An Irresolvable Conflict

Ordinances 2021-2, approving the General Management and Performance Contract with Dalkia, and Ordinance 2021-4 approving and authorizing execution of the financing agreement for the entire Energy Savings Project, are in irresolvable conflict. If one is valid, the other is not. 

Approval of the financial agreement (ordinance 2021-4) was the third of three related ordinances addressing the streetlight replacement project (2021-2) and the solarization and utility energy savings projects (2021-3). These three ordinances were considered in order at the February 24 Governing Body meeting. 

It was during the discussion of Ordinance 2021-2 that concerns over the lighting plan were raised. As a result of those concerns ordinance 2021-2, which authorized the city to execute the Dalkia General Management and Performance Contract (GMPC), was amended “to extend the work phase from 6 months to 9 months and to engage the public prior to seeking approval by the Governing Body of the lighting design, and converting streetlights to LED.”

Here’s the conflict: ordinance 2021-4, which authorized the execution of the Lease-Purchase financial agreement, required separate authorization of the GMPC. It also included the language “repealing all action inconsistent with this ordinance.” Ordinance 2021-2 both authorized the GMPC and deferred consideration of a lighting plan, was – owing to the deferral of the lighting plan – was inconsistent with 2021-4, which incorporated the Dalkia Lighting Plan as part of the financial agreement. Correspondingly, approving the financial agreement repealed ordinance 2021-2. But, ordinance 2021-2 approved the contract with GMPC; so, it would appear that the city also repealed its consideration of Dalkia contract.  

What this appears to mean is that execution of the GMPC has not been authorized by the Governing Body; and, that the terms of the financing agreement – which requires approval of the GMPC – have not been met. The end result is that the city does not have legitimate access to financing for the entire Energy Savings Project: solarization, water and utility improvements, and the street lighting project. 

Important questions to investigate include

  • Has the financial agreement of ordinance 2021-4 been executed in violation of the ordinance?
  • Has the city accessed any of the funding associated with the financial agreement, which may have been improperly executed?