Originally posted at Before It’s News
May 12, 2008: (VIDEO) At Commissioner’s Donovan’s suggestion, the Commission votes unanimously to include at Back-out clause in the PPA contract as a “friendly amendment” and Bob Hunzinger speaks favorably of the Commission’s vote. The inclusion of the Back-out clause is verified in a 9/26/2008 letter to GRU’s Ed Regan from Josh Levine at Nocegdaches (later American Renewables). In the contract, the back-out clause is officially referred to as a Termination For Convenience Clause that serves to protect the public’s interest. But in 2012, the contract was un-redacted to reveal the back-out clause had been illegally removed wthout public notice.
12/17/2009: (VIDEO) After Dian Deevey speaks, Bob Hunzinger dodges a direct answer when Commissioner Donovan asks if the Back-out Clause remains in the PPA contract. This event is the concrete needed to build a case for that Mayor and Commission’s violation of Sunshine Law.
Commissioner Jack Donovan asks if there is still a back door out clause in the GRU-GREC Contract. Bob Hunzinger avoids answering the question, but indirectly implies that there remains a back door out clause. The importance of this video clip is not that Hunzinger lied –he muddied the water enough with his answer that it cannot be clearly shown that he lied. And the issue here isn’t that Commissioner Donovan was asking about the back door out clause in the context of its effect if the PSC found no need for the GREC plant. The issue is that Commission Donovan on 12/17/09 — more than seven months after the commission approved the GRU-GREC contract without any mention of the back door out clause having been removed or not included — still believed the back door out clause was in the contract, which puts a lie to Mr. Hunzinger’s claim (which he made through GRU General Counsel Shayla McNeill at the 10/10/11 RUC meeting) that he had met with every commissioner prior to the May 7, 2009 vote and made known to them that there was no back door out clause in the final contract. Since none of the commissioners present at the 12/17/09 meeting stepped forward to tell Mr. Donovan, when he asked if the back door out clause remained in the contract, it is reasonable to assume that none of the other commissioners had been told by Mr. Hunzinger that the back door out clause had been removed.
On April 21, 2011 Mayor Craig Lowe attempted to paper over this Sunshine Law violation by stating that he commissioners at the time of the May 7, 2009 vote all knew that the back door out clause had been removed (a position that he has now seemed to back away from, perhaps realizing that his knowledge of what the other commissioners knew is itself a violation of the Sunshine Law in that the removal of the backdoor out clause was never discussed in a public meeting). Mayor Lowe also attempted to downplay the significance of the lack of a back door out clause, in any event (look at the April 21, 2011 video for the exact language), stating that none of the other commissioners since the May 7, 2009 vote wanted to get out of the contract as far as he knew. Aside from his knowledge of what the other commissioners knew or did not know being itself evidence of a Sunshine Law violation, even if it were true it does not “cure” the problem. What a commissioner may or may not think he wants to do is irrelevant in the law. What matters is what a majority of the commission actually does in a duly noticed meeting. Having failed to hold a duly noticed meeting and discuss the back door out clause in public, it is impossible to say whether the majority of the commissioners would have agreed and voted to remove the back door out clause. No court that we are aware of has ever held that the after the fact stated intent of a commissioner somehow is a cure to a violation of the Sunshine Law.
Bottom Line: The GRU-GREC PPA was approved by the City Commission in violation of the Sunshine Law and therefore is a void contract.
In view of ongoing global financial volatility and the diminishing credibility of the Gainesville City Commission and GRU on persistent Sunshine Law violations, an emergency review of the information provided to Moody by Gainesville Regional Utilities and the City Commission headed by Mayor Craig Lowe is highly recommended.
The nonrecourse debt financing for the City of Gainesville in Alachua County, Florida (Gainesville Regional Utilities, American Renewables, GREC, Gainesville Renewable Energy Center) is being provided by the Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as coordinating lead arranger, as well as Natixis, Rabobank Nederland, ING Capital, Crédit Agricole and Société Générale. Equity is being provided by the parties involved in the development of GREC (Energy Management Inc., BayCorp Holdings Ltd., and Tyr Energy Inc.), as well as by certain principals of Fagen Inc., the contractor building the facility.
Christopher Smith acted as financial advisor to the project; Cadwalader, Wickersham & Taft acted as counsel to the borrower; and Chadbourne & Parke acted as tax counsel to the borrower. In view of ongoing global financial volatility and the diminishing credibility of the Commission and GRU on persistent Sunshine Law violations, an emergency review of the information provided to Moody by GRU is highly recommended. Source