HomeMy WebLinkAboutStaff Report 5 09/15/19971
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DEPARTMENT: Department of Public Works
Steve Simmons, Public Works Superintendent
REQUEST COUNCIL ACTION: Approve resolution authorizing participation in ABAG's
Power Purchasing Pool and authorize the City Manager to sign the Joint Powers Agreements and
Direct Access Electric Aggregation Agreement.
RECOMMENDATION: Approve the Resolution.
BACKGROUND: In 1996 and 1997, the California Public Utilities Commission and the State
Legislature acted to deregulate the electric utility industry in the State of California. Starting
January 1, 1998, all customers of the current monopoly utility are eligible to contract directly
with the power supplier of their choice to obtain power supply.
In order to facilitate the participation of local governments in the new deregulated market, the
Association of Bay Area Governments (ABAG) created a Power Purchasing Pool for local
government agencies in 1995 (see attached memo from ABAG). To pilot its efforts in this area,
ABAG created a Natural Gas Purchase Program, in which the City of Petaluma did not
participate with 32 other public. agencies. In the first year of its operation, the Natural Gas
Program achieved a 7 percent savings for participants. In November 1996, ABAG issued an
RFP for Power Supply and Services on behalf of 130 local government agencies participating in
ABAG's RFP. On behalf of the RFP participants, ABAG evaluated proposals from qualified
suppliers, power marketers, and utilities and negotiated agreements with a team of suppliers and
service providers to create a comprehensive power purchasing program for local governments.
At this time, ABAG is offering to enroll local governments in the program for the 1998 calendar
year. The deadline for enrollment is September 30, 1997.
Program Description: Under the terms of the program, ABAG will purchase power for each
participant in the program and arrange for its delivery (transmission) to the PG &E system.
PG &E will be responsible for ensuring delivery of the power to the end users as well as for
routine maintenance and emergency response services. ABAG, via its billing agent, will invoice
participants for power charges, transmission charges, and PG &E distribution charges, which will
also include a competitive transition charge and a public benefits charge. Payments from
participants will go to an escrow account, from which ABAG will authorize the payment of all
suppliers and service providers.
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Based on its current arrangements with two suppliers to provide low cost power, ABAG
estimates that the rate of savings for the program will be approximately 4 percent less than
PG &E's bundled rate service in the first year of the new deregulated market. ABAG rates will
be established in Fall 1997 after ABAG has completed its purchase of needed power. ABAG
anticipates it will have a specific rate for street lighting. ABAG recommends that participants
bring all of their electric accounts into the program in order to maximize the load aggregation
potential of the pool. Power suppliers were selected using a competitive process.
Power suppliers and services providers for the program were selected using a competitive
process on the basis of the price of commodity and services compared to other firms offering the
same product or service. Power suppliers currently under MOU with ABAG include Seattle City
Light with CNG Energy Services and PG &E Energy Services. Service providers were selected
on the basis of competence to perform the desired service and the extremely competitive price
offered. Billing services will be provided by Arizona Public Service Company. The Northern
California Power Agency will provide schedule coordination, dispatch, and commodity
management services.
Participants in the program will be required by state regulation to install meters capable of hourly
reads on all accounts with greater than 20 kW maximum demand. ABAG will facilitate the
purchase and installation of these meters for all participants in the Pool. Although the cost of
each meter is unknown at this time, ABAG anticipates that it will be able to amortize the cost of
the meters over a multi -year time period. Installation of meters for these accounts is not an
ABAG requirement but a state- mandated prerequisite to participating in the new deregulated
market.
Participation in the program is governed by two agreements: 1) a Joint Powers Agreement and
2) a Direct Access Electric Aggregation Agreement. ABAG is forming a joint powers agency to
house this program and the existing natural gas purchasing program. The joint power agency is
required to insulate ABAG's other planning and service programs from the cash flow and legal
requirements of the Power Pool. The joint powers agreement must be executed by each public
agency participating in the program. The Direct Access Electric Aggregation Agreement
stipulates the commercial terms of the program, including the participant's commitment to
purchase power from ABAG and to pay for other charges incurred by the Pool on behalf of all
participants. The initial term of the Agreement is one year.
ABAG will charge participants a per -kW administrative fee to cover the cost of administering the
program, including the cost of obtaining consulting expertise to design rates and purchase
additional power supplies and to pay for the monthly services of the Schedule Coordinator.
ABAG's Administrative Fee will be approved by the Power Purchasing Pool Committee in Fall
1997 after the final supply arrangements have been made and the rate structure has been
announced.
As a participant in the program, the City of Petaluma will have a representative on the governing
body for the Joint Powers Agency and will have access to the expertise of ABAG's consultants
and service providers.
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2 Fiscal Impact: ABAG estimates that total savings in the first year of the electric program will be
3 approximately four percent less than what the City of Petaluma would otherwise pay PG &E for
4 the same service. In 1996, ABAG estimated that the natural gas program would achieve only a
5 two to three percent savings; however, at the end of the first year, the program posted a seven
6 percent savings due to pipeline rebrokering and other commodity management activities. Based
7 on ABAG's experience with natural gas, ABAG anticipates that commodity management and
8 rebrokering of excess power may result in actual savings in the electric program exceeding this
9 conservative projection.
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11 ALTERNATIVES:
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13 1. Pool power purchases with another group.
14 2. Negotiate with power suppliers as a single entity.
15 3. Do nothing.
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17 CONSEQUENCES OF NOT ACTING: Continue to purchase power from PG &E at an
18 estimated 4% higher rate than power purchased by pooling with ABAG.
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20 ACTION FOLLOWING A THORIZATION: The City Manager will be authorized to sign
21 the Joint Power Agreement and Direct Access Electric Aggregation Agreement with ABAG for
22 power purchases.
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RESOLUTION AUTHORIZING THE CITY MANAGER TO ENROLL THE
CITY OF PETALUMA IN THE ASSOCIATION OF BAY AREA GOVERNMENT'S
POOLED POWER PURCHASING PROGRAM
WHEREAS, on May 6, 1997, the California Public Utilities Commission (CPUC) issued
Decision 97 -0 -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, the City of Petaluma is currently an electric customer of PG &E; and
WHEREAS, the City of Petaluma 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
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2 WHEREAS, the Petaluma City Council finds that it is in its best interest and the public
3 interest to join ABAG POWER and participate in ABAG's Electric Program.
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NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma
authorizes the City Manager, with the concurrence of the City Attorney, to (1) execute and
deliver the "Joint Powers Agreement creating the ABAG Publicly Owned Energy Resources ";
(2) authorizes the City Manager or his/her designee 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; and (3) designates the City Manager or his/her designee as the City's
representative to the Board of Directors of ABAG.
reso97/kc
A4c- -r- A
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 cooperative and coordinated manner, public resources and
infrasUucU= used~in tine deiivery.of such_ energy and services.
E. The Association of Bay Area Governments (ABAG), at its sole expense, has created and
implemented a natural gas aggregdtion 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.
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
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:
2 ABAG POWER JPA
(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.
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-3) 1, 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.
(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) 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 Assi ng ment. 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.
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:
APPROVED AS TO LEGAL FORM
Legal Counsel
Attest:
I: \staf \jpa3.doc
8 ABAG POWER JPA
BYLAWS OF
n
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 (2/3) 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.
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. Program 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. Qmoru m. 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 supenmajority 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. Deleiation 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
71. 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
72.5. 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. L L 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
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(Freasurer 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 anominee =dvc&a majorit3c 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 at a regular or special meeting.
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.
follows:
8.6.5. Chief Financial Officer. The Chief Financial Officer perform as
(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
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
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 Membe r. 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,
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 ABAG POWER pursuant
to a service agreement.
ABAG POWER Bylaws
ARTICLE 14 — PURCHASE OF INSURANCE
In conformance with the procedures and criteria developed by i4 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
15.1. 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 party 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
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.
11 ABAG POWER Bylaws
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. After 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.
163. 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
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
DIRECT ACCESS
ELECTRIC AGGREGATION AGREEMENT
BY AND BETWEEN THE
ASSOCIATION OF BAY AREA GOVERNMENTS
AN I)
PUBLIC AGENCY
WITHIN THE SERVICE TERRITORY OF
PACIFIC GAS 8C. ELECTRIC CO.
DATED .1997
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 a,ency, and (Public
Agency), a California
The parties hereby agree as follows:
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)].
?. Authorities: All parties understand and agree that the legal authority for the Program Is
granted by and subject to the California Public Utilities Carnniissloll (CPUC), as initially
authorized by CPUC Decision No. 97- 05 -0 -'0 and as it may be modified and /or
augmented through subsequent CPUC decisions, orders, rules, regulations, tariffs and
rulim's 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
agreenlent(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 ofSeryiee as defined in Paragraph
2? ABAG has reviewed the Decision and other materials developed by, or under the
auspices of the CPUC. ABAG belie%es 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 ofdireet 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 25, 199;. 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 unchained 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 Particitiation 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 deters) for each Account,
(e) pay, or caused to be paid, all stranded costs associated with the Utility nieter
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 deters, (b)
installing Hourly Nleters, or (c) causing Hourly Meters to be installed by third parties
(including the ESP). ABAG anticipates issuing a Request for Proposals to install Hourly
Nleters 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 Nleters
for all Accounts by January I, 1995, or the earliest possible date thereafter, (2) any
additional costs incurred to install Hourly Nleters by such date, and (3) supply of Hourly
Nleters.
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,
(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 _.
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
NIOU 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.
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? 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.
Direct Access Imnlementation: For each Account for �%hiclt ABAG and Public Agency
fulfills tite requirements of Paragraphs 4 and 5 and for «hich 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 -ollowing ser: ices:
(a) scheduling;
(b) transmission;
(c) distribution;
(d) billing;
(e) Hourly Metering;
(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 _.
Agencv 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 pan vendors and service suppliers.
10. Notification of Changes in Accounts: Public Agency will notifv 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.
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 _ 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 A"encv'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 paving 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 al its Accounts and the denominator is the
total estimated usage for all accounts in the aggregation (Contingency Reserve
Surcharge). Tile timing of the Contingency Reserve Surcharge payments) (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) (o.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 _. 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 Ind its agreement with the
billing 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 (IS %) per month calculated daily
Oil the outstanding balance will be imposed commencing on the thirty -first (31st) day
after the mailing date of the invoice. Late payment charges mav, 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
bet%veen 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 reco�,nizes 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 estabiish actual separate fund
accounts with monies on behalf of, or in the name of Public A\ !ency. 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 AcCOLI!US 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.
is. Contingency Reserve Fund: Public agency ac;nowledges that dUrii- tile terns of
this Agreement ABAG has the right to use nnonies ien the Contingencv Reserve Fund to
pay Actual Charges incurred by Participants in the Electric Prorann as such Actual
Charges become due. ABAG will deposit into tine Contingency. Reserve Fund any
Invoiced Amount payment, or portion thereof, \�hich 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 Antount(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 potion 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 tend, whichever is earlier.
20. Late Changes: In the event Public Agency fails to make timer• payment, consistent
with the terms employed by ABAG, in addition to any other remedy it ma"- 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 oil late accounts as well as reasonable charges associated with suspension and
resumption of service hereunder.
21. Pavment of ,Actual Changes: 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 mill 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 Re,ardina Actual Charges: Any disputes between the parties regarding the
amount ofanv Actual Charges 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 A;encv: 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 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 either party 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: (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. Renorts. Photo_raohs. and Related Documents: Upon
termination of the Agreement, any and all tiles, reports, photographs, plans,
specifications, drawings, date, 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 %0latever 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, �_ross negligence or intentional misconduct of ABAG, its directors, its
member agencies, its agents or its employees.
29. Ass i,nment/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 _, to ABAG POWER upon the formation of ABAG POWER.
Nothin` 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 invoicess will be:
Public A;encv Notices
Name:
Address:
Telephone No.:
Facsimile No.:
Entail:
Attn.:
Public Agency Invoicing Address
Name:
Address:
Telephone No.:
Facsimile No.:
Email-
Attn.:
ABAG Notices
ABAG
P. O. Box 2060
Oakland, CA 94601 -2060
Patricia Spangler, Assistant to the Executive Director
Telephone No: 610 - 164 -7900
Facsimile No: 610 -161 -7970
Ema i 1: Patric iaScabag.ca.gov
30. Commencement Date and Tenn: 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 wizen 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
(t) full year after the latest Commencement Date for any Participant.
31. 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.
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.
Iti WITNESS WHEREOF, the parties have hereunto set their hands effective the date and gear
First above written.
ASSOCIATION OF BAY AREA GOVERN ivlENTS
IN
Eugene Y. Leon, Executive Director
Approved as to legal form and content:
JOSM
Kenneth K. `loy, Legal Counsel
PUBLIC AGENCY
Date:
Date:
By: Date:
Approved as to legal form and content:
By: Date:
Account Number
EXHIBIT B
STANDARD CONTRACT PRO�'ZSIOrS
A. Time of Essence. Time is of the essence in this A�,reement.
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 maters relating to it shall be governed by
the laws of the State of California.
D. Bindina 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 assi`_n, transfer, hypothecate, or pledge this Agreement other
than as provided above.
E. Records /:audit. ABAG shall keep compiete 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 Agenc }''s governmental grantors to inspect, coo %, 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) %cars after the date that services are
completed hereunder or this Agreement is other vise 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 SUbleon tracts.
G. Insurance Requirements.
( I ) ABAG shall, at its own expense, obtain and maintain in effect at all times
during the life of this Agreement the following insurance:
(a) %Vorkers' compensation insurance as required by law.
(b) Comprehensive general liability insurance coverage of One Nlillion
Dollars (S 1,000,000) in the aggregate for products and /or completed
operations and One ,Million Dollars (51,000,000) per occurrence for
automobiles.
(e) Professional liability insurance with minimum liability limits of
Two vliIIion Dollars (52,000,000) 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) da.s 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 Agenc %.
(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) 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 am, 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 ( I )(b) of this section.
(6) ABAG will require all subcontractors to comply with the insurance
requirements described in Section G( I )(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 ofup to six (6) arbitrators with each party submitting up to three (3)
arbitrators.
Public Agencies Forwarding Power Pool Resolution to Council or Board
September 4, 1997
Cities and Towns
41. City of Santa Rosa
I . City of Albany (adopted resolution)
42. City of Saratoga
2. City of Antioch
43. City of Sausalito
3. City of Arcata (adopted resolution)
44. City of Sebastopol (adopted resolutions)
4. City of Benicia (adopted resolution)
45. City of Vallejo
5. City of Cloverdale
46. City of Winters (adopted resolution)
6. City of Concord
47. Town of Atherton (adopted resolution)
7. City of Cotati (adopted resolution)
48. Town of Los Altos Hills
8. City of Cupertino
49. Town of Moraga (adopted resolution)
9. City of Davis
50. Town of Windsor (adopted resolution)
10. City of Daly City
11. City of El Cerrito
Counties
12. City of Foster City
1. Contra Costa County
13. City of Gilroy
2. County of Alameda General Services Agency
14. City of Gonzales
3. County of Alameda Public Works Agency (Street
15. City of Half Moon Bay
Light Association Accounts)
16. City of Hayward
4. County of Butte
17. City of Hercules
5. County of Humboldt
18. City of Larkspur
6. County of Napa
19. City of Los Altos
7. County of San Mateo
20. City of Menlo Park
8. County of Santa Cruz
21. City of Mill Valley
9. County of Solano
22. City of Millbrae
10. County of Sonoma General Services, Regional
23. City of Milpitas
Parks, Transportation and Public Works
24. City of Monterey
25. City of Newark
Special Districts
26. City of Oakland
1. Bay Area Air Quality Management District
27. City of Orinda
2. East Bay Dischargers Authority
28. City of Pacifica
3. East Bay Regional Park District
-29. City of Patterson
4. Golden Gate Bridge, Highway and Transportation
30. City of Petaluma
District
31. City of Pinole
5. Hayward Area Recreation District
32. City of Pleasanton
6. Housing Authority of County of Alameda
33. City of Richmond
7. Regional Administrative Facility Corporation
34. City of Rohnert Park
S. South Bayside System Authority
35. City of Salinas
9. South County Fire Authority
36. City of San Bruno
10. South County Regional Wastewater Authority
37. City of San Carlos
11. Valley of the Moon Water District
38. City of San Leandro
12. West Bay Sanitary District
39. City of San Mateo
13. West County Wastewater District (adopted
40. City of San Pablo
resolution)
ASSOCIATION OF BAY AREA GOVERNMENTS 0
Representing City and County Governments of the San Francisco Bay Area ABAG
Date: August 21, 1997
To: Interested Local Government Agencies
From: Eugene Y. Leong, Executive Director
Patricia Spangler, Power Purchasing Pool Manager
Subject: How to Join ABAG's Power Purchasing Pool for Electricity
Thank you for your interest in ABAG's Power Purchasing Pool. After some delay due to the
complexities of negotiating with power suppliers, we have completed our RFP process for power
supply and services and are very pleased to present you with a program description as well as
instructions on how to join the Electric Program.
As you may know, the first year of our Natural Gas Program was very successful, with the
Program posting a seven - percent savings. With your participation, we believe the Electric
Program will be equally successful. Enclosed you will find the following information:
1. ABAG's 1998 Power Supply Savings Estimate
2. Additional Information on Administrative and Other Costs (Pro Forma)
3. PG &E Customer Information Release Form
4. We're Going Ahead Form
5. Council/Board Resolution Authorizing Participation in the ABAG program
6. Direct Access Electric Aggregation Agreement
7. Joint Powers Agreement Creating ABAG POWER
8. Sample Report to Council/Board
9. Answers to Frequently Asked Questions
Electronic versions of the Council/Board Resolution and Sample Report to Council/Board is
available online at hup: / /www.abas.ca.gov /services /cower. We will also send these documents to as
an attachment to e-mail message or on a diskette. You may request electronic documents by
contacting Patricia Spangler at 510/464 -7933 or by e-mail at PatriciaS@abag.r-a.gov.
Important Backeround — How Market Realities Have Shaped the Program
When ABAG initiated its RFP process in November 1996, its goal was to obtain firm and
competitive pricing for an amount of power sufficient to serve the 130 public agencies initially
interested in being represented by the RFP and to arrange for the selected suppliers to hold the
offered prices for 90 days while public agencies evaluated legal agreements and obtained
Council or Board approval to join the program. Furthermore, ABAG wanted at least 50 percent
of the acquired power supplies to be at fixed instead of variable prices.
Mailing Address: P 0. Box 2050 Oakland, California 94604 -2050 (5 10) 461 -7900 Fax: (5 10) 464.7970 info@abag.ca.gov
Location: Joseph P. Sort MetroCenter tot Eighth Street Oakland, California 94601.4156
ABAG did receive extremely competitive pricing for power supply through its RFP process. In
fact, power supply prices received averaged approximately 20 percent below the projected
average price of the Power Exchange (the new market mechanism that will determine the
utility's price of power). This 20- percent discount on the price of power is equivalent to a five
percent reduction on the bundled power rates. However, in negotiating supplier contracts,
ABAG experienced two important market realities that have shaped the program that is being
offered to public agencies today.
First, suppliers offering the lowest fixed prices were unwilling to hold the prices for the 90-day
review period ABAG requested on behalf of RFP participants. Second, suppliers were also
unwilling to allow ABAG to reserve a quantity of power and then adjust its actual purchase
amount up or down to reflect the final load requirements of those public agencies formally
joining the Pool.
ABAG concluded from these negotiations was the best power purchasing strategy for the
proposed pool was to: 1) execute MOUs with those suppliers offering power products with
attractive fixed or variable pricing and willing to meet ABAG's requirements; 2) determine the
Pool's final load requirements by asking for public agencies to make a commitment to purchase
with ABAG thus creating the Pool's ability to execute contracts for specific amounts of power in
a timely fashion; 3) complete the Pool's purchase of power supply during October 1997 with the
committed Pool in place; and 4) empower the Pool's Schedule Coordinator to not only purchase
the Pool's additional daily requirements if needed but improve the Pool's total power cost on an
hourly basis through trades with other Schedule Coordinators, suppliers, and the Power
Exchange.
ABAG believes that with a committed Pool in place it can obtain the most competitive pricing.
If ABAG is able to replicate its November 1996 bid results, the projected bottom -line savings
(after all costs are factored in) is approximately 3 to 4 percent less than PG &E bundled rate
service in the first year of the new deregulated market.
Program Description
ABAG Services: At this time, ABAG is offering to purchase power for all local governments
and special districts in the PG &E service territory. First priority will go to those local
government agencies that participated in the RFP process. ABAG will purchase power for each
participant in the program and arrange for its delivery (transmission) to the PG &E system.
PG &E will be responsible for ensuring delivery of the power to the end users as well as for
routine maintenance and emergency response services. ABAG, via its billing agent, will invoice
participants for power charges, transmission charges, and PG &E distribution charges, which will
also include a competitive transition charge and a public benefits charge. Payments from
participants will go to an escrow account, from which ABAG will authorize the payment of all
suppliers and service providers.
ABAG Power Rates: ABAG rates will be established in Fall 1997 after ABAG has completed
its purchase of needed power. Rates will be structured to reflect the relative cost of peak and off -
peak power. ABAG anticipates it will have a specific rate for streetlighting. ABAG recommends
that participants bring all of their electric accounts into the program in order to maximize the
load aggregation potential of the pool:
New Meters Required: Participants in the program will be required by state regulation to install
meters capable of hourly reads on all accounts with greater than 20 kW maximum demand
ABAG will facilitate the purchase and installation of these meters for all participants in the Pool.
Although, the cost of each meter is unknown at this time, ABAG anticipates that it will be able to
amortize the cost of the meter on a multi-year time period. Installation of meters for these
accounts is not an ABAG requirement but a state- mandated prerequisite to participating in-the
new market.
Power Suppliers and Services Providers: Power suppliers and services providers were
selected using a competitive process. Power suppliers were selected on the basis of price of
commodity compared to others offering the same product. Power suppliers currently under
MOU with ABAG include Seattle City Light with CNG Energy Services and PG &E Energy
Services. Service providers were selected on the basis of competence to perform the desired
service and the extremely competitive price offered. Billing services will be provided by
Arizona Public Service Company, The Northern California Power Agency will provide schedule
coordination, dispatch, and commodity management services.
Joint Powers Agreement: ABAG is forming a joint powers agency to house this program and
the existing natural gas purchasing program. The joint power agency is required to insulate
ABAG's other planning and service programs from the cashflow and legal requirements of the
Power Pool. The enclosed joint powers agreement must be executed by each public agency
participating in the program.
Direct Access Electric Aggregation Agreement: The Direct Access Electric Aggregation
Agreement stipulates the commercial terms of the program, including the participant's
commitment to purchase power from ABAG and to pay for other charges incurred by the Pool on
behalf of all participants. The initial term of the Direct Access Electric Aggregation Agreement
is one year.
ABAG's Administrative Fee: ABAG will charge participant a per -kWh administrative fee to
cover the cost of administering the program, including the cost of obtaining consulting expertise
to design rates and purchase additional power supplies and to pay for the monthly services of the
Schedule Coordinator. ABAG's Administrative Fee will be approved by the Power Purchasing
Pool Committee in the Fall 1997 after the final supply arrangements have been made and the rate
structure has been announced.
Deadline for Action: September 30, 1997
In order to join the program for 1998, your Council or Board must adopt the enclosed Resolution
and execute the Joint Powers Agreement and the Direct Access Electric Aggregation Agreement
by September 30, 1997. At this time, ABAG does not have sufficient information about its
contractual obligations or rate structure to determine if public agencies may join after September
30a' or during the first year of the program.
If you are planning on going to your Council or Board for approval to join the program, please
do two things as soon as possible:
1. Let us know as soon as possible by faxing the enclosed "We're Going Ahead!" response
form. Twenty-nine agencies have told ABAG that they plan to go their Council or Board
before September 30, 1997.
2. Fax to ABAG a signed Customer Information Release Form as soon as possible. ABAG will
use this signed form to have PG&E send us 1996 -97 energy data on all of your accounts.
This data is important: ABAG needs it to purchase and dispatch power for the pool and to
calculate your levelized payments for 1998.
uestions
Whether you join one or both of ABAG's program, your agency can be assured of quality
service and public sector approach to pooled purchasing conducted by ABAG. Each public
agency is guaranteed a voice in program operations and decisions through its representative to
the Power Purchasing Pool Committee (current) and the ABAG POWER, the new joint powers
agency being formed to house both programs.
Please call Patricia Spangler at (510) 4647933 or ABAG Legal Counsel Ken Moy at (510) 464-
7914. Of course, ABAG staff will be available to attend Council and Board meetings when you
present this information.
Frequently -Asked Questions
About'
ABAG's Power Purchasing Program for Electricity
. , J.
L What rates will we pay if we stay with PG &E?
PG&E's rates are frozen for the next four years. If you stay with PG &E, you will
pay your current rates.
2. What about the state - mandated 10- percent rate reduction?
Accounts using under 20 kilowatts maximum gemand'(all accounts on PG &E's Al
and A6 rate schedule and some of the accounts on the A10 rate schedule) will
receive a 10- percent reduction. Streetlighting and traffic control accounts will not
receive the 10- percent reduction. The rate 'reduction is calculated on the total
PG &E bill and will be calculated on transmission and distribution charges only if
the account is served by a third party supplier such as ABAG. If you join ABAG,
You will receive 10% discount on transmission and distribution (approximately .75
of one cent per kWh) plus 20% discount on power (approximately .5 cents per
kWh) for a total discount of approximately 13 percent for those accounts under 20
kw maximum demand.
3. Is the ABAG's four - percent discount guaranteed by ABAG or the
suppliers?
ABAG's savings rate is an estimate only and is not guaranteed by ABAG or the
suppliers. Variables that could affect the saving estimates are all related to Pool's
power usage and the daily price of power. If the pool uses more or less than
expected for any given period, ABAG will need to purchase or sell power on the
spot market. These additional costs (or profits) will need to be factor into the final
rates and will affect the savings rate.
4. How did ABAG estimate the average Power Exchange rate of 2.5 cents per
kWh?
ABAG uses 2.5 cents per kWh because it is frequently cited as the average Power
Exchange rate by PG &E and other California utilities.
5. Did ABAG try to get a "Power Exchange- minus" price for power?
None of the firms participating in ABAG's RFP process submitted a "Power
Exchange - minus" bid.
METERS AND METER INSTALLATION
1. How many new meters will my agency need to install?
A meter capable of hourly reads (interval meters) are required for all accounts that
use over 20 kW maximum demand. This is the same threshold used for the
application of the 10- percent discount. & accounts on PG &E's Al and A6 rate
schedules will require new meters. Some accounts on PG &E's A10 Schedule will
require new meters. In general, accounts on PG &E's E19 and E20 (large accounts)
already have meters in place but may require a communication device installed.
In general.* fewer than 10 percent of your accounts will require new meters. See
the Combined Meter Report attached to the Cost Pro Forma.
2. What types of accounts use over 20 kW maximum demand?
Large office buildings (such as a City Hall) and wastewater treatment plants are
examples of accounts over 20 kW maximum demand.
3. What is the estimated cost of the new meters?
The estimated cost of installing a new meter with the appropriate communication
technology is between $500 and $1500, depending on the type of meter and
communication device. ABAG is issuing an RFP to obtain more detailed
information. Remember, meters are only required for a small number of your total
accounts. ABAG estimates that new meters will pay for themselves in 7 to 23
months depending on the cost of the meter system.
PAYMENTS AND RESERVE AC'COUNTS
1. How much "up- front" money is required?
There is no fee to join the program. However, each participating agency must
make an advance payment equal to approximately 1/12' of its annual bill 30 days
prior to the start of service. In addition, there are two reserve accounts that are
described below.
2. What are the reserve accounts listed in the Aggregation Agreement for?
How much will each member be required to deposit in these reserve
accounts?
There are two reserve accounts that may require deposits by each participating
agency.
The first reserve account is a contingency reserve account will cover unanticipated
transmission - related costs such as imbalance and congestion management charges.
These charges are estimated to be relatively rare and extremely small on a per -kWh
basis. ABAG will incorporate these charges into the rate structure for collection
purposes but they will be posted as individual charges to each account.
The second reserve account will be required only if ABAG must make a
creditworthiness deposit with PG &E for the privilege of issuing a consolidated bill.
ABAG has previously been evaluated as creditworthy without deposits by PG &E
and is likely to be so again. However, if some credit deposit is required, a deposit
equivalent to two months' of charges may be required of each participant.
RATESTRUCTURE
1. Will there be peak and off -peak rates available from ABAG?
Peak and off -peak pricing differential are likely to be addressed in twb ways: 1)
there will be a rate schedule for street lighting and 2) there may be a demand
charge.
2. Will there be seasonal variation in ABAG rates?
Yes, because ABAG will purchase approximately 50 percent of the Pool's power
requirements on a market index that fluctuates by seasons, it is highly likely that
ABAG rates will have at least two tiers (summer and winter) and will be higher in
the summer.
3. Will ABAG have a street light rate?
Yes, ABAG will create a special rate for streetlighting. The basis for this rate has
not been determined.
LEGAL AGREEMENTS
1. What are the requirements to exit the program?
With sixty days notice, participants may terminate their Aggregation Agreement at
the end of 1998. With 180 days notice and complete fulfillment of all contractual
and legal obligations, participants may terminate their membership in the Joint
Powers Agency.
2. Why are there blanks in the Joint Powers Agreement By -Laws
The By -Laws are in draft form and will be completed, revised, and approved by
the Board of the new Joint Powers Agency after its formation.
3. Can we Wait and join iq 1999? If soy under what conditions?
ABAG plans to allow new members to join the program in January 1999; however,
the new JPA Board will determine ABAG's policy for who and how new members
may enter the program.
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ERANCHE FEES
IS
1. If we are a City or County, will joining this program reduce our franchise
fee revenues?
Yes, but only because your City and County will not be paying the franchise fee
surcharge on the accounts you bring to the ABAG program. Instead, the franchise
fee surcharge will be deducted from your bill. and you will keep it for your own
use.
2. Will ABAG collect utility taxes on these accounts?
No, because most of these government accounts have. been exempted from local
utility tax — (why tax yourself). If however, your agency does apply the tax to
some accounts such as those of an enterprise fund, we suggest you make in -house
arrangements to collect the utility tax.
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