A week after Johannes Troost, Matt Williams, Lorenzo Kristov, and Richard McCann called for reconsideration of the council approval of a Lease Option Agreement with BrightNight for a solar farm on a city owned property, the council heard from a large and diverse group of citizens urging them to rescind the action.
Critics claim that the sole source contract lacked an open process, one that could be publicly vetted, when the council agreed during the fateful first meeting during the COVID-19 shutdown.
The letter from Mr. Troost, et al, argued that the rental rates “are undervalued” and the agreement unreasonably and unnecessarily exposes the city to a variety of risks.
The letter called on council to “direct staff to research the fiscal, legal and business issues identified in this letter,” and “rescind Council’s approval of the Item 9 resolution to allow the City Manager to execute the Lease Option Agreement and Term Sheet with BrightNight” that will “give the solar energy company an Option to Lease up to 235 acres of city-owned land near the City’s Wastewater Treatment Plant on County Road 28H for a Commercial Solar Farm and Solar Energy Testing Facility.”
But it may not be that simple.
Under fire, the city manager announced on Tuesday that the City would be releasing an FAQ information piece on the agreement – to “clear up misunderstandings.”
Following public comment, Mayor Pro Tem Gloria Partida asked City Manager Mike Webb what options the council had at this point.
He said, “Staff has been working on a question and answer piece that we intend to post tomorrow – to answer and respond to many of the questions and views that are out there in the community with hopes that that information will provide greater clarity to the agreement that the city council approved – what it is and what it isn’t.”
The Mayor Pro Tem then asked, “What is the procedure if we wanted to reconsider this? Is that something that can be done? Or are we legally bound by the decision that we made.”
City Attorney Inder Khalsa explained that the option agreement allows the city to negotiate a lease agreement that has not been approved as of yet.
“The option agreement was executed and we are now legally bound by it, therefore there’s no way for council to rescind the option agreement through a motion,” she said. “We would look to the terms of the option for termination if the council wished for us to opine on that.”
Councilmember Lucas Frerichs asked, “What does that entail?”
Ms. Khalsa responded, “I haven’t reviewed the termination provisions in the option agreement.” She did note that the “city is not bound by the terms that are laid out in the term sheet,” and those can be negotiated.
During the long range calendar Gloria Partida again expressed the desire to put the matter back on calendar, but Mayor Lee suggested she talk to the City Manager first, and then could put the matter on the agenda if she so desired.
On March 24, the Council voted 4-1, with Lucas Frerichs Voting “no,” on the deal that critics have described as “very favorable for BrightNight” and “crafted completely in secret” with “no commitment to actually provide energy to Davis.
Lorenzo Kristov in a weekend op-ed noted, “Despite the claims by council members and staff of the renewable energy and climate action benefits to the city… the energy from the project, if it is built, will go into PG&E’s grid for sale anywhere in the western regional power grid.”
“The deal was crafted in closed sessions over a period of several months with no information released to the public until the posting of the March 24 Council agenda,” he said. “Over the preceding months, some city commissions were having talks with city staff about potential uses of the property, but there was never a mention of the BrightNight project from the start of talks with the developer last summer or fall until the March 24 staff report.”
The council heard an earful from the public on this issue – it was a large and broadly diverse group of citizens.
Scott Ragsdale told the council that he expressed “considerable and very clear concern about the nature of the lease, how it came about, as well as the nature of the agreement and the fact that it well may be a less than advantageous agreement.”
“It would be best if the council would consider rescinding the agreement,” he added.
Gerry Braun said, “I think it would be very disappointing if after all of the effort that the city has put in… to advocate for community solar… if a solar project that is exactly what would have been the result of all that, would be implemented without the electricity actually being delivered locally and to Davis.”
He noted that the utility commission which has not been consulted on this, “has the expertise to help the city move forward in a good way.”
Linda Deos questioned the city for not utilizing the usual RFP process for selecting the best possible company and agreement. She noted that one of the biggest issues raised by the public “was the need for transparency in government – transparency leads to trust and trust leads to public support of tax measures and new infrastructure projects like the one proposed here.”
She noted that lack of transparency undermined public trust as well as the rise of “conspiracies – real and imagined.”
Kevin Scott from South Davis said, “I’m a little bit suspicious of this. I think we may be giving a way a little too much.”
Elizabeth Lasensky thanked Councilmember Frerichs for his “no vote” on March 24. She argued that they “need to pull that entire contract” and “begin a collaborative process” with the public and commissions to come up with a better agreement.
Francesca Wright argued “we have commissions, we have to use them.” She argued that the very educated public in this system is “being ignored.” “We have a City staff that frankly seems to want to push things through without respect for a good process and getting the expertise that they need.” She said, “It’s the job of the council to go to the community and get the expertise.”
Bill Julian said, “The four members of the council that have supported this action have made a fundamental mistake in the action that they took – both by bypassing the normal processes for a major city action and inviting potential reaction under CEQA.”
Councilmember Will Arnold at the March 24 meeting said, “I think now a bird in the hand is worth maybe more than just two in the bush at this point, because if we were to start an RFP process right now, who knows whether other companies are willing to take the type of risk that this company is willing to take.”
Bill Julian called that comment “ironic” in that “the bird may be an endangered species, the Swainson’s Hawk whose habitat is throughout Eastern Yolo County.”
He cited four errors that the council has made, which he said stem from one underlying problem, “which is a contempt for public planning, for public process and for public decision-making with respect to major infrastructure issues.”
It is unclear how the city will respond to this. While Gloria Partida seemed ready to reconsider, the other members did not respond other than Lucas Frerichs who has already voted no.
—David M. Greenwald reporting