Answers? No, questions.

I received a package of information from the City of Great Falls today (along with a bill for photocopies in the amount of $34.50; there's nothing I won't do for you guys!)

Initially, I need to make one thing clear. Any complaints I have about the information are not directed to our City Clerk, Peggy Bourne. She is responsible for maintaining records and I truly believe from what I received that she indeed worked hard to provide me with the information I had requested. Any complaints I have are more of a substantive nature and those issues stem from the individual or individuals who create the information, not those who store it.

A quick recap of what I requested:

  • Electric City Power Articles of Incorporation.
  • Electric City Power resolutions, if any, and agreements, if any, between it and any other persons or entities.
  • The feasibility study referred to in the November 4, 2003, Agenda Report.
  • The document or documents that evidence Electric City Power (or the City's) ownership of and/or joint venture with SME. This would include, I think, any stock purchase or other equity purchase agreements and/or any joint venture agreements, and any other agreement or document that evidences or obligates ECP or the City to contribute additional sums.
I received the Articles of Incorporation.

Seriously, of the requested information, that's what I received. And the problem is not that someone is withholding this information, no sirreebob. The problem is that the other documents I asked for might not even exist.

Electric City Power resolutions and agreements? From Ms. Bourne: "You will note that ECPI has not passed any resolutions or entered into any contracts....The ECPI minutes refer to three documents. The first is a development agreement between the City and SME which is still in draft form. This was mentioned in the March 6, 2006 minutes. The City Commission has not acted on that agreement."

What? We've come all this way and spent all this money and we don't even have an agreement yet? The analysis is complicated, too, by the fact that there was apparently not a March 6, 2006, meeting. I am guessing she meant the December 6, 2005, meeting where the draft form of the development agreement is contained in the Exhibit to Resolution 9537.

This Exhibit tells us what the City hopes to negotiate in its agreement with SME. For example, hopefully "SME will permit the City, as the co-owner of the Station, to participate fully in the
decision-making process relating to the development of the Station," whatever that means. What does "participate fully" mean? I think we might have wanted to nail down just what full participation is before we started spending taxpayer money.

The parties "agree to negotiate in good faith to develop a mutually-agreeable and definitive joint ownership or co-tenancy agreement that will specify their respective ownership interests in the Station, provide that each party is entitled to receive the percentage of the output of the Station that is equal to its ownership interest, and will also specify their respective rights, duties and obligations." This is what's known legally as an "agreement to agree" and it's completely unenforceable.

Wait a minute! Exhibit A has not actually been signed by SME, so it's not even an "agreement to agree." It's a statement that we hope to enter an "agreement to agree."

Look, taxpayers, we don't have an agreement with SME. We don't have an unenforceable agreement to agree with SME. But, maybe, if things work out, we'll get to negotiate an unenforceable agreement to agree in the future.

But don't worry, y'all, 'cause the "City and SME agree to negotiate in good faith to develop mutually-agreeable and definitive forms of all other agreements necessary in connection with the ownership and operation of the Station." Please accept my apologies for the sarcasm, but this really floors me. We've spent what? A million? Two million? And we don't have contracts?

Think about this for a minute. You're driving down the street and you see a house you like. You pull in the driveway, and greet the owner, "Howdy. I'd like to buy your house."

"Fine," he says.

"How much do you want?"

"Not sure," he replies.

"Does the furniture come with it?"

"Probably," he replies.

"I'll take it," you say. "How about I just start making payments today and we'll get together in a year or so and decide on a price, and what property I get."

"Great," he grins, "and don't worry. I'll negotiate with you in good faith when the time comes."

Would you do that? Of course not. Am I suggesting that the Trustees of SME have anything but the best intentions in dealing with us? Of course not. That's not the point. But you just can't do it all on the come, not with millions of taxpayer dollars at stake. Can you?

I have to move on. It's getting late. Next, I asked for a copy of the feasibility study referred to in the November 4, 2003, agenda report. Per Ms. Bourne: "This document is not in the City's records. The City Commission action was to make a capital contribution to SME to help pay for 17.58% of a study exploring the feasibility of developing additional generation facilities in Montana. Staff proposed participating in the study to enhance the City's positioning to respond to several different energy scenarios should they materialize. City staff was briefed on the results of this study. Perhaps you could contact Tim Gregori, General Manager at 406-294-9527 to request a copy of it from SME." A letter went out to Mr. Gregori today seeking a copy of it, among other information. I will keep you posted.

Then, finally, it just gets curiouser and curiouser. Last but not least, I requested the documents evidencing the City's joint venture with SME, or its ownership of SME. In response to this request, Ms. Bourne produced a number of documents such as the Water Service Agreement with SME, a Wholesale Power Purchase Contract, and various and sundry resolutions and other documents. According to Ms. Bourne, these "documents, along with the other documents submitted in this transmittal, demonstrate the joint venture with SME." Well, the documents demonstrate that we have some business relationships with SME, but I am guessing that SME itself would deny that all of its wholesale power purchasers are, by way of the purchase agreements, its partners.

Thus, the most significant question I had remains despite my expenditure of $34.50 in the public interest. Do we own a part of SME? Are we partners with SME? What was intended? What has happened?

This issue merits a post of its own and, alas, I am too tired to write it right now. For the moment, though, suffice it to say that either a) officials are using some very loose language to describe our relationships, b) no one really knows what our contractual relationships with SME will finally be, c) no one involved understands the differences between the various relationships, or d) the documents that demonstrate a legally consummated relationship have not been produced.

If the answer is any but d), folks, I'm a little nervous. We're spending millions.

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