Over the last two council meetings, as many as 40 different people have spoken during public comment—expanding the full range of Davis’ political divide—to complain about BrightNight and the council agreement for a solar field. Tellingly, not one person has gotten up to defend the city’s deal.
In an op-ed this week, Mayor Brett Lee and Councilmember Dan Carson attempt to extinguish the controversy—this is the second attempt by the city to quell public concern, as the first was an FAQ that seemed to have little to no effect.
The commentary, as I read it and understand the complex issues involved, really does not address the core concerns raised. The chief complaints at this point appear to be that the city used a non-competitive process which resulted in a low-offer and thus left money on the table while failing to go through a full public process that might have identified deficiencies in the offer by BrightNight.
The mayor and Councilmember Carson lead with the issue of advancing or fulfilling the city’s climate action goals. Those are important goals, but by raising them they are giving prominence to an issue largely not in dispute.
“We have a lot of work left if we are going to do our part to address the huge challenges before us posed by climate change,” they write. “Accordingly, when an unsolicited offer came in the door late last year to consider the use of city land for a solar plant, we acted responsibly and in the public interest to consider this potentially significant step toward meeting the city’s ambitious climate action goal of achieving climate neutrality by 2040.”
The point in question is whether they did act responsibly in agreeing to what some consider a low offer and, as others have pointed out, there is no guarantee that the energy would even go to Valley 
Clean Energy.
Nowhere that I see in this op-ed do Mayor Lee or Councilmember Carson address this point.
They are correct in noting that the offer was “unsolicited” and that the “land has not been used since 2017.”
Indeed, one person told me that the NRC and Open Space Commissions have been looking into best uses for this land for at least five years. Had the city engaged the appropriate commissions, they might have asked other questions.
“City staff carefully vetted the credentials of our would-be partners before we entered into the option agreement,” they write. “In reviewing BrightNight’s offer, we carefully took into account the allowable uses of the land under Yolo County zoning, comparable solar lease rates, and comparable long-term orchard rates.”
That may or may not be accurate, but what they didn’t do is consult the city commissions or entertain any sort of public process.
They add, “This is not a done deal, in any sense of the word.” Here they argue: “We have not signed a lease with the firm proposing this project and will not make any binding commitment to proposed lease terms and conditions until the project proponent wins state approval to connect to the grid, obtains project financing (without a dime of city money), completes an environmental review, and obtains the necessary permits from the county.”
But this would appear to be at the very least misleading.
When City Attorney Inder Khalsa nearly two weeks ago was asked if they could reconsider, she said that at this point they are bound by the option agreement.
It is true 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.”
Mayor Lee and Councilmember Carson argue: “The option agreement buys time for all of that work to go forward while posing no financial risk to the city and allows us the flexibility to write a final lease that makes sense for both parties.”
They ask, “Why didn’t we reject BrightNight’s offer and go out for a competitive bids for the use of the city land?” They argue: “Our would-be partner faced an April deadline to apply to the California Integrated System Operator for permission to hook up to the electricity grid. Going out to bid would have assured that BrightNight missed that deadline.”
But that still would have given the city the time to evaluate whether they were getting a fair market deal and run it through the commissions. It wasn’t ideal, but the way the city handled this invites second-guessing and criticism and undermines the public trust.
Mayor Lee and Councilmember Carson add, “Our analysis determined that a bid process provided little certainty that a more attractive deal would be produced and would certainly have delayed progress 
on this opportunity for addressing our climate change goals for at least a year or longer.”
A key question that they don’t address is if they went to an RFP process, would they have received another offer at least as good? It seems likely. But they appear to dismiss this possibility out of hand.
As one person put it to me: “If someone comes to buy your house for less than the market value of the house should you sell to them? Or should you go out and put it up for sale? City staff did not even ask around to find out if this was a one time offer.”
“A bid process provided little certainty” of a more attractive deal, but the way they went about this process guaranteed that a more attractive deal would not have been produced. From the city’s standpoint, what was the urgency to go through this process?
Mayor Lee and Councilmember Carson do acknowledge: “We do regret that our further efforts at due diligence did not give some city commissioners an opportunity to weigh in more fully on the option agreement.”
But they use COVID-19 as an excuse and they bury the acknowledgement toward the end of their piece.
They write, “There appears to be some confusing and conflicting messages out there about this issue. And based upon some of the inaccurate information that has been going around, it is understandable that some in the community would have questions about this agreement.”
But the city has now had the option to correct that record. They put out an FAQ and now an op-ed and my questions really have not been answered in any satisfactory manner.
In fact, I would argue that there are no answers that will make this seem okay—if there were, this op-ed would have resolved the issue and to me, someone with no dog in this fight at all, it does not.
On the contrary, I find the fact that people calling this deal into question has caused three of the five councilmembers to dig in rather questionable. The deal does not seem so great that the city couldn’t have backed off, gone through a public process and risked an RFP. Given the short-time frame, it seems unlikely that BrightNight had another option anyway.
—David M. Greenwald reporting
They could have at least contracted for an independent appraisal of the value of a ground lease for solar on the property. Even if time was of the essence, as the lawyers say, such an appraisal could be done in a matter of days. In fact they still could.
I find it funny that the two CC members who touted their business and finance experience while running for office seem to have failed to do their due diligence and want us to believe that they got the best possible deal for the city. Okay Councilmembers Voltaire and Pangloss. But please forgive us lowly peasants for our impertinent questions about your fiduciary responsibilities because some of us notice a disconcerting pattern. Forgive us if we seem Les Miserables.
You see this is the second major contract in the last year that has been awarded without a competitive process. The first was the Wave internet infrastructure contract. To some of us, who can be counted among those that pay the taxes and fees that help run the City, this deal doesn’t pass the smell test. Maybe that sweetheart deal stench is from the waste water plant or the dump. On the other hand maybe its coming from the Council Chambers.
I can’t believe that this brand new company was the only developer that was interested in building a solar farm on City owned land. The City Council is obligated to manage its properties for the benefit of the City and its constituents.
I do not doubt the good intentions of any of our city council members. What I do doubt is their commitment to transparency & community involvement in decision making. I only voted for one of the three council members who have chosen to staunchly defend this action, and this was the main reason. This issue of a priori acceptance of the views of only one aspect of our community with a sometimes blatant disregard for the positions of others is the main reason. I accept it as human nature to prioritize our own interests or the interest of those who have chosen a similar path in decision making but feel those who take on a leadership role have an obligation to try to see beyond their own perspective. It seems clear to me that did not happen in this case.
If the city doesn’t straighten out this mess and get the true value of the lease of this land how in the future can they ever come after homeowners for more parcel taxes to cover city costs?
Uhhh… by putting it on the ballot? And explaining why it is needed, or the ‘trade-offs’ if it doesn’t pass?
Uhhh….maybe next time they ask for a new parcel tax the voters will remind them how much money was left on the table if this deal goes through as currently structured.
And then say “NO”
I have to agree with Keith that this inability to admit that they misidentified the potential value of this deal (see my comment below) calls into question the credibility of at least Lee and Carson trying to persuade the electorate on another tax increase. And given the likely large deficit, that’s not a good place to be standing.
Boy, what a boondoggle. A couple thoughts here:
1) The Orwellian language of the Op-Ed is striking. The Mayor and Councilmember focus on the word “option” to make it seem like it’s just another choice the city can make. Seems to me, based on what the city attorney stated, we are locked into this agreement for the foreseeable future.
2) They state in the Op-Ed that “The City Council discussed the negotiation of the option agreement in closed session, as state law allows, so that we could maximize the fiscal and environmental benefits of the option agreement for our citizens.” If that’s not a piece of newspeak I don’t know what is.
3) They couch this deal in terms of the climate emergency. They try to distract us with fears of more fires and foul air. They even go as far as to mention the Audubon Society as if that has anything to do with the failed city process in this deal.
4) They claim due diligence but the whole deal seems to have been driven by the developer’s timeline, not the city’s need for proper open and transparent process.
This whole process has really stunk. And the Op-Ed does nothing but reinforce my distrust of this city council’s ability to work in the best interest of the city. It comes across as disingenuous and smarmy. A second-class attempt to rationalize a set of bad decisions that none of the four council members are willing to take any responsibility for.
Who is driving the car? The council, the purported policy makers for Davis, or city staff who appear to have their own agenda on these and other planning issues.
A better analogy would be an owner, with a chauffer… the chauffer does not pick the destination… and, depending on the owner, who prescribe routes… chauffer is limited as to questioning destination, and can only suggest routes… the owner can override…
We have gone thru this before… where CC member(s), and a YC Supervisor demanded better cel phone coverage for West Davis… a charlatan comes in, claims to have the PCA on their side, and bullied susceptible senior staff into supporting their desire to put cel towers pretty much wherever they wanted… that did not go well…
David and many others will remember that…
The commentary, as I read it and understand the complex issues involved, really does not address the core concerns raised. The chief complaints at this point appear to be that the city used a non-competitive process which resulted in a low-offer and thus left money on the table while failing to go through a full public process that might have identified deficiencies in the offer by BrightNight.
The major concern that I have is that it does not appear that the Council Majority has actually listened to the Public Comment voicemails, or actually read the Public Comment e-mails they have received.
As part of our Utilities Commission deliberations, I requested copies of all the e-mails sent to councilmembers@cityofdavis.org, and when they arrived on Thursday I read them all, and listened to all the recorded public comments from the ZOOM meetings, and read the letters to the editor in the Enterprise, as well as the comments here in the Vanguard. There are more than 84 separate public comments from at least 54 different Davisites. The comments break down into the following major themes
— “Transparency was Hauled Off into backroom” (14)
— “Democracy hijacked by Flawed Process” (28)
— “City leadership has seriously lost its way”(10)
— “Haste Makes Waste / Deal Not Vetted” (26)
— Lack of Due Diligence (32)
— Bad Faith Negotiations (18)
— Sole Source Contracting / No Competitive Bid Process (17)
— City went to the Negotiations Without Subject Matter Expertise (11)
— Failure to provide the community with clean energy through VCE (19)
— Alternatives Uses were Not Considered (10)
— Frerichs was Right (7)
— The Contract Term is too long (8)
— Here is a possible Way Forward (50)
— Risks and Liabilities for the City (7)
— Benefits to the City (3)
— “Everything that Lorenzo said” (3)
— Consider Alternative sites (1)
— Looks a lot like the MRAP decision (1)
In fairness there was one positive comment on 3/25 from a person in Davis, and there were two positive comments by Martin Hermann and Ron Kiecana, both with BrightNight
Also in fairness, it is possible that the Council could have missed the seven comments that pointed out the risks and liabilities for the City in the deal, but it takes a special kind of reading to miss the 28 comments that focused on how Democracy has been Hijacked by the Flawed Process or the 32 comments that focused on the lack of due diligence.
If you go through the Lee-Carson OpEd and the City’s Q&A document one thing is crystal clear … the Council Majority are talking to themselves, not to the public commenters and not to the taxpayers/residents/citizens.
City Attorney Inder Khalsa was quoted above:
Do I interpret this to mean that if the city cannot negotiate a lease agreement for this project, they (we) can call off the wedding? If the city can get a “fair” or even a good deal when the time comes, isn’t it too early to torpedo this because of what we’re afraid might happen? It just seems like the crucial decision point is still in the future.
Actually Dave the crucial decision point is in the past. When the possibility of this opportunity came up back in the summer of 2019, city staff should have begun a due diligence process similar to one Yolo County staff began in 2011. Yolo County staff looked at all the possibilities. They weren’t blinded like deer-in-the-headlights by the fact that an unexpected offer suddenly appeared on the table. They truly walked the walk of fiduciary responsibility, rather than simply talking the talk.
By doing true due diligence and looking at the alternatives, Yolo County came up with a project that has added over a half million dollars of cash to the County coffers each year since 2012 (over $4 million total) and eliminated over a half million dollars a year of electricity expense from the County Budget each year since 2012 (another over $4 million total) . So by doing their jobs the County staff have improved the County Budget by over $1 million per year, each year for eight years, with no end in sight to that million dollar a year contribution. Davis could have done the same thing if we had done our homework … but staff and Council chose not to do the homework.
With all due respect, you speak of “woulda’, coulda’, shoulda'”…
I’m looking forward to a constructive, real discussion of how do we proceed, moving forward…
Without making judgement on how we got here, I believe we need to move to a better place, incorporating many of the suggestions as to what “a better place” should look like…
Bill the answer to your question is really very easy. Planning Commissioner Greg Rowe said it more eloquently than I could in his letter to the editor of the Enterprise Here are his words, quoted verbatim.
This article is insulting to those who have opposed this sham deal. It belittles us as putting forth “inaccurate” information. It also ignores that many of us have been calling on the City to act much more quickly on the climate emergency and instead have met resistance from these very same Council members!
They defend their so-called “in house experts” who failed to know the CAISO interconnection process well enough to understand that BrightNight instead avoided a $250,000 deposit. (Two of us have a combined experience in the energy industry of over 70 years including at the CAISO.) That deposit should have been the basis for the lease option price, which could have been $25,000 a year versus the $5,000 that the City agreed to.
Those “experts” also should have known that an alternative would deliver tens of millions of dollars in economic benefits to the City. (I consulted to Santa Clara and San Joaquin counties on projects that deliver these benefits to their residents.) Instead, despite the authors mistaken claims, there is no guarantee that any of this green power will make it to VCEA or the City because the City gave away all of its leverage. Anyone can negotiate a deal at the lowest possible price with no strings for the other party.
And on top of that, the Councilmembers try to expand the definition of what’s allowed to be discussed in closed session well beyond what legal precedent and opinions by the state’s Attorney General allow. That is why a group of us filed a “cure and correct” request on Thursday.
These Council members should reconsider how they came to this decision and the quality of the advice that they are getting from the City staff. We are demanding an opening of the City decision process so we don’t yet again make the same mistakes that led to the MRAP military vehicle purchase, Recology-DWR franchise transfer, and Astound Wave broadband deals. We need prudent environmentally-friendly policies and implementing decisions that maximize the financial and economic gains to our residents.
With whom filed? Transparency as to the actual request? Text?
Who is ‘a group of us’?
Filed Thursday in compliance with the provisions of Government Code Section 54960.1, in a single e-mail to the City Clerk, City Council, City Manager, Assistant City Manager and City Attorney.
As provided by Section 54960.1, the City has 30 days from the receipt of the cure and correct letter to either cure or correct the challenged actions, or inform the public of its decision not to do so.
The letter identifies four sections of the Brown Act that the City violated:
• Section 54954.5(b) — Failure to correctly identify the Negotiating Parties.
• Section 54954.5(b) — Incorrect property identification
• Section 54956.8 — Discussion in closed session of topics not permitted under the real-estate-negotiations exception
• Section 54956.8 — Failure to hold an open and public session prior to closed session
All four citizens filing the cure and correct letter, Lorenzo Kristov, Johannes Troost, Richard McCann, and Matt Williams, had sent individual personal letters of concern to the City Council in advance of the March 24 meeting where the BrightNight lease option was approved. The four then collectively sent a Request for Reconsideration of Lease Option Agreement and Term Sheet with BrightNight prior to the April 7 Council meeting, further illuminating serious concerns with the closed session process and many specific terms of both the lease option and the lease term sheet, as well as the City’s failure to engage with several City Commissions that had been working with City Staff to consider alternative uses of the same property, and the award of the lease option without competitive bidding. The City Council took no action on April 7 to consider the concerns raised at that time.
Notably, Dr. Kristov and Dr. McCann, both career energy experts, were just announced on April 21 by the City Council as recipients of the City Environmental Recognition Award for their role in formation of the Valley Clean Energy Alliance. Dr. Kristov has been invited to speak at energy policy conferences around the world, while Dr. McCann has been testifying on behalf of the state’s community choice aggregators, including VCEA, before the California Public Utilities Commission. Mr. Troost and Mr. Williams have served on the City’s Finance and Budget Commission as well. All four currently serve or have served on the City’s Utilities Commission. Since these individuals first sent their separate concerns to the City Council prior to the March 24 meeting to request that the Council defer a decision, this group has sought to engage with the City to try to address their concerns, but City leadership has been entirely dismissive of their requests, and the requests of more than 100 other citizens, for the City to reconsider this transaction.
On April 22, the night before the cure and correct letter was submitted, the City’s Utilities Commission formally approved by a 5-2 vote a Recommendation to Council that they rescind the BrightNight agreement.
Thank you for a straight-forward, thorough answer…