Herring River Restoration Project

The Friends of Herring River, a private non-profit corporation, is the primary project manager for the Herring River Restoration Project. In March 2022 the town of Wellfleet entered into a legally binding agreement with the Friends to "oversee the work, in coordination with the Town and the Herring River Technical Team (HRTT) of the consultants on the project acting as project and contract manager."

In August 2013, Wellfleet town counsel Gregg J. Corbo expressed misgivings about the town's engaging a private non-profit corporation to manage the project. He sent that opinion to Wellfleet town administrator Harry Sarkis Terkanian in an email commenting on a revised draft of MOU III, the memorandum of understanding between Wellfleet, Truro, and the National Park Service regarding the Herring River Restoration Project.

"The proposed MOU contemplates the creation of a private non-profit corporation to manage the construction and initial operations of the project. In my opinion, to ensure that it can accomplish the parties' objectives, such an entity would have to have the ability to raise and expend funds, acquire property interests, enter into contracts and sue and be sued in its own name. Although I have not researched this issue, I am concerned that the parties lack the legal authority to create such an entity in the absence of special legislation. I am also concerned that the use of a private corporation for this purpose will raise issues under the Conflict of Interest and Procurement laws."

Whether the Friends of Herring River can "be sued in its own name," as questioned by Attorney Corbo, appears to be moot by the rules of agency, whereby the principal assumes legal responsibility for the actions of its agent. The town of Wellfleet would appear to be financially responsible for financial liability arising from the actions of the Friends of Herring River on its behalf.

Furthering its financial liability, Wellfleet agreed to the following indemnification clause in the 2022 Memorandum of Agreement with the Friends:

"To the extent permitted by law, the Town agrees to indemnify, defend, and hold harmless FHR and its directors, officers, employees, and agents from and against any and all liabilities, demands, damages, claims, losses, costs, or expenses, including reasonable attorneys' fees and costs (collectively, "Claims"), to the extent that they arise out of or result, directly or indirectly, from the negligence, misconduct, breach of warranty, representation, or covenant, or any act or omission by the Town or any of its employees in performing the Services."