from the Circuit Court of Montgomery County. No. 17-CH-19
Honorable Amanda S. Ade-Harlow, Judge, presiding.
Attorney for Appellant Thomas G. DeVore, DeVore Law Offices,
Of Counsel to Silver Lake Group Ltd.
Attorney for Appellee S. Jeff Funk, Miller, Tracy, Braun,
Funk & Miller, Ltd.
JUSTICE CATES delivered the judgment of the court, with
opinion Presiding Justice Overstreet and Justice Moore
concurred in the judgment and opinion.
HONORABLE JUDY L. CATES, J.
1 Scott Kampmann filed a complaint for declaratory judgment
against the Board of Education (Board) of the Hillsboro
Community School District No. 3 (District) alleging the Board
exceeded its statutory authority in entering into an energy
services agreement and four change orders with Ameresco,
Inc., related to construction projects on District property.
The circuit court dismissed the complaint, finding that
Kampmann's suit was barred by the doctrine of
laches. Kampmann appeals, and we affirm.
3 During the spring of 2013, the Board sought proposals for
energy and operational cost savings measures for several
District facilities. On April 25, 2013, the Board submitted
these proposals for publication to the Capital Development
Board Procurement Bulletin. Three energy services companies,
M360, GRP Mechanical, and Ameresco, submitted proposals to
the Board. Ameresco's proposal included $7, 445, 769 of
proposed work for Hillsboro High School, Hillsboro Junior
High School, Beckemeyer Elementary School, and Coffeen
4 On June 25, 2013, the Board's building and grounds
committee (Committee) interviewed representatives of the
three companies that had submitted proposals. On July 9,
2013, the Committee met again to discuss the merits of the
proposals that had been submitted. As a result of their
discussions, the Committee held a public hearing and voted to
recommend that the Board pass a resolution authorizing a
letter of intent to Ameresco for the upcoming project.
5 During a regularly scheduled meeting of the Board held
later that same day, the Board considered the Committee's
recommendation. The July 9, 2013, meeting was open to the
public, and the agenda for that meeting indicated that one of
the items to be discussed was the "Letter of Intent for
Performance Contracting." The minutes from the meeting
indicate that the District superintendent reported the
Committee's recommendation that the Board issue a letter
of intent to Ameresco for two projects. Those projects
included bathroom renovations and roof work to the Hillsboro
Junior High School, which had previously been approved by the
Board for fiscal year 2014. The District superintendent
concurred in the Committee's recommendation. After due
consideration, the Board voted to approve a resolution
authorizing that a letter of intent for the two projects at
Hillsboro Junior High School be issued to Ameresco. On July
10, 2013, the superintendent issued the letter of intent to
Ameresco on behalf of the District.
6 On September 17, 2013, during a regularly scheduled public
meeting, the Board considered and approved the energy
services agreement (Agreement) with Ameresco. Prior to that
meeting, written notice of the Board's intention to enter
into this Agreement had been posted in the public agenda,
available to the community at large. In accordance with the
Board's approval, the District entered into the Agreement
with Ameresco on September 17, 2013. The next day, the
District issued a notice to proceed to Ameresco. The scope of
services encompassed within the Agreement included the
renovation of the bathrooms and a roof sealer for the
Hillsboro Junior High School for a price of $170, 982.
7 On March 14, 2014, the Board provided written notice of a
public hearing to be conducted on April 8, 2014, regarding
the District's proposal to sell bonds in the amount of
$5, 395, 000 to finance future work to be performed by
Ameresco. On April 8, 2014, the Board conducted the open
hearing to receive public comments on the sale of the bonds.
No public comments or questions were raised at the meeting.
On May 13, 2014, during the following regularly scheduled
meeting, the Board voted to pass a resolution to sell $5,
395, 000 in bonds to fund the Ameresco projects. The District
issued the approved bonds on June 9, 2014.
8 Meanwhile, between April 1, 2014, and May 5, 2015, the
Board approved, and the District entered into, four change
orders to the Agreement with Ameresco, to wit: (1) on April
1, 2014, a change order in the amount of $108, 055; (2) on
May 13, 2014, a change order in the amount of $4, 502, 597;
(3) on July 24, 2014, a change order in the amount of $72,
932; and (4) on May 5, 2015, a change order in the amount of
$745, 747. The work contracted for and performed under the
Agreement and the change orders were all within the scope of
Ameresco's original proposal and totaled $5, 600, 313.
9 The Agreement and change orders stipulated that a total of
$7, 883, 627 in guaranteed energy and operational savings
would be realized over a 20-year period by the District by
implementing the measures contained therein. The Board,
however, waived any audit, measurement, or recovery of all
but $335, 018 of the taxpayers' guaranteed savings. The
Board had no independent evaluation completed by an architect
or an engineer to assess the likelihood of the District
realizing the stipulated savings. The Board has never sought
to audit, measure, or recover any of the guaranteed taxpayer
savings that it did not waive. On December 15, 2015, with all