HomeMy WebLinkAbout75-97 • •
RESOLUTION No. 75-97
A RESOLUTION OF THE CITY COUNCIL OF THE TOWN
OF LOS ALTOS HILLS APPROVING A JOINT POWERS
AGREEMENT WITH "ABAG POWER"FOR THE PURCHASE
OF ELECTRIC POWER FOR A MINIMUM OF ONE YEAR
WHEREAS, the Town of Los Altos Hills is currently purchasing electricity and related
transportation and distribution services from Pacific Gas and Electric Company (Utility)
under the jurisdiction of the California Public Utilities Commission(CPUC); and
WHEREAS, on May 6, 1997, the California Public Utilities Commission (CPUC) issued
Decision 97-05-040 authorizing customers of the Utility to acquire electric supply and
related services from sources other than PG&E on January 1, 1998; and
WHEREAS, the Town of Los Altos Hills is a member or cooperating member of the
Association of Bay Area Governments; and
WHEREAS, ABAG proposes the formation of a pooled purchasing program for the
acquisition of electric supply and related services (Electric Program); and
WHEREAS, ABAG further proposes that the Electric Program be implemented through a
"Joint Exercise°of Powers Agreement Creating the ABAG Publicly OWned Energy
Resources" (ABAG POWER) (attached as Exhibit A) formed by ABAG and other public
entities in the PG&E service territory in which such public entities commit to
participating in ABAG POWER for at least one (1)year; and
WHEREAS, a participant in the Electric.Program will acquire electric supply and related
services under an agreement between the participant and ABAG (Direct Access Electric
Aggregation Agreement) (attached as Exhibit B) which will be assigned from ABAG to
ABAG POWER upon the formation of ABAG POWER; and
WHEREAS, each participant in the Electric Program will be represented on the Board of
Directors of ABAG POWER by a director, or in his/her absence by an alternate,
appointed by the participant; and
WHEREAS, the Town of Los Altos Hills finds that it is in its best interest and the public
interest to join ABAG POWER and participate in ABAG's Electric Program.
NOW, THEREFORE BE IT RESOLVED, that the City Council of the Town of Los
Altos Hills hereby: (1) authorizes the Mayor to execute and deliver the "Joint Powers
Agreement creating the ABAG Publicly Owned Energy Resources", (2) authorizes the
Mayor to execute and deliver the Direct Access Electric Aggregation Agreement in
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substantially the form, or in conformance with the principles, set forth in Exhibit B, and
(3) designates the City Manager to the Board of Directors of ABAG.
PASSSED AND ADOPTED this 30th day of September , 1997.
Mayor
ATTE T:
City Clerk
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• • EXHIBIT A
JOINT POWERS AGREEMENT
creating
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ABAG POWER
TheP ublic entities listed in Appendix A(Members) entered into this Joint Powers Agreement
(Agreement) creating ABAG Publicly OWned Energy Resources (ABAG POWER). All
Members are public entities organized and operating under the laws of the State of California and
each is a public agency as defined in California Government Code Section 6500.
RECITALS
A. Government Code Sections 6500-6515, permitting two or more local public entities by
agreement to jointly exercise any power common to them, authorizes the Members to
enter into this Agreement.
B. Public entities consume energy in the form of natural gas and/or electricity and use
telecommunications services in the performance of their essential governmental
functions.
C. Federal and State agencies responsible for the regulation of the natural gas, electric and
telecommunications industries have determined that deregulation of these industries is in
the public interest.
D. Public entities have the opportunity to secure energy supplies and related services,
manage energy consumption, obtain telecommunications services, manage the use of
telecommunications services and determine conditions under which the private sector
accesses and uses, in a cooperative and coordinated manner, public resources and
infrastructure used in the delivery of such energy and services.
E. The Association of Bay Area Governments (ABAG), at its sole expense,has created and
implemented a natural gas aggregation to purchase natural gas and related services on
behalf of the program participants and has formulated, but not yet implemented, a
program to purchase electricity through direct access and procure related services on
behalf of public entities in the Pacific Gas & Electric Company's (PG&E) service area.
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F. The formation of ABAG POWER enables the Members to take advantage of the
opportunities described in paragraph D in such manner and at such time as the Members
may decide.
G. The governing board of each Member has determined that it is in the Member's best
interest and in the public interest that this Agreement be executed and that it is
participating as a Member of ABAG POWER.
AGREEMENT
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1. Formation of ABAG POWER. Pursuant to Chapter 5, Division 7, Title 1 of the
Government Code of the State of California(commencing with Section 6500) (as
amended from time to time, the JPA Law), the Members hereby create a separate joint
powers agency which is named ABAG POWER.
2. Parties to Agreement. Each Member certifies that it intends to, and does, contract with
every other Member which is a signatory to this Agreement and, in addition, with such
other Member as may later be added as Members under Section 16. Each Member also
certifies that the deletion of any Member from this Agreement does not affect this
Agreement nor each remaining Member's intent to contract with the other Members then
remaining.
3. Purpose. ABAG POWER will acquire, for use by its Members, energy including, but
not limited to, natural gas and electricity, and of telecommunications services, and such
other services and goods as may be necessary or convenient to optimize costs savings and
to manage the use or the supply of energy or telecommunications services.
4. Membership. The following entities, or types of entities, are eligible for membership in
ABAG POWER :
(a) ABAG,
(b) members of ABAG, and
(c) any other public entity so long as such public entity is a cooperating member of
ABAG at the time it joins ABAG POWER.
5. Limitation . Except as otherwise authorized or permitted by the JPA Law and for
purposes of, and to the extent required by Government Code Section 6509, ABAG
POWER is subject to the restrictions upon the manner of exercising the powers of the
Member specified in the Bylaws.
6. Powers. ABAG POWER is authorized, in its own name, to do all acts necessary to fulfill
the purposes of this Agreement referred to in Section 3 including, but not limited to, each
of the following:
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(a) Make and enter into contracts;
(b) Incur debts, liabilities and obligations; provided that no debt, liability or
obligation of ABAG POWER is a debt, liability or obligation of any Member
except as separately agreed to by a Member agreeing to be so obligated;
(c) Acquire, hold, construct, manage, maintain, sell or otherwise dispose of real and
personal property by appropriate means, excepting only eminent domain;
(d) Receive contributions and donations of property, funds, services and other forms
of assistance from any source;
(e) Sue and be sued in its own name;
(f) Employ agents and employees;
(g) Lease real or personal property as lessee and as lessor;
(h) Receive, collect, invest and disburse moneys; •
(i) Issue revenue bonds or other forms of indebtedness, as provided by law;
0) Carry out other duties as required to accomplish other responsibilities as set forth
in this Agreement;
(k) Assign, delegate or contract with a Member or third party to perform any of the
duties of the Board, including, but not limited to, acting as administrator for
ABAG POWER; and
(1) Exercise all other powers necessary and proper to carry out the provisions of this
Agreement.
These powers will be exercised in the manner provided by applicable law and as expressly set
forth in this Agreement.
7. Appointment of Administrating Member.
(a) ABAG is hereby appointed by the Members to execute the provisions of this
Agreement and implement programs undertaken by ABAG POWER. The
Members acknowledge that this designation may cause potential conflicts of
interest to arise and waive any liability on the part of ABAG arising out of any
such conflict of interest. ABAG may not be removed as the administrating
Member except by reason of its fraud, gross negligence or gross mismanagement
or by a vote of two-thirds (2/3) of the authorized directors of the Board.
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(b) ABAG POWER will compensate ABAG for services rendered.
8. Board of Directors.
(a) Directors and Alternates. The Board is comprised of one director and, in a
director's absence, an alternate director. Each Member will appoint one director
and one alternate. A director and/or alternate director may be, but is not required
to be, an elected official of the Member.
(b) Term. Directors serve a term of five (5)years unless removed earlier by the
appointing Member. Directors may serve any number of terms.
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(c) Compensation. Directors and alternate directors are not entitled to compensation.
The Board may authorize reimbursement of expenses incurred by directors or
alternate directors.
(d) Delegation of Powers. The Board is, pursuant to Section 9(b), required to-
delegate certain powers to specified committees and may delegate other powers to
committees but may not delegate the power to dismiss ABAG or amend the
Bylaws.
9. Committees. All directors are eligible for appointment to a committee.
(a) Executive Committee. The Board may create an Executive Committee as set
forth in the Bylaws.
(b) Program Committees.The Board hereby delegates the power to oversee
implementation of a program to a Program Committee as set forth in the Bylaws,
provided each such director represents a Member which is participating in the
Program.
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(c) Other Committees. The Board may create other committees as set forth in the
Bylaws.
10. Officers and Employees.
(a) The officers of ABAG POWER are the Chair, Vice-Chair, President, Chief
Financial Officer/Treasurer and Secretary.
(b) The Chair and Vice-Chair are directors elected or appointed by the Board at its
first meeting. The term of office for Chair and Vice-Chair is one year beginning
January 1. The President, Secretary and Chief Financial Officer/Treasurer serve
as set forth in the Bylaws. The duties of the officers are described in the Bylaws.
The Chair and Vice Chair assume their office upon election. The President, Chief
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Financial Officer/Treasurer and Secretary assume the duties of their offices upon
formation of ABAG POWER. If either the Chair or Vice-Chair ceases to be a
director, the resulting vacancy will be filled at the next meeting of the Board.
(c) The Chair and Vice-Chair are not entitled to compensation. The Board may
authorize reimbursement of expenses incurred by officers.
(d) The Board may create such other offices and appoint individuals to such offices as
it considers either necessary or convenient to carry out the purposes of this-
Agreement.
11. Limitation on Liability of Members for Debts and Obligations of ABAG POWER.
Pursuant to Government Code Section 6508.1, the debts, liabilities, and obligations of
ABAG POWER do not constitute debts, liabilities, or obligations of any party to this
Agreement. A Member may separately contract for or assume responsibility for specific
debts, liabilities, or obligations of ABAG POWER.
12. Fiscal Year. The first fiscal year of ABAG POWER is the period from the date of this
Agreement through December 31, 1998. Each subsequent fiscal year of ABAG G POWER
ends on December 31.
13. Budget. The Board may adopt, at its sole discretion, an annual or multi-year budget not
later than sixty (60) days before the beginning of a fiscal year.
14. Annual Audits and Audit Reports. The Chief Financial Officer/Treasurer will cause an
annual financial audit to be made by an independent certified public accountant with
respect to all ABAG POWER receipts, disbursements, other transactions and entries into
the books. A report of the financial audit will be filed as a public record with each
Member. The audit will be filed no later than required by State law. ABAG POWER
will pay the cost of the financial audit and charge the cost against the Members in the
same manner as other administrative costs.
15. Establishment and Administration of Funds. •
(a) ABAG POWER is responsible for the strict accountability of all funds and reports
of all receipts and disbursements. It will comply with every provision of law
relating to the establishment and administration of funds, particularly Section
6505 of the California Government Code.
(b) The funds will be accounted for on a full accrual basis.
(c) The Chief Financial Officer/Treasurer will receive, invest, and disburse funds
only in accordance with procedures established by the Board and in conformity
with applicable law. The Chief Financial Officer/Treasurer will procure a fidelity
bond.
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16. New Members. For the purpose of this section only, all Members admitted after January
1, 1999 are New Members.
(a) A public entity may be admitted as a New Member only upon a two-thirds (2/3)
vote of the Board and upon complying with all other requirements established by the
Board and the Bylaws.
(b) Each applicant for membership as a New Member must pay all fees and expenses,
if.any, set by the Board.
17. Withdrawal. Members may withdraw in accordance with conditions set forth in the
Bylaws provided that no Member may withdraw if such withdrawal would adversely
affect a bond or other indebtedness issued by ABAG POWER, except withdrawal under
such circumstances may be effected upon a [super-majority] vote of the Board.
18. Expulsion/Suspension. ABAG POWER may expel or suspend a Member by a two-thirds
(2/3) vote of the Board for a breach of this Agreement or the Bylaws determined by the
Board to be a material breach. The procedures for hearing and notice of expulsion of a
Member are provided in the Bylaws.
19. Termination and Distribution.
(a) This Agreement continues until terminated. However, it cannot be terminated
until such time as all principal of and interest on bonds and other forms of indebtedness
issued by ABAG POWER are paid in full. Thereafter, this Agreement may be terminated
by the written consent of two-thirds (2/3) of the Members; provided, however, that this
Agreement and ABAG POWER continue to exist after termination for the purpose of
disposing of all claims, distribution or assets and all other functions necessary to
conclude the obligations and affairs of ABAG POWER.
(b) After completion of ABAG POWER's purposes, any surplus money on deposit in
any fund or account of ABAG POWER will be returned as required by law. The Board is
vested with all powers of ABAG POWER for the purpose of concluding and dissolving
the business affairs of ABAG POWER.
20. Notices. Notice to each Member under this Agreement is sufficient if mailed to the
Member and separately to the Member's Director to their respective addresses on file with
ABAG POWER.
21. Prohibition Against Assignment. No Member may assign a right, claim, or interest it
may have under this Agreement. No creditor, assignee or third party beneficiary of a
Member has a right, claim or title to any part, share, interest, fund or asset of ABAG
POWER. However, nothing in this section prevents ABAG POWER from assigning any
interest or right it may have under this Agreement to a third party.
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22. Amendments. This Agreement may be amended by an affirmative vote of the governing
bodies of[three-fourths (3/4)] of the Members acting through their governing bodies. A
proposed amendment must be submitted to each Member at least thirty (30) days in
advance of the date when the Member considers it. An amendment is to be effective
immediately unless otherwise designated. Appendix A to the Agreement may be
amended to correctly list current Members without separate action by the Members or the
Board.
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23. Severability. If a portion,term, condition or provision of this Agreement is determined
by a court to be illegal or in conflict with a law of the State of California, or is otherwise
rendered unenforceable or ineffectual, the validity of the remaining portions, terms,
conditions and provisions is not affected.
24. Liability of ABAG POWER. Subject to limitations thereon contained in any trust
agreement or other documents pursuant to which financing of ABAG POWER are
implemented, funds of ABAG POWER may be used to defend, indemnify, and hold
harmless ABAG POWER, any Member, any Director or alternate, and any employee or
officer of ABAG POWER for their actions taken within the scope of their duties while
acting on behalf of ABAG POWER.
25. Governing Law. This Agreement will be governed by and construed in accordance with
the laws of the State of California.
26. Counterparts. This Agreement may be executed in several counterparts, each of which is
an original and all of which constitutes but one and the same instrument.
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27. Effective Date. This Agreement becomes effective and ABAG POWER exists as a
separate public entity when the sum of the electric usage for all accounts committed by
all Members under all Direct Access Electric Aggregation Agreements between the
Member and ABAG equals or exceeds three hundred seventy thousand (370,000) mWh
in a one year period.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day.and
year written below.
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Date: September 30, 1997 By: ,
Mayor /
APPROVED AS TO LEGAL FORM
-\,-------"'
Legal Counsel
Attest:
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• IBIT B
DIRECT ACCESS
ELECTRIC AGGREGATION AGREEMENT
BY AND BETWEEN THE
ASSOCIATION OF BAY AREA GOVERNMENTS
AND
PUBLIC AGENCY
WITHIN THE SERVICE TERRITORY OF
PACIFIC GAS & ELECTRIC CO.
DATED September 30 , 1997 S
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This Direct-Access Electric Aggregation Agreement, hereinafter "Agreement", is made
and entered into as of this 30 day of Sept. 1997, by and between the Association of Bay Area
Governments (ABAG), a California joint powers agency, and Los Altos Hills (Public
Agency), a California municipal corporation.
The parties hereby agree as follows:
1. Eligibility: Public Agency is a member or cooperating member of ABAG. ABAG will
provide directly, or at its option, will contract to provide for the purchase and
management of a direct access electric aggregation program (Electric Program) for
members and cooperating members of ABAG participating in said program
Participant(s).
2. Authorities: All parties understand and agree that the legal authority for the Program is
granted by and subject to the California Public Utilities Commission (CPUC), as initially
authorized by CPUC Decision No. 97-05-040 and as it may be modified and/or
augmented through subsequent CPUC decisions, orders, rules, regulations, tariffs.and
rulings of the CPUC administrative law judges (collectively, Decision).
2.1 Public Agency is a customer of Pacific Gas &Electric (Utility) under the
jurisdiction of the CPUC. Public Agency appoints ABAG as its exclusive agent
to coordinate its participation in the Electric Program, on behalf of Public Agency
for the accounts listed in Exhibit A (Accounts),which is attached hereto and
incorporated herein. Public Agency represents and warrants that any prior
agreement(s) for the purchase of electricity for the Accounts from a supplier other
than the Utility, which Public Agency may have executed, will be terminated
effective upon Commencement of Service as defined in Paragraph 31.
2.2 ABAG has reviewed the Decision and other materials developed by, or under the
auspices of the CPUC. ABAG believes that the transactions set forth, or
contemplated, in this Agreement will comply with CPUC requirements for direct
access by electric consumers set forth in the Decision and current guidelines.
• ABAG has, simultaneous with this Agreement, commenced the process of
creating an independent joint powers agency (ABAG POWER) to aggregate the
Accounts of Participants for the purpose of direct access.
3. Background: The CPUC requires that all Utility customers be eligible for direct access
by January 1, 1998. The regulatory requirements for customers to engage in direct access
and for Electric Services Providers (ESP)to offer direct access to customers are under
development as of June 25, 1997. In Paragraphs 4 and 5 ABAG has-listed all such
conditions of which ABAG is actually aware. ABAG has used its best good faith effort to
enumerate in said paragraph all such conditions which might ultimately be imposed on
direct access customers and ESP's. However,ABAG cannot represent or warrant that the
enumerated conditions represent all conditions currently contemplated by the CPUC or
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the affiliated committees, subcommittees or working groups responsible for developing
such conditions. Further,ABAG cannot represent or warrant that the enumerated
conditions will remain unchanged or that new conditions will not be imposed. Public .
Agency hereby agrees to hold ABAG harmless for any costs or direct or consequential
damages, incurred by Public Agency, or by anyone making a claim through Public
Agency.
4. CPUC Conditions to Public Agency's Participation in Direct Access: Public Agency will
take such action as may be necessary to meet all conditions imposed on Public Agency to
participate in direct access as a customer, including but not limited to: V
(a) submit such documents as may be required by the CPUC to the appropriate entity,
(b) provide ABAG with such information as may be required by the Direct Access
Service Request(DASR),
(c) conform this Agreement to all requirements imposed by the CPUC for written
contracts between direct access customers and ESP's, V
(d) install meters capable of providing hourly data and required data communications
capabilities (Hourly Meters)for each Account,
(e) pay, or caused to be paid, all stranded costs associated with the Utility meter
replaced under section(d) of this paragraph, and
(f) pay, or cause to be paid all outstanding balances for all Accounts.
Under current CPUC proceedings, metering requirements may be met by a customer(a)
requesting the Utility Distribution Company (UDC)to install Hourly Meters, (b)
installing Hourly Meters, or(c) causing Hourly Meters to be installed by third parties
(including the ESP). ABAG anticipates issuing a Request for Proposals to install Hourly
Meters for all, or some of the accounts previously identified to ABAG as accounts which
potential participants in the Electric Program wished to.aggregate. The choice of how
Public Agency will fulfill the metering requirement and whether all Participants must
make the same election for their respective Accounts will be mutually decided by ABAG
and Public.Agency at a later date based on (1)the probability of.installing Hourly Meters
for all Accounts by January 1, 1998, or the earliest possible date thereafter, (2)any
additional costs incurred to install Hourly Meters by such date, and (3) supply of Hourly
Meters.
5. CPUC Conditions Precedent to ABAG's Obligations: ABAG will take such action as "
may be necessary to meet all conditions imposed on ABAG to participate in direct access
as an ESP, including but not limited to:
(a) register with the CPUC,
(b) submit a DASR for each account,
(c) enter into a Basic ESP Service Agreement with the UDC,
(d) enter into the appropriate Billing Services Attachment to the Basic ESP.
Agreement, -
(e) .enter into the appropriate Metering Services Attachment to the Basic ESP
Agreement,
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(f) conform this Agreement to all requirements imposed by the CPUC for written
contracts between direct access customers and ESP's, and
(g) comply with ESP Credit Requirements.
The CPUC has not established ESP Credit Requirements. ABAG anticipates meeting
ESP Credit Requirements through the establishment of the Credit Reserve fund described
in Paragraph 19.
6. Electric Supply: Public Agency submitted to ABAG an expression of interest in
participating in the Electric Program by authorizing Utility to release specified historical
electric usage information to ABAG. After ABAG issued a Request for Proposals to
provide electric supply, it has entered into Memoranda of Understanding for the
provision of electric supply (MOU) with two (2) electric suppliers and anticipates an
MOU with a third supplier. ABAG anticipates soliciting proposals for additional electric
supply in Fall/Winter 1997. Public Agency acknowledges that in order to meet Public
Agency's electric needs ABAG will enter into contracts for specified electric supply
products (Contracted Supply) on behalf of Public Agency and will authorize purchases of
electric supply on the spot market(Spot Supply) and sales of excess Contracted Supply
on the spot market or to the supplier.
7. Services: ABAG has provided, or will provide, the following services for the benefit of
Public Agency:
7.1 Analyze and evaluate electric load profiles and/or electric time of use data,
transmission, distribution, billing and metering options, and electric supply
acquisition and aggregation strategies;
7.2 Negotiate prices and quantities of an electric supply, scheduling services, billing
services, and other services,products or equipment reasonably necessary for Public
Agency's participation in the Electric Program through processes which may include
but are not limited to invitations to bid, requests for proposal or competitive
negotiations.
8. Direct Access Implementation: For each Account for which ABAG and Public Agency
fulfills the requirements of Paragraphs 4 and 5 and for which the UDC authorizes the
commencement of direct access, ABAG will provide or cause to be provided an electric
supply and perform, or cause to be performed,the following services:
(a) scheduling;
(b) transmission;
(c) distribution;
(d) billing;
(e) Hourly Metering;
(1) general administrative, management, fiscal and consultation services necessary or
convenient for the Electric Program.
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ABAG is negotiating contracts for the provision of scheduling and billing services.
Transmission and distribution services will be provided to Public Agency through
regulated tariffs. Hourly Metering options and the method for selecting the means of
providing Hourly Metering is described in Paragraph 4.
9. Agency Relationship: Public Agency authorizes ABAG to act as its exclusive agent to
implement the Electric Program for the Accounts and does hereby constitute and appoint
an authorized officer or agent of ABAG to act on its behalf as its lawful agent for the
implementation of the Electric Program. This authorization will include the right to do
and perform all acts, with full power to execute all.documents requisite and necessary to
be done in all matters relating to the purchase, sale, scheduling, transmission,
distribution, metering and billing of electricity for the Electric Program, including
without limitation, the power to release Public Agency's historic and current electric
usage data to third party vendors and service suppliers.
10. Notification of Changes in Accounts: Public Agency will notify ABAG of changes in
Public Agency's facilities or operations, which are reasonably expected to increase or
decrease the consumption of electricity by more than ten percent (10%) as compared to
historical levels. Public Agency may add accounts to Exhibit A upon prior written notice
to ABAG and the submission of the appropriate form required by the CPUC or the
Utility. Public Agency may delete accounts from Exhibit A only upon written consent of
ABAG, which consent will not be unreasonably withheld, except that Public Agency may
delete accounts without ABAG's consent if Public Agency abandons the facility or
transfers the facility to another entity.
11. Rate Schedule: As soon as practicable after ABAG has fixed the costs of the Contracted
Supply, scheduling, transmission, distribution, billing, and, if applicable, Hourly
Metering services, ABAG will establish up to ten(10) rates, each expressed as
Sx.xx/kWh and will allocate each Account to a rate (Rate Schedule). In addition to the
costs identified in the preceding sentence, the Rate Schedule will include an estimated
cost for Spot Supply plus ABAG's fees for services rendered under this Agreement.
12. Invoiced Amounts: ABAG will invoice Public Agency, and Public Agency will pay,
monthly in advance an amount based on ABAG's estimate of Public Agency's anticipated
usage of electricity based on the Rate Schedule for each Account (Invoiced Amounts).
13. Contingency Reserve: Based on the size of the aggregation, ABAG will establish a
prudent Contingency Reserve for the purpose of paying contingent transmission and/or
distribution charges (e.g. imbalance charges and congestion management charges)
(Contingent Charges)plus an amount to cover ABAG's prudent cash flow requirements
based on ABAG's reasonable estimates of late or delinquent payments from Participants.
Public Agency will pay a portion of the Contingency Reserve in a ratio in which the
numerator is the total estimated usage for all its Accounts and the denominator is the total
estimated usage for all accounts in the aggregation(Contingency Reserve Surcharge).
The timing of the Contingency Reserve Surcharge payment(s) (e.g. up front lump sum or
staggered even or uneven monthly amounts) will be determined by ABAG.
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14. Credit Reserve: Based on the size of the aggregation, ABAG will establish a Credit
Reserve for the purpose of meeting CPUC established credit requirements for ABAG as
an ESP. Public Agency will pay a portion of the Credit Reserve in a ratio in which the
numerator is the total estimated usage for all its Accounts and the denominator is the total
estimated usage for all accounts in the aggregation(Credit Reserve Surcharge). The
timing of the Credit Reserve Surcharge payment(s) (e.g. up front lump sum or staggered
even or uneven monthly amounts)will be determined by ABAG.
15. Invoices/Actual Charges: For each Account, ABAG will include in each monthly
invoice Public Agency the meter cycle, actual usage during the meter cycle, and fees for.
actual electricity consumed based on the Rate Schedule plus an allocated portion of
Contingent Charges incurred, if any, plus any applicable late payment charges (Actual
Charges). The invoice will also identify the prior balance, any payments since the
previous invoice, cumulative Invoiced Amounts, cumulative Actual Charges,and credit
balances as calculated pursuant to Paragraph 17. Contingency Reserve Surcharges and
Credit Reserve Surcharges will either be separately invoiced or included in one invoice
based on ABAG's decision regarding thetiming of such surcharges and its agreement
with the billing agent.
16. Payment: Invoices will be directed to and payment is to be made by Public Agency
directly to the escrow account designated pursuant to Paragraph 21 of this Agreement.
Payment of the Invoiced Amount is due immediately upon receipt of the invoice. Late
payment charges at the rate of one and a half percent (1.5%)per month calculated daily
on the outstanding balance will be imposed commencing on the thirty-first (31st) day
after the mailing date of the invoice. Late payment charges may, at ABAG's sole
discretion, be debited against Public Agency's Credit Account as defined in Paragraph 17.
17. Credit Account: For each invoice, ABAG will calculate (a)the difference between the
Invoiced Amount and the Actual Charges for the meter cycle, and,(b)the difference
between the cumulative total of the Invoiced Amounts and the cumulative total of Actual
Charges (Credit Account). Public Agency recognizes that the Credit Account is a
calculation of payments, credits, debits and charges made pursuant to this Agreement and
that ABAG will not be required to establish actual separate fund accounts with monies on
behalf of, or in the name of Public Agency. Unless the parties otherwise agree, ABAG
will refund to Public Agency an amount equal to the Credit Account plus a portion of
interest earned on all Credit Accounts in the Electric Program, said portion to be
determined by the Electric Program Committee of ABAG POWER, within ninety (90)
calendar days after termination or cancellation of this Agreement.
18. Contingency Reserve Fund: Public Agency acknowledges that during the term of this
Agreement ABAG has the right to use,monies in the Contingency Reserve Fund to pay
Actual Charges incurred by Participants in the Electric Program,as such Actual Charges
become due. ABAG will deposit into the Contingency Reserve Fund any Invoiced
Amount payment, or portion thereof, which would, absent draw on the Contingency
Reserve Fund described in the preceding sentence, have been applied towards payment of
the Actual Charges described in the preceding sentence. Within the Contingency Reserve
Fund, ABAG will maintain a separate accounting of Public Agency's cumulative
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Contingency Reserve Surcharge payments, less any draws on the Contingency Reserve
Fund to pay any Actual Charges incurred by Public Agency,plus any Invoiced
Amount(s), or portion thereof, made by Public Agency and deposited into the
Contingency Reserve Fund as provided for in this Paragraph(Contingency Reserve Fund
Credit). Unless the parties otherwise agree, ABAG will refund to Public Agency an
amount equal to the Contingency Reserve Fund Credit plus a portion of interest earned on
the Contingency Reserve Fund, said portion to be determined by the Electric Program
Committee of ABAG POWER, within ninety (90) calendar days after termination or
cancellation of this Agreement.
19. Credit Reserve Fund: ABAG does not anticipate any draws on the Credit Reserve Fund.
Unless the parties otherwise agree, ABAG will refund to Public Agency its cumulative
Credit Reserve Surcharge payments plus a portion of interest earned on the Contingency
Reserve Fund, said portion to be determined by the Electric Program Committee of
ABAG POWER, within ninety (90) calendar days after termination of this Agreement or
the lifting of the requirement to maintain such a fund, whichever is earlier.
20. Late Charges: In the event Public Agency fails to make timely payment, consistent with
the terms employed by ABAG, in addition to any other remedy it may have hereunder
and notwithstanding the existence of any late payment penalty, ABAG may declare •
Public Agency to be in default and terminate the agreement. ABAG is further authorized
to invoice Public Agency for reasonable charges associated with demands for payment on.
late accounts as well as reasonable charges associated with suspension and resumption of
service hereunder.
21. Payment of Actual Charges: Subject to the terms and conditions of this Agreement,
ABAG agrees to deposit all Invoiced Amount payment and pay Actual Charges as
follows:
21.1 An escrow or lock box account for the purposes of receiving Invoiced Amount
payments by Participants and paying Actual Charges will be established by
ABAG.
21.2 The instructions for this escrow or lock box account have been approved by
ABAG, and will include a list of the authorized payees.
21.3 Only ABAG may authorize release of funds from the escrow or lock box account,
and such will only be to those payees identified in the escrow instructions and
only for Actual Charges.
22. Disputes Regarding Actual Charges: Any disputes between the parties regarding the
amount of any Actual Charges will be resolved pursuant to Section H of Exhibit B to this
Agreement and the Credit Account, as defined in Paragraph 9.3 will be adjusted as soon
as practicable to reflect the resolution of the dispute.
23. Cancellation:
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23.1 Cancellation by Public Agency: Commencing no earlier than one (1) full year
from the Commencement Date, Public Agency may only withdraw or cancel this
Agreement consistent with the rules and regulations promulgated by the CPUC
and in a manner which releases ABAG from all responsibility and liability related
to the subject matter of the Agreement. Public Agency may cancel the contract
by giving ABAG sixty (60) days prior written notice its intent to terminate
effective December 31 of that current year..
23.2 Cancellation by ABAG: Actions by the utilities and/or CPUC to develop rules
which are in conflict with sound business practices, or impose unnecessary risk on
eitherparty to this Agreement, or substantially prevent ABAG from performing
its functions under this Agreement may result in the cancellation of this
Agreement by ABAG. ABAG will give Public Agency written notice ninety (90)
days prior to such cancellation and both parties will work diligently to minimize
the negative effects on ABAG and the Public Agency of such cancellation.
24. Power Purchasing Pool Committee: Jeff Peterson (Public
Agency Representative), will be the Public Agency's representative to the Electric
Program Committee of the Board of Directors of ABAG POWER. The Electric Program
Committee will provide policy direction for the Electric Program. The Committee's
powers will include admission of new Participants and the extension of any contracts for
the purchase of electric supply and/or related services under rules and procedures adopted
by the Committee.
25. Approvals: The Public Agency Representative may grant any approval, or give any
direction required by this Agreement, in writing or orally. Written approvals or
directions may be transmitted physically, by facsimile or electronically. Oral approvals
will be confirmed in writing by either party.
26. Attorneys' Fees: In the event either party invokes its right to arbitration under Section H
of Exhibit B due to an alleged breach of this Agreement, the prevailing party will be
entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator.
27. Ownership of Files, Reports, Photographs, and Related Documents: Upon termination
of the Agreement, any and all files, reports,photographs,plans, specifications, drawings,
data, maps, models and related documents respecting in any way the subject matter of
this Agreement, whether prepared by ABAG, the Public Agency or third parties and in
whatever media they are stored will remain or will become the property of the Public
Agency and the Public Agency will acquire title to, and copyright ownership of, all such
documents. The Public Agency hereby grants to ABAG an irrevocable license to retain
a copy of all records covered by this section for ABAG's files.
28. Indemnity: Public Agency will indemnify and hold harmless ABAG and its directors, its
member agencies, its agents and its employees from and against all claims, damages,
losses and expenses including attorney's fees, arising out of or resulting from the
performance or non-performance of the services required by this Agreement, unless such
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is caused by fraud, gross negligence or intentional misconduct of ABAG, its directors, its
member agencies, its agents or its employees.
29. Assignment/Security Arrangements: Public Agency hereby acknowledges that ABAG
will assign all its rights and obligations under this Agreement, except the rights of ABAG
and its directors, its member agencies, its agents and its employees to indemnity under
Paragraph 28, to ABAG POWER upon the formation of ABAG POWER. Nothing in this
Agreement impairs ABAG POWER's right to have ABAG perform some or all of the
obligations pursuant to a separate Agreement .
30. Notices: The following addresses for the giving of notices and invoices will be:
Public Agency Notices
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Name: Jeff Peterson, City Manager
Address: 26379 Fremont Road
los Altos Hills, Ca. 94022
Telephone No.: 650-941-7222
Facsimile No.: 650-941-3160
Email:
Attn.:
Public Agency Invoicing Address
Name: Carol Ferrell, Finance Director
Address: 26379 Fremont Road
Los Altos Hills, Ca. 94022
Telephone No.: 650-941-7222
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Facsimile No.: 650-941-3160
Email:
Attn.:
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ABAG Notices
ABAG
P. O. Box 2050
Oakland, CA 94604-2050
Patricia Spangler, Assistant to the Executive Director
Telephone No:510-464-7900
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Facsimile No: 510-464-7970
Email:PatriciaS@abag.ca.gov
31. Commencement Date and Term: This Agreement is effective immediately upon
execution and delivery by both parties and the execution and delivery of counterparts of
this Agreement by other Participants with accounts which when combined with the
Accounts totals an estimated three hundred seventy thousand (370,000) mWh in a one (1)
year period. The Commencement Date for Public Agency is the latest date on which any
one of its Accounts is placed in direct access status by the UDC. This Agreement
terminates one (1) full year after the latest Commencement Date for any Participant.
32. Severability: If any provision of this Agreement or the application of any such provision
will be held by a court of competent jurisdiction to be invalid, void, or unenforceable to
any extent, the remaining provisions of this Agreement and the application thereof will
remain in full force and effect and will not be affected, impaired, or invalidated.
33. Captions: The captions appearing in this Agreement are inserted as a matter of
convenience and in no way define or limit the provisions of this Agreement.
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34. Other Contract Provisions: This Agreement will be subject to the other standard
provisions set forth in the attached Exhibit B, which is incorporated by this reference.
IN WITNESS WHEREOF, the parties have hereunto set their hands effective the date and year
first above written.
ASSOCIATION OF BAY AREA GOVERNMENTS
�
Date: !, '"30
Eugene LeoyExecutive Directg.r
Approved as to legal form and content:
By: Date:• , �/5-)Kenneth K egal Counsel
PUBLIC AGENCY
Date: September 30, 1997
Mayor
Approved as to legal form and content:
By: �.- Date: September 30, 1997
Account N ber
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Exhibit A
LIST OF ACCOUNTS
Please list each account separately, using additional copies of this Exhibit as necessary. Please
number all listed accounts sequentially.
No. PG&E Account Number Service Address City _
PVI/(a2 '//50/-5 2079 Fremont / ! 4'6 f/fas IV'/15
Ji
z PVV 62 4'/10/-2
Ta V7 4/150/- Z Hanle Ove-/c5/. /V chv/czs
TYI/ 78 W002:5 5 El /'1 ?ile o/ ki/tmebcdoA
S vrVV�7 V oi- fl Hove/fdvhi//
on-J-4 27'/00 ,gur-65/n7
7 VV P71000/./ .str' 4,
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This is page / of/pages. Attach additional pages as necessary.
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EXHIBIT B
STANDARD CONTRACT PROVISIONS
A. Time of Essence. Time is of the essence in this Agreement.
B. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same
or a different provision of this Agreement.
C. Controlling Law. This Agreement and all matters relating to it shall be governed by the laws of
the State of California.
D. Binding on Successors,Etc. This Agreement shall be binding upon the successors,assigns, or
transferees of ABAG or Public Agency as the case may be This provision shall not be construed
as an authorization to assign,transfer, hypothecate, or pledge this Agreement other than as
provided above.
E. Records/Audit. ABAG shall keep complete and accurate books and records of all financial
aspects of its relationship with Public Agency in accordance with generally-accepted accounting
principles ABAG shall permit authorized representatives of Public Agency and/or any of Public
Agency's governmental grantors to inspect, copy, and audit all data and records of ABAG relating
to its performance of services under this Agreement.ABAG shall maintain all such data and
records intact for a period of three(3)years after the date that services are completed hereunder
or this Agreement is otherwise terminated.
F. Prohibited Interest. ABAG's officers, employees or agents shall neither solicit nor accept
gratuities, favors or anything of monetary value from contractors,potential contractors, or parties
to subcontracts.
G. Insurance Requirements.
(1) ABAG shall, at its own expense, obtain and maintain in effect at all times during the life
of this Agreement the following insurance:
(a) Workers' compensation insurance as required by law.
(b) Comprehensive general liability insurance coverage of One
Million Dollars($1,000,000) in the aggregate for products and/or
completed operations and One Million Dollars($1,000,000) per
occurrence for automobiles.
(c) Professional liability insurance with minimum liability limits of
Two Million Dollars($2,000,000) in the aggregate.
(2) All ABAG's insurance policies shall contain an endorsement providing that written notice
shall be given to Public Agency at least thirty(30)days prior to termination, cancellation,
or reduction of coverage in the policy or policies, and all policies shall be carried by an
insurance company or companies acceptable to Public Agency.
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(3) In addition, each policy or policies of insurance described in subparagraph (2)above will
contain an endorsement providing for inclusion of Public Agency and its directors,
officers, agents, and employees as additional insureds with respect to the work or
operations in connection with this Agreement and providing that such insurance is
primary insurance and that no insurance of Public Agency will be called upon to
contribute to a loss.
(4) Promptly upon execution of this Agreement, ABAG will deliver to Public Agency
certificates of insurance evidencing the above insurance coverages. Such certificates will
make reference to all provisions or endorsements required herein and will be signed on
behalf of the insurer by an authorized representative thereof ABAG agrees that at any
time upon written request by Public Agency to make available copies of such policies
certified by an authorized representative of the insured.
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(5) The foregoing requirements as to types and limits of insurance coverage to be maintained
by ABAG and approval of policies by Public Agency are not intended to, and will not, in
any manner limit or qualify the liabilities and obligations otherwise assumed by ABAG
pursuant to this Agreement, including, but not limited to, liability assumed pursuant to
ABAG's insurance policies under Subsections(1)(b)of this section.
(6) ABAG will require all subcontractors to comply with the insurance requirements
described in Section G(1)(a)-(c), inclusive.
H. Arbitration. Any dispute between ABAG and the Public Agency regarding the interpretation,
effects, alleged breach or powers and duties arising out of this Agreement will be submitted to
binding arbitration. The arbitrator will be selected by agreement between the parties by lot from
a list of up to six(6)arbitrators with each party submitting up to three(3)arbitrators.
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