205. To secure an express promise that Burlington had the requisite financial and legal
power, authority and capability to perform its obligations under the Agreement, Citibank
required that Burlington provide the Opinion Letter, which is attached herewith as Exhibit B.
206. Burlington solicited the Opinion Letter from its counsel, McNeil, Leddy &
Sheahan to expressly assure and represent to Citibank that Burlington had the requisite financial
and legal power, authority and capability to perform its payment obligations under the
Agreement.
lJ356756J
33
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 33 of 38
207. As legal counsel to Burlington with regard to the negotiation of the Agreement,
and as the author of the Opinion Letter, McNeil, Leddy & Sheahan knew that Citibank intended
to use and rely upon its representations set forth in the Opinion Letter in determining whether to
enter into the Agreement, and indeed, it intended and expressly instructed that Citibank rely on
the information in the Opinion Letter.
208. The Opinion Letter explicitly states that Citibank, "its successors and assigns and
any counsel rendering an opinion on the tax-exempt status of the interest components of the
Rental Payments, are entitled to rely on this opinion."
209. McNeil, Leddy & Sheahan had a duty to use reasonable care to impart correct,
reasonably considered, fair and non-deceptive information to Citibank.
210. McNeil, Leddy & Sheahan in fact induced Citibank to enter into the Agreement
by representing in its Opinion Letter: "We are advised that approximately 40 percent of general
fund revenues are derived from other sources than through taxation ofthe City's taxpayers."
211. On information and belief based on Burlington's present statements, this
representation by McNeil, Leddy & Sheahan was incorrect when made, and McNeil, Leddy &
Sheahan knew or should have known of the incorrectness of the representation and that Citibank
would rely on the representation to its foreseeable detriment in agreeing to proceed with the
transaction.
212. Upon information and belief: McNeil, Leddy & Sheahan failed to use reasonable
care to confirm and accurately and unambiguously communicate to Citibank concerning the
availability of general fund revenues before attesting to their availability.
13356756.1
34
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 34 of 38
213. Citibank foreseeably and justifiably relied upon this erroneous opinion in agreeing
to enter into the Agreement with Burlington and in, inter alia, advancing $33,500,000.00 to
Burlington.
214. As a direct and proximate result of its reliance upon the incorrect representation
made by McNeil, Leddy & Sheahan, Citibank has suffered damages in an amount in excess of
$33,500,000.00.
COUNT XV
(McNeil, Leddy & Sheahan)
Third Party Beneficiary Breach of Contract
215. Plaintiff incorporates by reference and realleges the foregoing allegations as if
fully set forth herein.
216. McNeil, Leddy & Sheahan contracted with Burlington to provide legal services
and counsel to Burlington in connection with the Agreement.
217. Burlington's contract with McNeil, Leddy & Sheahan for legal services was
intended to benefit Citibank, as Burlington sought to enter into the Agreement with Citibank and
further sought McNeil, Leddy & Sheahan's services to expressly represent to Citibank in the
form of its legal opinion that Burlington had the requisite power, authority and capability to enter
into the Agreement.
218. In its capacity as legal advisor, McNeil, Leddy & Sheahan prepared the Opinion
Letter and intended that the Opinion Letter be relied upon by Citibank and induce Citibank to
proceed with the transaction with Burlington and advance to Burlington the sum of
$33,500,000.00.
13356756.1
35
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 35 of 38
219. Citibank was an intended and identified third party beneficiary of Burlington's
contract with McNeil, Leddy & Sheahan.
220. McNeil, Leddy & Sheahan breached its contract to provide reasonable,
professional and competent legal services to Burlington by its failures as aforesaid.
221. This breach proximately caused Citibank's damages in an amount in excess of
$33,500,000.00.
222. McNeil, Leddy & Sheahan is liable to Citibank as a third party beneficiary of its
contract with Burlington.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court enter judgment against the Defendants
and in Plaintiffs favor on the counts of the Complaint, or as indicated enter judgment on such
counts in the alternative, and award relief as follows:
1. Preliminarily and permanently enjoin the City of Burlington d/b/a
Burlington Telecom from further using and depreciating Citibank's assets,
including its Equipment and vehicles, to generate revenue for itself;
2. Order the City of Burlington to place all of the revenues Burlington
Telecom has generated since June 30, 2010 and will continue to generate
from the use ofCitibank's property into a constructive trust or into an
escrow account with this Court:
3. Order the City of Burlington to pay Citibank holdover rent, and to
indemnify Citibank for expenses, and any and all losses relating to
Burlington's continued use and possession of Citibank's Equipment and
13356756.1
36
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 36 of 38
vehicles since June 30, 2010 and Burlington's breach and/or
misrepresentations;
4. Order the City of Burlington at its own cost to de-install and return
Citibank's Equipment and vehicles to Citibank at a location anywhere in
the United States in accordance with the parties' Agreement;
5. Order the City of Burlington to pay over to Citibank any revenues of the
City of Burlington d/b/a Burlington Telecom held in constructive trust or
escrow to which Citibank is entitled;
6. As necessary and on Citibank's Motion, appoint an interim receiver to
inter alia: (a) monitor Burlington's compliance with this Court's orders;
(b) manage the constructive trust or escrow account; (c) organize the
affairs of Burlington Telecom; and (d) perform an accounting of
Burlington Telecom;.
7. Award Citibank damages in an amount to be proven at trial in excess of
$33,500,000.00;
8. Award Citibank punitive damages for the City of Burlington's intentional
breach of its clearly-defined contractual obligations, intentional breach of
the implied covenant of good faith and fair dealing, and intentional
conversion of Plaintiffs property;
9. Alternatively, rescind the Agreement between the parties and order the
return of all principal sums advanced in the amount of $33,500,000.00 to
Citibank;
13356756,1
37
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 37 of 38
IO. Award Citibank attorney's fees and costs incurred herein, including pre
judgment and post-judgment interest; and
11. Grant any other relief to which Citibank is entitled and such other relief as
is just and proper under these circumstances.
Respectfully submitted,
Dated: September 1, 2011 CITIBANK, N.A.,. A ASSIGNEE OF
ITICAPITAL M CIPAL FINANCE
(
900 Elm Street
Manchester, N.H. 03101
(603) 628-4000
kfitzgerald@nixonpeabody.com
soconnell@nixonpeabody.com
hkilibarda@nixonpeabody.com
13356756.1
38
Case 2:11-cv-00214-wks Document 1 Filed 09/02/11 Page 38 of 38