HomeMy WebLinkAboutMINUTES - 09091997 - SD4 CONTRA COSTA COUNTY
BOARD OF SUPERVISORS
Adopted this Resolution on September 9. 1997 , by the following vote:
AYES: Supervisors Rogers, Uilkema, Canciamilla and DeSaulnier
NOES: None
ABSENT: Supervisor Gerber
ABSTAIN: None RESOLUTION NO. 97/ 458
(Government Code § 25350)
In the Matter of Authorizing Contra Costa )
County's Participation in the Association of Bay)
Area Governments' (ABAG) Joint Exercise of )
Powers Agreement (JPA) Creating the ABAG )
Publicly OWned Energy Resources and ABAG's)
Electric Aggregation Program )
WHEREAS, Contra Costa County is currently a participant in the Association of Bay Area
Governments (ABAG)program for the pooled purchase of natural gas and related services
(P3 Program) since fiscal year 1996-97; and
WHEREAS, the P3 Program achieved savings of seven percent(7%); and
WHEREAS, on May 6, 1997, the California Public Utilities Commission (CPUC) issued
Decision 97-05-040 authorizing customers of, among others, Pacific Gas &Electric(PG&E)
to acquire electric supply and related services from sources other than PG&E; and
WHEREAS, Contra Costa County is currently an electric customer of PG&E; and
WHEREAS,Contra Costa County is a member of the Association of Bay Area Governments
(ABAG); 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, Contra Costa County can save on County buildings/facilities and street lights
an estimated four percent (4%) on electricity costs with ABAG POWER beginning January
1, 1998, which represents a savings of approximately $200,000 for the first-year contract;
and
RESOLUTION NO. 97/ 458
WHEREAS, Contra Costa County finds that it is in its best interest and the public interest SY �
to join.ABAG POWER and participate in ABAG's Electric Program.
NOW,THEREFORE,BE IT RESOLVED,that the Board of Supervisors of Contra Costa
County hereby authorizes the participation of Contra Costa County in the Joint Powers
Agreement creating the ABAG Publicly Owned Energy Resources (ABAG POWER) to
undertake a bulk purchasing program for electricity on behalf of Contra Costa County and
other ABAG members or cooperating members;
BE IT FURTHER RESOLVED, that the Director of General Services or his designee, is
authorized to enter into the Direct Access Electric Aggregating Agreement with ABAG, in
substantially the form set forth in Exhibit A appointing ABAG as the agent for Contra Costa
County in the purchase and management of a direct access electric aggregation program for
members and cooperating members of ABAG; and
FINALLY, BE IT ALSO RESOLVED, that the Director of General Services or his
designee is authorized to execute and deliver the Direct Access Electric Aggregation
Agreement in substantially the form or in conformance with the principles set forth in Exhibit
B on behalf of Contra Costa County, and the Deputy General Services Director is appointed
the County's representative to the Board of Directors of ABAG with alternates designated
by the Director of General Services,under the Bylaws of ABAG POWER set forth in Exhibit
C.
Kathy Brown, Deputy Director, General Services Department, is APPOINTED the
representative.
4
i
t
I=certify that this 188 traeand correct copy,
an action taken and entered on the minutes of th,.
Board of Su �s rs on A deteho iq _
ATTESTED: I �(
PHIL BATCHELOR,Clerk oft the Board
Of
(!uPerv1sO d County d inistrator
Deputy
i
Contact: Barton J. Gilbert(313-7100)
Orig. Dept.: General Services
cc: GSD-Administration
County Administrator
Auditor-Controller
County Counsel
RESOLUTION NO. 97/459
EXHIBIT A
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 11997
This Direct Access Electric Aggregation Agreement, hereinafter"Agreement", is made
and entered into as of this—day of 199_,by and between the Association of Bay Area
Governments(ABAG), a California joint powers agency, and (Public
Agency), a California
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
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. Back round: The CPUC requires that all Utility customers be eligible for direct
access by January I, 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 23, 1997. In Paragraphs_ and — 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 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 Acess: 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:
(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,
(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
(0 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 (I)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,
(0 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 _.
t
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 Meterin-;
(f) general administrative, management, fiscal and consultation services necessary or
convenient for the Electric Program.
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 _
9. A�enev 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 tite 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 niay 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.
I l. Rare 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_rates,each expressed as Sx.xx/kWh and
will allocate each Account to a rate(Rate Scliedule). 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. Contin,_,encv 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 now 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.
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
stam,ered even or uneven monthly amounts) will be determined by ABAG.
15. Invoices/Actual Charzes: 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
V'
Charges incurred, if any, plus any applicable late payment charges(Actual Charges). The
invoice will also identify the priorbalance,any payments since the previous invoice,
cumulative Invoiced Amounts cumulative Actual Charges, and credit balances as
calculated pursuant to Paragraph Contingency Reserve Surcharges and Credit
Reserve Surcharges will either be separately invoiced or included in one invoice based
on ABAG's decision regarding the timing of such surcharges and its agreement with the
billinc, agent.
16. Pavment: Invoices will be directed to and payment is to be made by Public Agency
directly to the escrow account designated pursuant to Paragraph _of this Agreement.
Pavment 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. Credit Account: For each invoice, ABAG will calculate (a) the difference
between the Invoiced Amount and the Actual Chanes 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. Contingencv 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 Prooram 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 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 Continency 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 tlNe
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. Pavntent 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
folloxvs:
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:
23.1 Cancellation by Public Agencv: Commencing no earlier than one (I) 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 tlle 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
Oil either party to this Agreement, or substantially prevent ABAG from
performing its functions under this Agreement may result in the cancellation of
this A-reentent 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.
t
, f
24. Power Purchasing Pool Committee: (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. Attornevs' Fees In the event either party invokes its right to arbitration under Section H
of Exhibit B due to all 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
is caused by fraud, gross negligence or intentional misconduct of ABAG, its directors, its
member agencies, its agents or its employees.
29. Assi;nment/Security Arranlzements: 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 _, to ABAG POWER upon the formation of ABAG POWER.
Nothing in this A-reement 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 invoicess will be:
Public A;encYNotices
Name:
Address:
Telephone No.:
Facsimile No.:
Email:
Attn.:
Public A,-,ency lnvoicing Address
Name.-
Address:
ame:Address:
Telephone No.:
Facsimile No.:
Email:-
Attn.:
ABAG Notices
ABAG
P. O. Box 2050
Oakland, CA 94604-2050
Patricia Spangler, Assistant to the ExecUtive Director
Telephone No: 510-464-7900
Facsimile No: 510-464-7970
Ema1I:PatriciaS@abag.ca.gov
30. 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 m W 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.
31. Severabilitv: 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.
32. 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.
33. 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.
By: Date:
Eugene Y. Leong, Executive Director
Approved as to legal form and content:
By: Date:
Kenneth K. Moy. Legal Counsel
PUBLIC AGENCY
By: Date:
Approved as to legal form and content:
By: Date:
Account Number
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 bindin; 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 oilier
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 (51,000,000) 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 ag[regate.
(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.
(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.
(5)_ Tile 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(l)(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.
JOINT POWERS AGREEMENT
creating
ABAG POWER
The public 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.
1 ABAG POWER JPA
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
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.
5
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:
2 ABAG POWER JPA
r.
(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;
(j) 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.
3 ABAG POWER JPA
}
(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.
(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.
(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
4 ABAG POWER JPA
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 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.
.4 (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.
5 ABAG POWER JPA
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)v6te of the Board for a breach of this Agreement or the Bylaws determined by the
Boatd 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 Auainst 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.
6 ABAG POWER JPA
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.
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.
4
7 ABAG POWER JPA
27. Effective Date. This Agreement becomes effective and ABAG POWER exists as a
separate public entity upon the delivery to ABAG of an original counterpart of this
Agreement validly executed by, or on behalf of, the Member.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year written below.
Date: By:
APPROVED AS TO LEGAL FORM
Legal Counsel
Attest:
I:\stafnjpa3.doc
8 ABAG POWER JPA
r� EXHIBIT C
BYLAWS OF
ABAG POWER
ARTICLE 1 --NAME
The name of this public entity is ABAG Publicly Owned Energy Resources(ABAG
POWER)
ARTICLE 2—OFFICES
2,1 Principal Office. The principal office for the transaction of the business of
ABAG POWER-is located at 101 - 8th Street, Oakland, County of Alameda, California.
The Board of Directors(Board)may change the principal office from one location to
another. Any change of this location will be noted by the Secretary on these Bylaws
opposite this section,or this section may be amended to state the new location.
2.2 Other Offices. The Board may at any time establish branch or subordinate
offices at any place or places.
ARTICLE 3—LIMITATION ON AUTHORITY
ABAG POWER's exercise of its power under the ABAG POWER Joint Powers
Agreement(JPA)and these Bylaws is restricted to the extent required under California
Government Code Section 6509.'The is hereby designated pursuant to
said Section 6509. This designation may be changed by a two-thirds(2J3)vote of the
Board provided that the designated agency must be a city or county in California.
ARTICLE 4--MEMBER ENTITIES
In addition to the original contracting parties(as the term is used in California Government
Code Section 6502)to the JPA, any other public entity (as defined in California
Government Code Section 6500),which becomes a contracting party pursuant to the JPA
and these Bylaws, is a Member, Any contracting party which withdraws or is expelled
pursuant to these Bylaws ceases to be a Member.
4
f
ARTICLE 5 --DEBTS AND LIABILITIES
5.1. The debts, liabilities and obligations of ABAG POWER will not be the debts,
liabilities or obligations of any or all of the Members. However, nothing in this section or
the JPA :
5.1.1. prevents a Member or Members from agreeing, in a separate
agreement,to be jointly and/or severally liable,in whole or in part,for any debt,obligation
or liability of ABAG POWER, including but not limited to,any bond or other debt
instrument issued by ABAG POWER, or
5.1.2, impairs the ability of any Member to undertake the responsibility
described in subsection 5.1.1 of this section.
ARTICLE 6-- DIRECTORS
6.1. Powers.
6.1.1. General Powers. Subject to the provisions of these Bylaws and the
JPA, the business and affairs of ABAG POWER will be managed, and all powers will be
exercised,under the policy direction of the Board.
6.1.2. Specific Powers. Without prejudice to these general powers,the
Board also has the power to borrow money and incur indebtedness on behalf of ABAG
POWER and cause to be executed and delivered for ABAG POWER's purposes, in ABAG
POWER's name,promissory notes,bonds,deeds of trust,mortgages,pledges,
hypothecations,and other evidences of debt and securities and certificates of participation.
6.1.3. Pro ram Guidelines. The Board also has the power to establish
guidelines for the types of Programs to be'undertaken by ABAG POWER.
6.2. Directors and Alternates. Each Member will appoint a director,and may
appoint an alternate director to the Board. The director and/or the alternate may be an
elected official.
6.3. Vacancies.
6.3,1. Vacancies. Vacancies in directors'position will be filled as
provided in Section 6.2.
6.3.2. Events Causing Vacancy. A vacancy on the Board exists on the
occurrence of the following: (i) the death of any director; (ii) the removal, dismissal or
resignation of a director from the position he/she held with the Member at the time he/she
became a director; (iii)the declaration by resolution of the Board of a vacancy of the office
of a director who has been declared of unsound mind by an order of court or convicted of a
felony; or(iv) written notice to the Secretary from the appointing Member stating that the
2 ABAG POWER Bylaws
designation of the director or alternate has been revoked said revocation to be effective
upon receipt, unless the notice specifies a later time.
6.3.3. Resignations. No director may resign when ABAG POWER would
then be without at least three(3)directors in charge of its affairs.
6.3.4. Reduction or Increase in Number of Directors. At the beginning of a
fiscal year,the authorized number of directors may be reduced or increased by the deletion
or addition of a Member.
6.4. Meetings.The Chair or Vice-Chair of the Board, or any directors
by written request, may call a meeting of the Board.
6.5. Quorum. A forty percent(40%)of the sitting directors is a quorum for the
transaction of business. Except for acts requiring a supermajority under these Bylaws or
the JPA, every act or decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present is an act of the Board. A meeting at which
a quorum is initially present may continue to transact business,notwithstanding the
withdrawal of directors,if any action taken is approved by at least a majority of the
quorum for that meeting, or if a supermajority is required, by the supermajority of the
quorum for that meeting.
6.7. Rules of Order. The Board may adopt rules of order to govern the conduct and
procedure of Board meeting.
6.8. Minutes. The Board will keep or cause to be kept written minutes of its
proceedings,except executive sessions.
6.9. Fees and Compensation of Directors. Directors and members of committees
may receive such reimbursement of expenses as may be determined by resolution of the
Board to be just and reasonable.
6.10. Delegation of Powers. Except as otherwise proscribed in these Bylaws and the
JPA, the Board may delegate any of its powers.
ARTICLE 7-- BOARD COMMITTEES
7.1, Executive Committee, A standing committee comprised of the Chair, Vice
Chair and U directors or their alternates who are nominated by the Chair and
ratified by, and serving at the pleasure of, the Board is charged with exercising all powers
of the Board, except as otherwise specifically proscribed in these Bylaws or the JPA,
during times when the Board does not meet or is unable to convene a meeting.
ABAG POWER Bylaws
7.2. Ad Hoc Committees. Upon written notice after-the-fact,the Chair may
designate one(1)or more ad hoc advisory committees,each consisting of two(2)or more
directors or their alternates, to be ratified by and serve at the pleasure of the Board, and to
exercise such powers as may be delegated to it,except that no ad hoc committee may:
7.2.1, take any final action on matters which, under the JPA,requires
approval a majority or supermajority vote of Board;
7.2.2. amend or repeal Bylaws or adopt new Bylaws;
7.2.3. amend or repeal any resolution of the Board which by its express
terms is not so amendable or repealable;
7.2.4. appoint any other committees of the Board or the members of these
committees;or
7.2.5. approve any transaction(1)to which ABAG POWER is a party and
one or more directors have a material financial interest as defined in the California
Government Code;or(2)between ABAG POWER and one or more of its directors or
between ABAG POWER or any person in which one or more of its directors have a
material financial interest,
7.3. Meetings and Action of Committees. Meetings and action of Board and
Program committees will be governed by,and held and taken in accordance with,the
provisions of of these Bylaws, concerning meetings of directors,with such:
changes in the context of those Bylaws as are necessary to substitute the committee-and its
members for the Board and its members,except that the meetings of committees may be
called by the Board. Minutes will be kept of each meeting of any committee and will be
filed with ABAG POWER records.
ARTICLE 7A-- PROGRAMS AND PROGRAM COMMITTEES
7A.1. Programs. The Board has the power, upon majority vote, to establish
Programs within the purpose and power of ABAG POWER and to adopt general policy
guidelines for their implementation. By adopting these Bylaws, the Board hereby
establishes the following Programs:
7A.1.1. Natural Gas Aggregation. The program for the aggregation program
natural gas (PANG) previously established by ABAG is hereby approved and ABAG
POWER will assume all the duties, obligations, debts and liabilities incurred by ABAG in
connection with the PANG upon ABAG POWER's receipt of written acknowledgment of
such transfer from each participant in the PANG, vendor(s) and consultant(s), the
4 ABAG POWER Bylaws
r
California_Public Utilities Commission(CPUC), the natural gas supplier, PG&E and
ABAG.
7A.1.2. Electric Aggregation. ABAG POWER hereby approves an electric
program for direct access through aggregation(DATA).
7A.2.General Program Guidelines. The following guidelines apply to all programs
established by ABAG POWER:
7A.2.1. Upon a two-thirds(2/3)vote,the Board will allocate ABAG's
administrative fees,charges and costs among the Programs.
7A.2.2.The participants in a program will all collectively agree, in an
Agreement separate from the JPA and these BYlaws,to assume all obligations, debts and
liabilities incurred by ABAG POWER in connection with the formation and/or
implementation of such program. Such agreement may impose joint and several liability
on the participants for the program's debts,obligation and/or liabilities. However,nothing
in this section requires joint and several liability.
7A.3:Program Committees. There will be a program committee for each program.
A program committee comprised of directors [ ].
ARTICLE 8--OFFICERS
8.1. Officers. The officers of ABAG POWER are the Chair,Vice-Chair, President,
Secretary and Chief Financial Officer/Treasurer. The Chair and Vice-Chair(elected
officers)will be elected.All directors are eligible to serve as an elected officer. The
Executive Director of ABAG is the President of ABAG POWER,the of ABAG
is the Secretary of ABAG POWER,and the Director of Finance for ABAG is the Chief
Financial Officer/Treasurer of ABAG POWER. Any number of offices may be held by the
same person, except that neither the Secretary nor the Chief Financial Officer/Treasurer
may serve concurrently as the President.
8.2. Elected of Officers. At the first meeting of the Board, and as necessary
thereafter, nominations for the offices of Chair and Vice-Chair, will be made and seconded
by a director. If more than two (2) names are nominated for any one office, balloting
occurs until a nominee receives a majority of the votes cast; provided that after the first
ballot the nominee receiving the fewest votes will be dropped from the balloting. Each
elected officer serves a term ending on the next December 31. An elected officer may
succeed himself/herself and may serve any number of consecutive or non-consecutive
terms:
8.3. Removal of Officers. An elected officer may be removed, with or without
cause, by a majority vote of the Board aI a regular or special meeting.
5 ABAG POWER Bylaws
8.4. Vacancies. Any vacancy in any office because of death,resignation,removal,
disqualification,or any other cause will be filled for the balance of the vacated term in the
manner prescribed in these Bylaws for regular appointments to that office;provided,
however, that such vacancies may be filled at any regular or special meeting of the Board.
8.5. Resignation of Officers. In the absence of a contrary written agreement,any
officer may resign at any time by giving written notice to the President or Secretary. Any
resignation takes effect at the date of the receipt of that notice or at any later time specified
in that notice. Unless otherwise specified in that notice,the acceptance of the resignation
is not necessary to make it effective.
8.6. Responsibilities of Officers.
8.6.1. Chair of the Board. The Chair of the Board presides at meetings of the
Board and exercises and performs such other powers and duties as may be from time to
time assigned to him/her by the Board or prescribed by the Bylaws.
8.6.2 Vice-Chair of the Board. The Vice-Chair of the Board fulfills all the
duties of the Chair in his/her absence.
8.6.3. President. Subject to such supervisory powers as may be given by the
Board of Directors to the Chair of the Board,the President generally supervises, directs,
and controls the business and the employees of ABAG POWER. He or she has such other
powers and duties as may be prescribed by the Board or the Bylaws.
8.6.4. Secretary. The Secretary will:
(1) Book of Minutes. Keep or cause to be kept,at the principal
executive office or such other place as the Board may direct, a book of minutes of all
meetings and actions of directors and committees of ABAG POWER, with the time and
place of holding,whether regular or special, and, if special,how authorized, the notice
given,the names of those present at such meetings and the proceedings of such meetings.
(ii) Notices and Other Duties. Give, or cause to be given, notice of
all meetings of the Board and Committees of ABAG POWER required by the Bylaws to
be given. He or she has such other powers and perform such other duties as may be
prescribed by the Board.
8.6.5. Chief Financial Officer. The Chief Financial Officer perform as
follows:
(i) Books of Account. The Chief Financial Officer keeps and
maintains,or causes to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of ABAG POWER, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained
6 . ABAG POWER Bylaws
o
1
earnings, and other matters customarily included in financial statements. The books of
account will be open to inspection by any director at all reasonable times.
(ii) Deposit and Disbursement of Money and Valuables. The Chief
Financial Officer deposits all money and other valuables in the name and to the credit of
ABAG POWER with such depositories as may be designated by the Board;disburses the
funds of ABAG POWER as may be ordered by the Board; renders to the directors,
whenever they request it,an account of all of his/her transactions as Financial Officer and
of the financial condition of ABAG POWER; and has other powers and perform such other
duties as may be prescribed by the Board or the Bylaws.
(iii) Bond. If required by the Board,the Chief Financial Officer will
give ABAG POWER a bond in the amount and with the surety or sureties specified by the
Board for faithful performance of the duties of his/her office and for restoration to ABAG
POWER of all its books,papers,vouchers, money,and other property of every kind in
his/her possession or under his/her control on his/her death,resignation,retirement,or
removal from office.
8.7. Fees and Compensation. The officers may receive such reimbursement of
expenses as may be determined by resolution of the Board to be just and reasonable.
ARTICLE 9--MEMBER INDEMNITY
Each Member hereby agrees to indemnify and hold harmless all other Members to the
extent any liability is found or imposed against said Member pursuant to California
Government Code Section 895.2.
ARTICLE 10--OBLIGATIONS OF PROGRAM PARTICIPANTS
10.1. Release and Indemnification. Program participants will indemnify and save
ABAG POWER and ABAG, their respective members, directors, officers and employees
of each of the foregoing harmless from and against all claims, losses and damages,
including legal fees and expenses, arising out of
10.1.1. any bond or other debt instrument or evidence of indebtedness issued
by ABAG POWER to pay for any costs, fees or expenses incurred, or to be incurred, in
connection with the program,
10.1.2. any breach or default on the part of the participant in the performance
of any of its obligations under the program, and
10.1.3. any actor negligence of the participant or of any of its agents,
contractors, servants, employees or licensees with respect to the program, except for
liability arising out of the willful misconduct, gross negligence,or breach of a contractual
7 ABAG POWER. Bylaws
duty by ABAG POWER or ABAG,or their members or their officers, agents,employees,
successors or assigns.
10.2. Payment of Costs and Expenses. Program Participants are required to pay any
and all costs and expenses involved in or associated in any way with their particular
Program. This obligation survives termination of ABAG POWER.
ARTICLE 11 —ADMISSION,WITHDRAWAL,SUSPENSION AND EXPULSION
11.1. Conditions for Admission of a New Member. Each applicant for membership
in ABAG POWER will meet the following minimum qualifications:
11.1.1, such new Member must be a public entity in the State of California
and a member or cooperating member of ABAG;
11.1.2. adopt a-resolution approving entry into ABAG POWER,designating a
director, authorizing the execution of the JPA, and acknowledging these Bylaws;
11.1.3. approved for admission to ABAG POWER by a vote of at least two-
thirds(2/3)of the authorized directors of the Board;and
11.1.4. paid such fees,expenses and costs as may be set by the Board.
11.2. Conditions to Permitting Withdrawal of a Member. A Member may withdraw
provided•that the following conditions are satisfied:
11.2.1. such Member is not in default of any of its obligations to pay any costs
or fees assessed by the Board;
11.2.2. such withdrawal will not cause ABAG POWER to be in default or
breach of any agreement to which it is a party, or of any bond or other evidence of
indebtedness issued by ABAG POWER;
11.2.3. not later than one hundred and eighty(180) days immediately
preceding the effective date of such withdrawal, such Member has provided written notice
to ABAG POWER of its intent to withdraw;
11.2.4. such withdrawal is effective on July 1; and
11.2.5. at least two(2)directors will be authorized after such withdrawal. In
the event fewer than two(2)directors would be authorized, said Member may not
withdraw until all principal of and interest on any and all bonds and other evidences of
indebtedness issued by ABAG POWER have been paid in full.
Notice to withdraw is revocable only at the option of ABAG POWER.
11.3. Conditions to Permitting Suspension of a Member. ABAG POWER may
suspend a Member from ABAG POWER subject to the following conditions:
11.3.1. the Member is in default under the terms of the JPA, these Bylaws,
any contract executed by the Member in connection with any ABAG POWER program,
8 ABAG POWER Bylaws
any bond or other evidence of indebtedness for which the Member has agreed to assume
responsibility, in whole or in part;and
11.3.2. ABAG POWER has given written notice of the default described in
subsection 11.3.1,to the defaulting Member;and
11.3.3. not earlier than thirty(30)days after transmittal of the notice and not
later than the sixty(60)days immediately preceding the effective date of such suspension,
two-thirds (2/3) of the authorized directors votes to suspend said Member.
11.4. Conditions to Permitting Expulsion of a Member. ABAG POWER may expel
a Member from ABAG POWER subject to the following conditions:
11.4.1. the Member is in default under the terms of the JPA,these Bylaws,
any contract executed by the Member in connection with any ABAG POWER program,
any bond or other evidence of indebtedness for which the Member has agreed to assume
responsibility, in whole or in part;and
11.4.2. ABAG POWER has given written notice of the default described in
subsection 11.4.1.to the defaulting Member; and
11.4.3. not earlier than thirty(30)days after transmittal of the notice and not
later than the sixty(60)days immediately preceding the effective date of such expulsion,
two-thirds(2/3)of the authorized.directors votes to expel said Member.
ARTICLE 12—FEES
12.1. Membership in ABAG POWER. No fees may be assessed to join or,continue
membership in ABAG POWER.
12.2. Extraordinary Costs. In the event ABAG POWER incurs any extraordinary or
unanticipated costs, including,but not limited to, legal fees and/or litigation expenses,the
Members will be assessed a fee or fees on a pro-rata basis as determined by the Board
necessary to pay such extraordinary or unanticipated costs. This provision survives
termination of ABAG POWER and/or each Member's participation in it.
ARTICLE 13 --ADMINISTRATIVE AGENCY
ABAG is designated in the JPA as the administrative agency for ABAG POWER. As
such, ABAG will provide necessary administrative services for ABAGTOWER pursuant
to a service agreement.
9 ABAG POWER Bylaws
ARTICLE 14—PURCHASE OF INSURANCE
In conformance with the procedures and criteria developed by it,the Board may cause
ABAG POWER to purchase commercial insurance or reinsurance or terminate commercial
insurance or reinsurance upon a majority vote.
ARTICLE 15—EVENTS OF DEFAULT AND REMEDIES
15.L Events of Default Defined. The following are"events of default" under the
JPA and these Bylaws,and the terms "events of default" and "default" means,whenever
they are used in the JPA and these Bylaws,with respect to a Member,any one or more of
the following events:
15.1.1, failure by such Member to observe and perform any covenant,
condition or agreement on its part to be observed or performed under the JPA,to comply
with these Bylaws or to comply with a ABAG POWER program requirement(including
but not limited to any contract executed by the Member in connection with any program,
any bond or other evidence of indebtedness for which the Member has agreed to assume
responsibility, in whole or in part)other than as referred to in clause 15.1.2. of this Section,
for a period of thirty(30)days after written notice specifying such failure and requesting
that it be remedied has been given to such Member by ABAG POWER or the Secretary;
provided, however, if the failure stated in the notice cannot be corrected within the
applicable period, ABAG POWER,or the Secretary,as the case may be,will not
unreasonably withhold its consent to an extension of such time if corrective action is
instituted by the Member within the applicable period and diligently pursued until the
default is corrected. After such an extension,failure to diligently pursue or to achieve
corrective action is a separate"event of dealt" under this clause requiring notice but not
requiring that ABAG POWER consent to any extension.
15.1.2. non-payment of any fees assessed by the Board; or
15.1.3, the filing by such Member°of a case in bankruptcy,or the subjection of
any right or interest of such Member under the JPA or these Bylaws to any execution,
garnishment or attachment, or adjudication of such Member as a bankrupt, or assignment
by such Member for the benefit of creditors, or the entry by such Member into an
agreement of composition with creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Member in any proceedings instituted under the
provisions of the Federal Bankruptcy Code, as amended, or under any similar act which
may hereafter be enacted.
10 ABAG POWER Bylaws
15.2. Remedies on Default.
15.2.1. Whenever any event of default referred to in subsection 15.1.1.of this
Article have occurs and is continuing, it will be lawful for ABAG POWER to exercise any
and all remedies available pursuant to law or granted pursuant to the JPA and these
Bylaws.
15.2.2. In the event that ABAG POWER elects to expel any defaulting
Member, subject to the conditions described and in the manner provided in of these
Bylaws, the Member nevertheless agrees to pay ABAG POWER all costs, losses or
damages arising or occurring as a result of such default and termination,and administrative
and legal costs incurred in noticing the default and effecting the expulsion. No such
expulsion becomes effective,by operation of law or otherwise,unless and until ABAG
POWER has given written notice of such expulsion to the Member,no such expulsion will
be effected either by operation of law or acts of the parties hereto,except only in the
manner herein.expressly provided;and no such expulsion terminates the obligation-of the
expelled Member to pay any fees assessed prior to such expulsion.
15.3. No Remedy Exclusive. No remedy conferred herein upon or reserved to
ABAG POWER is intended to be exclusive and every such remedy is cumulative and is in
addition to every other remedy given under the JPA or these Bylaws,now or hereafter
existing at law or in equity. No delay or omission to exercise any right or power accruing
upon any default impairs any such right or power or will be construed to be a waiver
thereof,but any such right and power may be exercised from time to time and as often as
may be deemed expedient. In order to entitle ABAG POWER to exercise any remedy
reserved to it in these Bylaws, it is not necessary to give any notice, other than such notice
as may be required in these Bylaws or by law.
15.4. Agreement to Pay Attorneys' Fees and Expenses. In the event either ABAG
POWER or a Member should be in default under any of the provisions of these Bylaws
and the nondefaulting party should employ attorneys or incur other expenses for the
collection of moneys or the enforcement of performance or observance of any obligation or
agreement on the part of the defaulting party, the defaulting party agrees that it will on
demand therefor pay to the nondefaulting parry the reasonable fees of such attorneys and
such other expenses so incurred by the nondefaulting party.
15.5. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in the JPA and these Bylaws should be breached by either party and thereafter
S
waived by the other party,such waiver will be limited to the particular breach so waived
and will not be deemed to waive any other breach hereunder.
ABAG POWER Bylaws
f
ARTICLE 16—TERMINATION
16.1. Time of Termination. ABAG POWER may be terminated upon the written
consent of all of the Members if the effective termination date and such written consents
are delivered to ABAG POWER and the Secretary at least sixty(60)days prior to the
effective termination date provided that all principal of and interest on any and all bonds
and other evidences of indebtedness issued by ABAG POWER are paid in full.
16.2. Continuing Obligations. Ager the termination date,ABAG POWER will
continue to be obligated to pay,or cause to be paid any amounts due for winding up its
affairs,including but not limited to any litigation costs and/or extraordinary costs
associated with a financing transaction. After the effective termination date,each Member
has a continuing obligation to pay any fees assessed prior to the effective termination date.
16.3. Distribution of Assets. In the event any assets remain after winding up the
affairs of ABAG POWER,such sums will be distributed to the Association of Bay Area
Governments.
ARTICLE 17—AMENDMENTS
17.1. Amendment by Directors. Subject to the limitations set forth below,the Board
may adopt, amend or repeal Bylaws. Such power is subject to the following limitations:
17.1.1. The Board may not amend a Bylaw provision fixing the authorized
number of directors or the minimum and maximum number of directors.
17.1.2. If any provision of these Bylaws requires the vote of a larger
proportion of directors than a simple majority, such provision may not be altered,amended
or repealed except by vote of such larger number of directors.
17.1.3. The Board may not delete or amend Bylaw provisions requiring
compliance with the JPA.
ARTICLE 18— RECORDS AND REPORTS
18.1. Maintenance of ABAG POWER Records. ABAG POWER will keep:
18.1.1. Adequate and correct books and records of account;and
18.1.2. Minutes in written form of the proceedings of its Board, and
committees of the Board.
All such records will be kept at ABAG POWER's principal executive office, or
if its principal executive office is not in the State of California, at its principal business
office in this state.
18.2. Inspection Rights.
12 ABAG POWER Bylaws
. w
18.2.1. Any Member may inspect the accounting books and records and
minutes of the proceedings of the Board and committees of the Board, at any reasonable
time, for a purpose reasonably related to such person's interest.
18.2.2. Any inspection and copying under this section may be made in person
or by an agent or attorney or the entity entitled thereto and the right of inspection includes
the right to copy and make extracts.
18.3. Maintenance and Inspection of JPA and Bylaws. ABAG POWER will keep at
its principal executive office the original or copy of the JPA and these Bylaws as amended
to date, which will be open to inspection by ABAG POWER or any Member at all
reasonable times during office hours.
18.4. Inspection by Directors. Every director has the absolute right at any
reasonable time to inspect all non-confidential books,records, and documents of every
kind and the physical properties of ABAG POWER and each of its subsidiary Authorities.
This inspection by a director may be made in person or by an agent or attorney, and the
right of inspection includes the right to copy and make extracts of documents.
18.5. Financial Report.
18.5.1. Not later than the January 1 st after the close of ABAG POWER's
fiscal year,the Board will cause an annual report prepared by a Certified Public
Accountant to be sent to the governing body of each Member.
18.5.2. The report required by this section will be accompanied by any report
thereon of independent accountants, or, if there is no such report,by the certificate of an
authorized officer of ABAG POWER that such statements were prepared without audit
from the books and records of ABAG POWER.
18.6. Fiscal Year. ABAG POWER's fiscal year is January 1 to December 31.
ARTICLE 19 —CONSTRUCTION AND DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction,
and definitions in the California Civil Code will govern the construction of these Bylaws.
Without limiting the generality of the above, the term "person" includes both ABAG
POWER and a natural person and any capitalized term not defined in these Bylaws will
have the meaning ascribed to it in the JPA.
Bylfin.&C
13 ABAG POWER Bylaws