HomeMy WebLinkAboutAgenda Bill 3.B-Attch1 08/16/2004ATTACHMENT A
WIND UP AGREEMENT WITH ABAG
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RECITALS -
A. The City became a signatory tothe]oi creating POWER
E. Upon suspension" of the Elect Program,.ABAG POW
Elk"retairied funds (previously
paid lby Membeits a& destribed� in paragraph D) to (,1J identified potential
th 6fma"rs'�a "'assets amounts owed to POWER and Members)
ets, or (3) eliminate
ident.ifi,'ed'Apot6�i.i�l,li6bilitie's associated with'a major asset.
Therefore, ABAG Pbw and City:agree to wind up,the Electric Prbgram,under the following
terms and conditions!
B. ABAG POWER �hasw been, and continues bsba/ bv employees of the Association
'of Bay Area Governments (ABA�l -
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C. The
"y=="e"` it
2). Under th DA. ht�the City. was :a'particilpari nz the direct 'access electric
eff ecil ve'i,u,n, ei 2 0 0 (the Electric Program"is d escNbed in; mo . re detail in
Attach ment"
D. ~~.n'*~~ rm
.share'of,Electric Program cbsts,and Wor Capita 1'n.'Oe�s '(Electric - Program costs
'd Working i6Atta �
6 Capital rfeedslare described in more detail ment B).
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Pay /
1.
d proper accounting of all sums due to it from a'
wind up' ofthexElectric ram the following specific and contingent sums:
'Balancing
be determ pocaUaDtto §4
PJ ^ (:$196,030)'
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Wind upAgreement
d) ISO Escrow Deposit —to be determined pursuant' to §5
e) PX Escrow Deposit to be .determined pursuant to §5
f) Wind Up Costs .Hold Back to be determined pursuant to , §11
2. Payment Terms ABAG ,POWER will pay'to City the following sums,
a) In complete payment of the Balancing .Account owed City, such funds,as are
available as of July 1, 200.4. Both the payment schedule:and the amounts to
be paid to City are determined by §4 of tlis Agreement.
b) In complete payment ofthe Working- Capital Deposits owed City, the sum'of
($19.6.,030) within fifteen (15.) days after the City's execution and return of an
original of this Wind Up Agreement ortafter ABAG POWEk's receipt "of the
"Qualifying Agreement" as defined in §10 whichever `is later.:
c) In complete payment of�the DA, Credit owed City,, 'the su.m of ($386,344) within
fifteen (.15) .days .after the latest of the following: i) the City's execution and
return' of an original of this Wind U,p Agreement, or ii) after ABAG'POWER's
receipt of the "Qualifying Agreement" as defined in. §10, or iii) receipt of the DA
Credit from, PG &E.
d) In complete payment of the ISO, Deposits owed the City; such funds
that ABAG POWER may receive from'ti'me to time from °the Northern California
Power. Authority (NCPA) until all funds :available from the ISO' Escrow'D:eposits
are received.- Both. the payment sched and the amounts to be paid to the.
City are determined'•by §5 of this Wind Up Agreement..
e) In complete payment of `the PX, EscroW Deposit owed the City, funds that ABAG
.POWER may receiveifrorn tirnetotime•from NCPA: until all 'fu,n'dsavailable from
the PX Escrow 'Deposit are - received. Both the payment schedule. and the
amounts to be paid to.City are determined, by §5 of this Wind Up Agreement. •
f) In complete; payment of the Wind Up Costs- :Hold ,Back, the am'o.unt' determined
under §11 'of this'W,ind Up Agreement on'or before July 1 20A_.
3. Fun dsAvailablefor Disbursement and Allocation Ratios Based bin ABAG POWE_R's
representation .and warranties in; §6, and such other documents as it deemed
necessary:; the acknowledges that:'
a) fundsavailable for disbursement,were - determined .by ABAG POWER: as
described •in greater detail, in Attachment C. Further, City approves such
determination.
b) the payments described in. § §1(a);, (d;),,.(e)' +and (f) of °th'i "s Wind Up Agreement
are ,the tesult of allocating all the Balancing Accounts, ISO Escrow Deposits,.'PX
Escrow Deposits and :Wind Up Costs Hold Backs available for disbursement
:among the Members in ,a, ratio equal to each : Member's electrical usage during
-the period :of time such Member participated in the Electric Program to the total
electrical. usage by all Members who were participating in the Efectric
at the of suspension ( "Usage Ratio" ). Further,'City approves such
allocation.
c) Working Capital Deposits were made, I by the Members in accordance with ABAG
POW_ER's financial records (see:Attachment:C). City acknowledges' that the
payment described in §1(6) of this Wind:bp Agreement = is the result of
allocating the Working Capital: Deposits available. for disbursement among the
�Mernbers in a ratio equal to the City's deposits to Working Capital to all
Working Deposits imade by all Members who were; pa'rtici'pants in the
Electric Program at the,time of suspension (" Working 'Capital Ratio "). Further,,
City approves such allocation..
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Wihd Up Agreement
d) the payment described,';ini §1(c) is the reswlt. of allocating the ;DA Credit
available 'for disbursement among the Members i.n a ratio equal to the CTC
Reversals paid by City to all CTC Reversals paid by all Memb "ers ( "CTC Reversal
Ratio "): The method.for determining said ratio is described in greater detail in
Attachment C. Further, City approves such allocation.
4. Balancing Account Payment Amount and Schedule The amount of the Balancing,
Account Payment to City is based on the.tbtal funds available for disbursement after
payment of Working Capital Deposit and DA Credits and allocated to each Member by
'the Usage Ratio. ABAG POWER will have an independent financial audit conducted
for fiscal' year 2003 -04 which will identify the total' amount available for distribution.
This amount will be allocated by the Usage Ratio and sent to City no later than March
31, 2005.
5. ISO. Escrow "Deposit and P.X Escrow Deposit, Amounts and Pavment Schedule(
a)' ISO Escrow..Deposit amount in the ISO Escrow Deposit available for
;disbursern'ent to "Members wilt be affected b,y regulatory and adjudicatory
actions of the California Independent System Op "erator (ISO), California Public
Utilities Commission (CPUC) or Federal Energy Regulatory Commission (FERC)
(see Attachments B and D). As of December,31, 2003; the total amount in the
ISO Escrow Deposit is Five Hundred bght.'T.t ousand Two'Hundred Fourteen
Dollars ($508,214) For a period of norless -than two (2) years after the
effective date of the Qualifying; Agreement or Decem ber;3,1, "2006, whichever is
later, ABAG POWER will monitor activities affecting, „;fund' balances in the I'SO
scrow De osit: ands w
p ill challenge or °accept'such recalculations at its!sole
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reasonable discretion taking into account,, among ;other factors, the amount of
the recalculation, the, probity the underlying cause of the recalculation and
the co De osit a T,he California Po e E cha ge I( ul jti i
P
st and robat
b PX Esc I ' ' PX wsDepost s O bankruptcy. As
Dos
Million Fift -Six Thousand Five One
o December 1. 31 2003 the total amount in the PX Escro 11 y , Hundred Six, DoIlars °($ 056 For a period
of no less than two (2) years. after the:effective date of the 'Qualifying
Agreement " or December 31, 2006, whichever is later, ABAG POWER will
monitor activities'affecting fund,balances• in the P -,X Escrow Deposit and will
challenge or accept'such recalculations at 'its sole, reasonable discretion taking
i the ccounl among ong other factors, the amount of the recalculation, the probity
underlying e of the . recalculation..and'the cost and probative value of
challe'ngin.oJhe recalculation. .Upon its. d I ischarge from bankruptcy, the amount
in the PX !Escrow Deposit ava.ilab.le_ for clisbu isement to Members will be
deter"rnined.
c) Payments NCPA; may,release portions of the ISO and /or PX Escrow Deposits
to ABAG POWER from time tojime. ABAG POWER will .place such amounts in
,an'interesf bearing account until' all funds have :been :released or December 31,
2006, whichever `is earlier. The' City's,s,,are will be determined using the Usage
Ratio. ABAG. will pay its share ofthe.amount in such accounts at that
time. Any:`pa,ymerits received by ABAG; POWER after,'such disbursement will be
paid'to;,Electric Program .Members if. in ABAG POW,ER's sole discretion, it is cost
effective to ;d'O rso,
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Wind Up Agreement
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6: ABAG POWER's Representations and'Warranties •
a) ABAG POWER represents and warrants that. the descriptions prouided in
Attachments A; B, and C are, to the best.of ABAG POWER'S knowledge, itrue and
accurate for the purposes of (i) ABAG' POWER performing as required under the
Wind Up Agreement, and (ii) the Electric Program Members determining the.
accuracy,. fairness and. appropriateness of the distribution of funds
contemplated by this Agreement:
b) In some instances the: operation' of. the Electric Program may h`aue deviated
from. the description contained in Attachment B or Attachment' C or may omit
actors .
omissions . ABAG POWERrepresents and Warrants that any such deviations
or
some would not have had a material effect on the amounts, ;be,
disbursed or the allocation of those. amounts to any individual'.Mem'ber.
c) ABAG: POWER represents that the analysis provided in Attachment D is, as of
April', 15, 2004, a fair statementof'the'risk'th'atthe contingent liabilities
described in Attachment,D will`becorne actual liabilities. ,However, ABAG
POWER neither guaranties the outcome nor represents that such analysis is the ;
only conclusion that can be reached:
d)„ Only Electric ; Prod ram" Members who execute this Agreement are entitled to rely
owthe information represen."tations and warranties setforth, in this' "section and
Attachments -A through D, inclusive, and any exhibits therefo,.,
7. City :Due D.iligence.'and Acceptance of Representations and Warranties The City has
reviewed this Wind Up, Agreement, each of the Attachments and Exhibits and such
other documents as it'has examined and has determined thatithere Jis_no additional
in ;which it requires: in order to! make an informed decision on whether °to
accept or reject fhe terms of 'this Agreement or In order to: determine the amounts to
which it is entitled under the 3 P or the. DA. Therefore, the City hereby
a) Releases ABAG. POWER and ABAG, f ,.
rom any .and all liabilities orclaims which
the City, or anyone claiming through "it, may have againsf ABAG PO.WER:or
ABAG for damages, injury or additional' proceeds from the I wind up of the
Electric Program'.
b) Releases. ABAG POWER and ABAG from a_ny and all liabilities or claims which
the City, or,anyone';clairning;'through ' it, may have ,against ABAG POWER or
Electrilc�P ogram rna es' or injury g out of the City's' participation in the
y • g ) arisin,
C) Accepts the° "Contingent: Risks described''in Attachment D.
d) Agrees to defend and indemnify ABAG POVI%ER and ABAG against,any claims
made by any person claiming any rights through the City for damages resulting
from the City's participation in, the Electric Program, its executi ° on of this .Wind
Up Agreement or -'th'e •performance of'any of its obligations; hereunder unless
such is caused ,by :fraud, gross he or intentional ;misconduct of ABAG'
POWER or ABAG, or their respective members,' directors, agents: or employees.
,8. Other Electric Program "Members The City - aeknoWledges that each.lMember
executing •a'Wind Up Agreement substantially identical to this Wind Up Agreement,
excepting :only the amounts set forth in , §1 'is a thi d. party beneficiary of this Wind 'Up
.Agreement (herein'after,,;a Member who executes a Wind Up Agreement is .a `'Third
Party Beneficiary "). The City agrees that it'wil'I not make any claim, against' a Third
Party Beneficiary for monies owed,? or damages incurred by the City; as a result of
the .City's or Member's participation in the Electric Program:
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" - Wind Up Agreement
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Covenants,
a)' - Th6City'he'r"eby covenants that it will_�Fdb the following:
1) Notify POWER of any inform - ation, written , notices,, bills or any other
�commuhI666 (on regarding a Contingent -Ris "des , �in " Attachment D,
2) Cop erate' with ABAG an POWER . '-
p a] I Turd rd Oaf rtY Bene to
eliminate, m0t or resolve th,6 possibility that a Contihgeht Risk will be
triggered,!
3 Coop
pr�ate.�With _ABAG POWER and ali,Third Party Beneficiaries to fairly and
ire ' asoriaNy allocate costs associated with any Contingent Risk that'is
a incurred by the City, any Third,P,6.rty Beneficiary or ABAG POWER,
and'.
4) Pay*to. ABAG POWER its share. of,:an I y Contingent Risk incurred by ABAG
POWER; said share to be determined. by the process described in
subsection 9(c) of - this section.
b) ABAG POWER covenants that it. will
1) NOkfy:,the City arlduall Third Party,'gerfef iciaries of any information, written
notices, bills or'aby'other communication tegardirig a Contingent Risk,
described in Attachment D,
2) Upon the occurrence of an eveht. I described in 9(a)(,1) or 9(b)(1):
(i) the -Board bf Directors ofA6AG: POWER (Boa - rd) or the Executive
Committee of the Board (Executive Committee), shall designate no
-fewer than five (5) and no more'than ieleven (11) ThVd Party
Beneficiaries to.form atiabilitY Nlocatiqn Committee (LAC).
(ii)' The Board, or the Executive Committee shaill delegate to the LAC, the
exercise, ofABAG POWER's rights under Section 9.
c) ABAG POWER, , on, behalf of the LAC, covenants that the LAC shall:
1)1 Cooperate with the City and al Beneficiaries to eliminate,
Mitigate pr resolve ,the possibility -,that�4 Risk will be triggered,
Cooperaite� with the City a nd ,al[, Third I , Pa
qn
B - p iciaries to,fairly and
reasonably'!aflocate., costs associated with any Contingent Risk that is
att0allyrinturred by the . City or any ,Third ,Pa
Party Behle f iciary, and
3) The LAC shall con , firm the reasonablehess d I of the proposed
irne
a1locatibn .costs! by conclucting,b, poll '' I 'Third
of . _',Party:Beneficiaries. If the
proppsed allocati6n,is agreed to by a'majbrity. of Third" Party ,Beneficiaries,
then such plan is approved. For the purposes of this , section, a majority
(i) M.Pre than fifty percent (50 of the i vot.e l s cast determined by
c oun tin g
. ' ' ' - e ach 3hird Party Beneficiary having one vote, and
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(ii) More thah,fifty oercent (50 of th6 votes ;,.cast determined by
weidNr each Third Party! Beneficiary vote by the amount°disbursed
t& der� is
it un, t his � 'Agreement.,
th� Third, ,g
4) It e Pa,fty,BO'eficiari,es not l approve a cost allocation'plan under
S6ction (c)(3) then,th,e cost's.,ass.ociated with ,,8 Contingent .Risk �will be
amon all Third iene Part' y B f" s,inaccordance with C . TC
. iciane
ReVers',,al Ratio for any costs, assbc-latedl Withl fecovery, of DA Credits and in
accordance ,.,with the Usage Ratio for costs associated with recovery of
energy and/or UDC costs (see Attachment D).
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Wind .Up Agreement
5.) Receive from the City the share of an Contingent Risk in y the
Y g red b
('t) said share. to be determined by the process described -in subsection
9 3 or'9 ( 4) of this subsection.
6) Pay the liability. „
10. Effectiveness 'th`e Wi'nd'Up Agreement This Wind Up Agreerrientbecom _s
effective only if Members owed a total of Twenty Million Dollars ($20,000,,000) under
§ §1(a) (c)' execute a Wind Up Agreement "substanti "ally identical,`to this Wind Up
Agreement excepting only the amounts, set forth in ; §1. The executed-Wind Up
Agreement' "which triggers this , section 'is'the Qualifying, Agreement.
11. Wind Uo °Cost Hold 'Back Funds ABAG POWER will retain the sum of Hundred
housand. Dollars ($100,000) for the purposes described in §'12, Th'e'funds`will ' be
separately accounted for by ABAG POWER and will be disbursed, to Electric Program
embers m accordance with §2(f) and allocated among Electric�,Program Members in
accordance: with the Usage Ratio-.
12. Permitted :Uses of Wind Up Cost Hold Back Funds ABAG POWER may use funds ',in
the Wind Up C ost Hold Back to fund. staff;, consultants, .attorneys or others engaged
in any of the`tasks described in §'. §5 and 9 of this $Bind Up Agreement. ABAG.POVIIER
will send to.each Electric Program Member an.an - hual report on the use of funds and
fund balances.
13. Termination ofDA_Agreement The DA Agreernenf between ABAG POWER "and "fhe
City'is hereby terminated.
14. Assignment This Agreement'shall not be assigned,- transferred hypothecated, or
pledged bythe City.
15. Amendment §' §.1 and 2 of this Agreement may be .amended at any time but. only
by a writing: signed by' both parties. Any other isection of this Agreement; may ,be.
amen'ded.only by a writing signed by both parties and all Third Party,Benefici`ar es.
16': Headi'h0s The descriptive headings "used ;in this Agreement are °for convenience only
and shall not control or affectthe, mea'ni'ng' or construction of any of "its provisions..
17. Controlling.'Law: 'This Agreement and all' matters relating to it shall be. governed by
the laws of'the State of'California.
18. Binding on.Successors: Etc. This.Agreementshall be;:.binding- upon.the successors
assigns,, transferees of ABAG POWER or the City as the case may This
provision shall not be construed as an authorization to assign or transfer this
Agreement other than as� provided above.
19, Severability Should any part of this Agreement be declared unconstitutional,
invalid, or beyond the authority ''of either party to enter into or carry, o s
'ut,,uch
decision shall not affect the validity of`the: remainder of this Agreement, which shall.
continue in full force and effect;' provided that, the ,remainder of this Agreement can,
absent "the. excised portion, be reasonably interpreted to give effectto'the'in,tentions
of the parties.
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Wind Up Agreement
Y disputes . regarding. p
20. Arbitration An: re ardin the nter retation, effects,ielleged breach or
powers and duties arising out of this Agreement will be submitted to binding
arbitration. An arbitration panel of (3) individuals shall be formed as follows:
a) Each'Third Party Beneficiary and ABAQ1 POWER -shall have the right to submit
the name and qualifications of an individual nominated for the panel. The
individual shall be a, member in .good standing of the State Bar of California.
ABAG POWER will compile a list of all such names, with the names of those
submitted more than once, appearing as many times as they were submitted
( List),.
b) Each. Third Party be which submitted .a name and ABAG POWER, if it
submitted a name shat
l,have the right to strike a name from °the List. The
order in which.the'Third Party Beneficiaries and ABAG POWER shall strike
names shall' be determined'by lot:
c) The striking process shall continue until only the names „of three. (3) qualified
individuals are left. They shall constitute, the arbitration' panel.
IN WITNESS WHEREOF the parties have executed this Agreement on the dates set forth
Dated: MEMBER:
Signature
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Print Name:
Title
Dated: ABAG'PUBLICLY OWNED ENERGY
RESOURCES (ABAG POWER):
Eugene Y. Leong; President
Approved as to Legal Form and content:
By:,.
Kenneth'K, Legal Counsel
ABAG Public Owned Energy Resources (ABAG POWER) -
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Wind.::Up,Agreement
ATTACH M ENT A.
Exhibit 1 ABAG 7 POWER. JOINT ;,POWERS AGREtMENT
Exhibit 2 DIRECT ACCESS ELECTRIC AGGREGATION AGREEMENT
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EXHIBIT 1
JOINT POWERS AGREEMENT
creating
ABAG POWER
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The li n ities tApndixo (Members ) entered into this JoiritPowers Agreement
( g reem ) 9 ABAG Pbi y Wned Energy Resources (AB'AG P01NER)�. All Members
public ublic entities or a,nized and, operating under the laws of 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,niore local public entities by
agreement to jointly,exercise any power common'to' the 'Members to enter
into this Agreement.
B. Public entities consume'ehergy in the forrn, lof natural gas °and /or electricity and use
telecommunications services in the performance of "their essential governmental functions.
C. Federal. and State,agenciesresponsible for' the regulation of the natural gas, electric and
telecommunications industries have determined that deregulation of these industries is in the
public interest:
D. Public entities have the. opportunity to secure energy supplies and- related services,,
manage energy consumption, obtain telecommunications services, manage the use of
telecommunications services -and determine conditions under which the private sector accesses•
and uses, in a ,cooperative -and coordinated manner, - public resources and infrastructure used in
the delivery of such energy and services.
E. The Association of Bay Area Governments (ABAG), at its sole .expense, has created and
implemented a natural ,gas aggregation to purchase natural gas and related services on behalf
of the .program participants and has formulated, but not yet implemented, a program to
purchase electricity through direct access and procure related services on behalf of public
entities )n'the Gas & Electric Company's (PG &E) service area.
F The for mation of ABAG POW the Members to "take advantage of the
opportunities described in paragraph D in such manner °and at'such time a's the Members may
decide.
G. The governing board of�-eaeh Member has .determi.ned.that it is in the +Member's best
interest and in the public interest that this Agreement be executed 'and that it is participating
as a Member'of,ABAG ",POWER.
Agreement
1. Formation'of ABAG POWER. Pursuant to Chapter 5; Division 7, Title 1 of the
Government Code' of the!, of California commencm with
State ( g '" ' Section 6500) (as amended
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Wind Up Agreement — Attachment A
from time! to time, the 3PA Law),, the Members hereby create a separate joint ,powers agency j®
which is named�ABAG POWER.
2. Parties to Agreement Each Member certifies that it ,intends to, and does, contract with
every other Member which pis 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 cert ifies 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.
I: Purpose. ABAG POWER will acquire, for use by its Members, energy including, but not
limited` to, natural gas and electricity-., and of telecomm services, abd'suchr 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, o'r,types of entities are eligible for. membership in.
ABAG POWER..
(a) ABAG,
(b) mem of ABAG, and
(e) 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�btherwise authorized or ,permitted.by the 3P,A;Lawoand` for .
purposes of and to the extent required'by Government:Code 6509, ABAG POWER is
subject 'to the restrictions upon the manner of exercising the powers ofthe Memberspecified
in the ,Bylaws.
6. Powers ABAG POWER is authorized, in its own name to do all acts. necessary to fulfill;
the purposes ofthis,Agreement referred to in Section 3 including, but not limited to, each of
the following;
(a) Make and ,enter into ,contracts ,
b obligaao iABAIGIPOWER bla adebt, liability or obli ation of . .liability or
O g , rov,ided that no deb
as separately agreed to by a Membera reeing to be so °`obli any Member except
g
9 gafed;
(c) Acquire, hold, construct, manage, Mai ntain or otherwise dispose;of real and
personal property by appropriate means;, excepting only eminentdoma.in;
(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 ot her 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'adrninistratorfor
ABAG POWER; and:
(1) Exercise all.:oth'er powers necessary and - proper to carry out the provisions of this
'Agreement:
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Wind Up Agfeement— ,Attachment A
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a
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Thesie,powerswill , be exercised "'in the manner -pro id'ed b''y applica
ri b[e law "and a's expressly s'et` .
forth this. A g reement.
7. Appoint e ht of Administrating 'Member
(a) ABAG is he'reb a y y� ppointed b the Merntiers to .execute the provisions of this
Agreement. and implement programs undertaken by ABAG POWER. The
Members. acknowledge that this is designation may cause potential conflicts of
interest to apse and waiye.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.
(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 from each member. 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,,z term of five (5) y ears unless' removed earlier by the
appointing :Member Directors may'serve.any.number ; of terms.
(c) Compensation Directors, and alternate directors are4hbt entitled to
Co m pensation. The'Board' may authorize reimbUrsement'of expenses incurred
by directors,or . dihktdits
(d)` Deleaation:of Powers ,The 'Board is; .pursuant to:Section 9(b), required to .
delegate certain powers.to specified committees a "n"d.,'may delegate other powers
to committees'butr may not'deleg, ate'the;pbw'"er'to,dismiss�ABAG or amend the
B y laws.
appointment a committee.
s : "All dir..ectors�_are ell ble fo for '
9. Committee g'
a Exe cunl the Bylaw bard may create ah 'Executive Committee as set
fo
ttee , The B
s
(b) Program Committees ThelyBoard, hereby; delegates the power to oversee
impiementation of °a program to a Program Commjttee'as set forth in the
Bylaws, provided each such director represents'a Member which is participating
'in the Program
(c) Other Comrnittees 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 a"re directors elected nor 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 .
asset forth in the Bylaws. The.duties of the officers described in the Bylaws.
The Chair- arid'Vice Chair assume their office upon elec €ion. The President, Chief
Financial Officer /Treasurer and Secretary assume the duties of their offices upon
4
WindUp.Agreement — Attachment A
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 neces_say convenient to carry out;thepurposes of this
Agreement.
11. ' Lim' itation on Liability of for Debts and Obligations of ABAG POWER Pursuant
to Government Code Section 650 8.1, the debts, liabilities „_and obligations of'ABAG POV1/ER.do
not constitute debts, liabilities, or obligations of any party, to this Agreement. A Member,may
separately .contract for or assume responsibility for specific debts, liabilities, or obligations of
ABAG' POWER.
12. Fiscal Year The first fiscal year of ABAG POWER is the period from the date.of'this
Agreement through December 31, '1998. Each subsequent fiscal year of ABAG POWER end's 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.Report s ... 'The Chief Financial 'Officer /Treasurer will cause an
annual financia d to be made by an 'independent certified .publi'c accountant with•'respect to
all ABAG receipts, ce'ipts, disbursements, other transactions, and entries,;, nto thebooks. 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 . manner as other administrative; costs.
15. Establishment and Administration of Funds
(a) ABAG POWER is responsible for the° strict accountability ofball funds and. reports
of alf.receipts• and disbursements. It will comply with every provision of law
relatin,g'to the- establishment and administration of'funds, particularly Section
6505 ofthe 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 ard conformity with
applicable law. The, Chief Financial Officer /Treasurer will procure a'fidelity bond.
6,os the purpose of this section' only,, all Members admitted after January
1 1999 are New Mem6e
(a) A public entity may be admitted as a New Member only upon atwo - 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, rif any', set by the Board.
17. Withdrawal 'Members, maywithdraw.'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 POW..ER, except',withdrawal under such
circumstances may be effected upon a two - thirds (2/3) vote of the Board.
Wind. UP Agreement — Attachment.A
1 ABAG POWER may expel or suspend a, Member by a two - thirds
(Z/3) vote of th"e Board fora 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
9
O nmin
ated kiowever; It cannot be terminated
a This A re ement conti ues until Ter
until such time as,all principal of °and interest�on bonds and other forms of
indebtedness• issued by ABAG POWER are paid ib full., Thereafter, this
Agreement maybe'terrninated by the written consent of two - thirds (2/3) ofthe
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
4
ABAG POWER. i
(b) After completion of °ABAG POWER'S, purposes, , Any surplus money on deposit in
Board is vested with all p owers of ABAG pONjeturned a s required by law. The
any fund or account of ABAG POWER 'will be r
p ER,I for the purpose of concluding
and dissolving' the „business affairs of'ABAG POWER.
20 . N a nd se Notice to, each .Member under this Agreement is.sufficient' if mailed to', the
p y o the 'Member's Director to their respective addresses on file with
ABAG POWER.
21. Prohibition Against Assignment No Member may - assign ;a right, claim, or interest it
may have under this Agreement.. No creditor, assignee or third. party .beneficiary of a Member
has a right, claim. or title to any part, share, interest, fund or 'asset of.ABAG POWER. However,
i nothing in this section prevents ABAG POWER from .assigning any interest or right it may have
under this Agreement to a third party.
22. Amendments This Agreement may be amended by an affirmative vote of the
governing bodies of [three = fourths (314)] 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 *hen the Member considers-,it. An amendment is to be effective
immediately unless otherwise designated: Appendix,A to the may be amended to
correctly list current Me7ibers 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 ibe illegal' or ii n conflict” with a law of the State of California or is otherwise
rendered ;unenforceable or ineffectual the validity of the portions, terms, conditions
and p- ro�i`sions is not; affected.
24. Liability ofzABAG POWER Subject to limitations thereon. contained in any trust
9
pursuant to which "financing of ABAG POWER are implemented,
y
funds'.of ABAG POWER, ' J ebe used to defend, indemnify, .a,nd hold harmless ABAG POWER
, any Memberj p p y g n behalf of "ggR�.for their
r officer of A
AG POWE
actions t ken withD the score l of their dut es whle actin e o
AG POWER.
'25. Governing Law, This - Agreement will be governed by and construed in accordance with
the laws of the State : of California.
„ r
26. Counterparts This Agreement may be executed in several counterparts, each of which
is an original and alh of which - constitutes but one and the same instrument:
6
Wind Up Agreement — Attachment A
27. Effective- Date This Agreement becomes effective and AB'AG POWER exists as a '
se agate ; p` ublic entity when the sum. of the electric'asage; for'all accounts committed by.all
p
Members under all Direct Access Electric Aggregation Agreements between the'M'ernber and
ABAG equals or exceeds three hundred seventy thousand (370,000) rnWh in'a one year period
IN WITNESS WHEREOF, 'the parties hereto have executed this Agreement as of the day and
year written below.
- LY
.'SA'M�PLE- 0
Date: B
APPROVED AS TO` LEGAL FORM
Legal Counsel_
Attest:
Wind Up,Agreement — Aftachm_enf'A
7
Wind Up,Agreement — Aftachm_enf'A
r. III
8
Wind Up Agreement Attachment A
EXHIBl , . 2' ,
DIRECT ACCESS
ELE
CTRIC-AGG9ZEGATION AG`ItEE'MENT
by and between' the
ASSOCIATION OF BAY AREA GOVERNMENTS
and
PUBLIC AGENCY
within the service °territory of
Pacific Gas & Electric Co.
dated ' 1998
This Direct-Access Electric Aggregation Agreement,;,ihereinaft y " Agreement".;: is made
and entered into as of this day of 199 'b and'between the
Association of.Bay Area Governments (ABAG),, a California joint powersagency, and
(Public Agency) a California
The parties hereby agree as follows;:
1. Eligibility Public Agency is a member or cooperating 'member of ABAG. ABAG will
provide directly, or at its option, will contract-,to provide for the'purehase and management
of a dire - ct access program (Electric Program) for members and
cooperating members of ABAG participating, In -said:: programl' Participant(s).
2. , Authorities AIL parties understand and, agree: that.the legal authority for the Program
is granted by.a id subject to the California Public Utilities Commission (CPU,C), as initially
authorized by „CPUC: Decision No,. 977 and as
'it may be, modified and /or augmented
subsequent CPU J `'dg cisi(ns; ordery ,ulations;, tariffs
through and'rulings of the
h subse
CPUC administrative law ud :.colleetivel Decision
2.1 Public,Agency 'c
is a ustom
y er of Pacific: Gasl & Electric (Utility) under the
uri of the CPUC Public g y ppomts
J ' 9 r enc a on beha ABAG a s� its excy sive agent to coordinate
its artici ation in the Electric Pro am lf, of,Public A g enc for the accounts listed in
Exhibit.A (Accounts); which is attached: hereto and .incorporated : herein. Public Agency
represents. and warrants any prior agreement(s) for. the purchase of electricity for the
effec i.ve'r u p r Commencement of Service as defined in Pa have h 3 1. ed,'will
Accounts from a sup t han, the Utilit'. which Public ;4 enc ma
be terminated.' ve on ragraph 31.
2.2 ABAG "has reviewed the Decision and other materials developed by, or under
the auspices of the' CPUC: ABAG,,believes-thatth'e transactions etforth, or contemplated, in
this Agreement will ; comply °with CPUC,requ;rements ;for direct access by electric consumers
set forth in Decision and current guidelines. ABAG has, simultaneous with this
A g reement commenced the process of :'creating an independent joint power's agency (ABAG
POWER) to aggregate the,Accounts of 'Participants ' fbr the purpose of direct access.
3. Background ;The CPUC : requires that�all Utility customers be eligible for direct
access by January 1, , 1 -9.98: 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 19.97. In Paragraphs 4 and 5: ABAG has listed all such
conditions of which ABAG is actually aware. ABAG':has used its best good faith effort to
enumerate in said paragraph 'all such .conditions .which might :ultimately be imposed on
direct access customers and-ESP''s, However, ABAG cannot represent or warrant that the
enumerated conditions represent all ,conditions currently contemplated by the CPUC or the
affiliated committees: subcornmittees:.or working groups responsible for developing'such
conditions , ..Further-,, ABAG ,cannot represent or warrant that, the: enumerated conditionsvill
remain uncha'nged,or that neW conditions will not be, imposed. Public- Agency hereby' agrees
to hold ABAG.. harmless -for any costs or direct or.consequential damages, incurred by Public
Agency, or "by anyone making a 'claim through Public Agency.
4. CPUC Conditions to Public Agency's Participation in Direct Access Public.Agency will
take suc action:as, may J be necessary to meet all conditions imposed on Public Agency to
participate in dir,.ect, access as �a customer, including but not limited to:
(a) , submit such :documents as may be required by the CPUC to the appropriate
entity,.
2
Wind Up Agreement — Attachment A
(b) provide ABAG with such 'i'nformati'on as may be required' by the, Direct Access. •
Service Request. (bASR)
(c) conform this Agreement to all req,u_irements' imposed bythe CPUC* for written
contracts between direct; access customers,and. ESP',s,
(d). install meters capable of providing hourly data and required data,
communications'capabilities (Hourly'Meters) for each Account,
(e) pay, or caused to be paid, all stranded costs associated with the Utility meter
replaced under section (d). of, this paragraph, and
(f) pay, or cause to. be paid all outstanding'balances f6r'611 Accounts.
Under current CPUC proceedings, metering requirements: may be met ,by�a customer (a)
requesting the Utility Distribution Company (UDC) to install Hourly. Meters, (b') installing
Hourly Meters, or (c) causing Hourly:Metera to be; installed by third parties (including the
ESP). ABAG anticipates:issuing a Request for Proposals'to install Hourly, for all, or °r
some of`the accounts previously'identified to ABAG as.'accounts which potential participants
in. the, Electric. Program wished to, aggregate. The choice of how `Publi _;Agency will fulfill the
metering requirement'and whether Oil ,Parti'cipants must make the same election for their
respective Accounts will be mutually decided by ABAG and, Public Agency at ,a ;later date,
"based on (1) the probability of installing Hourly Meters for all Accounts by January 1, 1998,
or the earliest `possible date thereafter; (2) , any additional' costs incurred to install' Hourly
Meters 'bysuch date, ,and (3) supply: of Hourly Meters.
5. CPUC Conditions Precedent to ABAG's "Obligations -ABAG w ill 'take such action'as
may be necessary•to meet'all conditions imposed, on ABAG' to pa`rhicipate 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
Agreem
(`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) tcomply with ESP Credit Requirements..
The CPUC has: not established :ESP Credit Requirements: ABAG anticipates meeting ESP
Credit Requirements through the establishment of th;e Credit Reserve fund described in
Paragraph 19.
6. Electric Supply Public :Agency,sub mitted,to ABAG an expression of Interest in
el ctric usage information by.authoh
on to ABAG After ABA is ued a Re r uest for Prolfo a;histori'rov
Utilit P
G iss q p is 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 M.OU with a third. °supplier.
G
ABA anticipates solicitin
p " g proposals for,additionalelectric supply in Fall /Winter 1997.
Public Agency acknowledges thatIn orderto meet. Public, Agency's electric needs.ABAG will
e n ontrac will authorize electric supply products (Contracted. Supply) on behalf of
g en y purchases of'electric supply on the spot- market (Spot'
Supply) and, sales of excess Contracted' Supply on the spot market or to the - supplier.:
•
Wind. t?p Aa Demerit - Attachment A
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 metering options, and electric supply acquisition and
aggregation strategies;
7.2 Negotiate prices and quantities of an electric supply, scheduling services,
billing services, and other services; •products or equipment reasonably necessary for Public
Agency's participation in the Electric Program through processes which may include but are
not limited to invitations to: bid requests for proposal or competitive negotiations.
8 . Pir
thereto A ccess
is Imp l em en tation :: For each Account for which 'ABAG and Public Agency
fulfills
graphs 4 and 5 and'for which the 'UDC authorizes the
commencement of direct access, ABAG will provide or cause to be provided an electric
supply and perform, or cause to be performed, the .following'
(a) scheduling
(b) transmission;
(c) distribution;- ,
(d) billing;
(e) Hourly Metering;
(f) general, administrative, management,'fiscaI and consultation services
necessary or convenient, for the Electric Program:
ABAG is negotiating 'contracts for the,provision of scheduling and billing services.
Transrnissionnd di king ptions and'the method for selecting the means through regulated
on services will be rovided' to'Public Agency
tariffs. Hourly Metering of providing Hourly
Metering is described in Paragraph 4.
9. Agency Relationship :' Public,Agency aufhor.izes ABAG to act asJts exclusive agent to
implement the Electric Program forIthe- 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, fully power to execute all docurne'rits requi "site , and .necessary to be
done in all imatters °relating to th'e'', purchase, sale, sched`ulind, transmission,. distribution,
metering and billings of electricity for the Electric Program, including without limitation, the
power to release Public.Agency's historic and current electric usage data to third party
vendors, and "service suppliers.
10 Notification of Changes `in Accounts Public,Agency will notify'ABAG of changes in
Public Agency's?facilities �or operations', which are reasonably expected to increase or
decrease 'the'consumption of , electricity by more than ten !per_cent (10 %) .as compared to
historical''levels.- Public�Agency may add accounts to Exh` bit:A upon prior written notice to
ABAG and the submission of the appropriate, form required 'by the CPUC or the Utility.
.
Public Agency ,ma y delete; accounts. fron;Exhibit A only 'upon written consent of ABAG, which
consent will not be unreasonably ;withheld, except that Public Agency ,rnay delete accounts
without ABAG s.consent Public Agency abandons the facility or transfers the facility to
another entity. ,. .
1.1.. Rate Schedule "As "soon as practicable after ABAG has fixed'the costs" of the
Contracted Supply,:schedufing, transmission, distributions billing, and if applicable, Hourly
Metenng,; serui ices; ABAG,wi.11 establish up to ten (10) rates each expressed as $x.xx /kWh
4
Wind,Up Agreement,— Attachment A
y
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 metering options, and electric supply acquisition and
aggregation strategies;
7.2 Negotiate prices and quantities of an electric supply, scheduling services,
billing services, and other services; •products or equipment reasonably necessary for Public
Agency's participation in the Electric Program through processes which may include but are
not limited to invitations to: bid requests for proposal or competitive negotiations.
8 . Pir
thereto A ccess
is Imp l em en tation :: For each Account for which 'ABAG and Public Agency
fulfills
graphs 4 and 5 and'for which the 'UDC authorizes the
commencement of direct access, ABAG will provide or cause to be provided an electric
supply and perform, or cause to be performed, the .following'
(a) scheduling
(b) transmission;
(c) distribution;- ,
(d) billing;
(e) Hourly Metering;
(f) general, administrative, management,'fiscaI and consultation services
necessary or convenient, for the Electric Program:
ABAG is negotiating 'contracts for the,provision of scheduling and billing services.
Transrnissionnd di king ptions and'the method for selecting the means through regulated
on services will be rovided' to'Public Agency
tariffs. Hourly Metering of providing Hourly
Metering is described in Paragraph 4.
9. Agency Relationship :' Public,Agency aufhor.izes ABAG to act asJts exclusive agent to
implement the Electric Program forIthe- 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, fully power to execute all docurne'rits requi "site , and .necessary to be
done in all imatters °relating to th'e'', purchase, sale, sched`ulind, transmission,. distribution,
metering and billings of electricity for the Electric Program, including without limitation, the
power to release Public.Agency's historic and current electric usage data to third party
vendors, and "service suppliers.
10 Notification of Changes `in Accounts Public,Agency will notify'ABAG of changes in
Public Agency's?facilities �or operations', which are reasonably expected to increase or
decrease 'the'consumption of , electricity by more than ten !per_cent (10 %) .as compared to
historical''levels.- Public�Agency may add accounts to Exh` bit:A upon prior written notice to
ABAG and the submission of the appropriate, form required 'by the CPUC or the Utility.
.
Public Agency ,ma y delete; accounts. fron;Exhibit A only 'upon written consent of ABAG, which
consent will not be unreasonably ;withheld, except that Public Agency ,rnay delete accounts
without ABAG s.consent Public Agency abandons the facility or transfers the facility to
another entity. ,. .
1.1.. Rate Schedule "As "soon as practicable after ABAG has fixed'the costs" of the
Contracted Supply,:schedufing, transmission, distributions billing, and if applicable, Hourly
Metenng,; serui ices; ABAG,wi.11 establish up to ten (10) rates each expressed as $x.xx /kWh
4
Wind,Up Agreement,— Attachment A
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 AB'AG's, fees for services rendered under this Agreement.
12, Invoiced .Amounts ABAG will ,invoice Public Agen and Public Agency will pay.,
monthly in idvance.an amount based;�on ABAG's estimate of Public Agency's anticipated
usage of electricity based on the 'Rate S,chedule'for:each Account (Invoiced Amounts).
13. Contingency Reserve Based on the size of the aggregation, ABAG will establish a_
prudent Conti ngency�Reserve'for the :purpose of paying,contingent transmission and /or
distribufion •charges (e.g. imbalance charges.and congestion management charges)
(Contingent Charges) plus an amount'to cover ABAG's ; prudent cash flow requirements`
based on ABAG's reasonable estimates;of' late or delinquent payments from Participants.
Public.Agency'will pay.a portion of the'Contingency. Reserve in.'a "ratio in which the
numerator is;the! total 'estimated usage for all its Accounts arid the denominator is the total
estimated usage for all accounts in the aggregation (Contingency. Reserve Surcharge).:
The,
timing of he Contingency Reserve,S payfiient(s): (e.g. up front lump sum or
staggered even or uneven monthly amounts) will be determined by ABAG.
14. Credit`Reserve ;Based on the size of the aggregation, ABAG wilkestablish:'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 total estimated usage for all 'its ,Accounts: and the denominator is'the total .
estimated usage! for all accounts i'n the aggregation (.Credit Reserve Surcharge). The timing
of the Credit - 'Reserve Surcharge payment(si)' (e.g.. up front lump sum or staggered even or
uneven monthly'amounts) Will be determined'by ABAG.
15. Invoices /Actual Charges For each Account ,ABAG will include, in" each rnonth'ly
e Public Agency the cycle ;actual usage during 'the, meter cycle, and fees for
actual '
invoic
Con`tin electricity consumed based on the Rate Schedule; plus, an allocated portion of .
gent - Charges 'iicur.red, '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 A rippntS; cumulative Actual Charges, and:credlt' ",balances as
calculated pursuant to ,1T. Contingency Reserve Surcharges . Credit Reserve
i
Surcharges will ether be se aratel
9 _ ,p y invoiced or included in one! i,nvoice; based -.on ABAG's
decision regarding the timing of such surcharges and its agreement with the, billing agent.
16. Payment InVoi'ces will be directed Ito; and payment is to be made by Public Agency
directly .to the °escrow account - designated.,pursuant.' to Paragraph 21 of thisiAgreement.
Payment o'f the Invoiced..Amount is due; immediately upon receipt of the: invoice. Late
payment charges at: the rate of one and a half percent (1.5 per month calculated rdaily
on the :outstanding, balance will be imposed, commencing on the thirty- first'(31st) day after
the ma'iling,date of the invoice. Late payment charges may, at ABAG'ssole'discreti'on, tie
debited,against Public Agency's Credit Account as defined -in. Paragraph 17'.
17, r Credit Account For. each invoice, ABAG= will calculate (a) the difference between the
Invoiced Amount and the ,Actual ;Charges for the meter cycle,,and (b) the difference,
between the cumulative total of the Invoiced Amounts and-the cumulative total of;ActuaI
Charges (Credit Account)'. Public Agency recognizes that'the Credit Acebunt calculation
of payments, credits, debits "and charges made, pursuant to this Agreement and that ABAG
quired to establish actual separate fund' accounts with, monies on behalf of or
in the name o'f'PUblicAgency. Unless the parties .otherwiseagree,`ABAGwill; r'e'fund tof
g y q P. P earn on all
Public A enc 'an. amount e ual to the Credit Account p lus a ortion :of interest earn
Wind Up Agreement - AttachmentA
Cr ounts edit Acc in the Electric Program said portion to be 'deter,rnined by the Electric
T.
u, u 4 Pro gram I ommittee ,
0
1 � ��" oreeBmenPOUVER, within ninety (90) calendar days after-termination or
g
I
cancellation of this A
18.. Contingency* Reserve Fund Public Agency acknowledges,that..during the term of
this Agreement ABAG`has °the right to use monies'iri the Contingency Reserve Fund to pay
Actua I Charges g incurred b, Participants in the'Electric Program, as such Actual Charges
y , Parfici p , a
become due. ABAG will deposit into th'e Contingency Reserve Fund any Invoiced Amount 11
payment, or portion thereof, which would, absent draw on the .Contingency Reserve Fund
described in the preceding, sentence, have been applied towards payment of the Actual
Charges described in the preceding sentence. Wi,thirrthe 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 incurredby Public Agency,-, plus any Invoiced.Amount(s) or portion thereof, made
by Public Agency and deposited into the Contingency Reserve- Fund' as provided for in this
Paragraph (Contingency Reserve Fund' Credit),. Unless th —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'POW.ER, within ninety (90) calendar days after
termination or cancellation of this Agreement.
19. Credit Reserve,�Fund ABAGI does not anticipate any draws on the Credit Reserve
Fund. Unless the; parties otherwise agree, ABAG will refund; to. Public Agency its cumulative
Credit Reserve Surcharge payments plus a portion•of interest.earned on the Contingency
Reserve Fund, said porti,onito be determined by�the Electric Program'Committee of ABAG
POWER, within ninety (90) calendar days after termination of thi's or'the lifting
q I Whichever is
,. earlier.,.; ,
of the requ irement to maintain such, a fund; c
with the terms employed by ABAG, n. addition onto an the a emedy it may have consistent
hereunder
r
ereunde
and notwithstanding the. existence ofany 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.:, reasonab,,let!cha.r,,ges associated with demands' for payment on late
accounts as well as reasonable "charges associated with suspension and resumption of
service .hereunder:
•
21. Pa meet of.Act
y � ual Charges Subject to the terms and conditions of this Agreement,
ABAG agrees to deposit' all,Invoiced Amount payment and; pay Actual Cha'rges-as follows:
21.1 An.escrow or loek,box`account for the purposes of'receiving Invoiced Amount
, payments by Participants and, paying Actual Charges wilLtie- 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'frorn the escrow or lock box
account, and :such will only beto those a, ees identi
p . y fled in the 'escrow'instructions and only
for Actual Charges.
22. Disputes Reoarding_Actual Charges Any disputes between the parties regarding the
amount of any'Actual 'Charges will-be resolved pursuant to Section H of Exhibit B to this
Agreement and .the Credit Account,, as defined in Paragraph 9.3 will' be adjusted as soon as
practicable to reflect the resolution -of the dispute.
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Wind Up Agreement — Attachment A
23. Cancellation
2.3.1 Cancellation by Public Agency- Commencing no earlier than one (1) full, year
from the'Commenceme'nt Date,, Public Agency may only withdraw or cancel this Agreement
consistent with the rules and regulations promulgated by the CP0,C 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 effecfi',ve December 31 of that current year..
23.2 Cancellation by ABAG Actions by the, utilities and /or CPU.0 to develop rules
which are in conflict With sound busing p preve ABAG l nt from unnecessary risk on either
a to this, Agreement, or. substantially om 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 diligentlyto 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 Prograrriv Committee will
provide policy direction for the- Electric P.rogIram, 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.
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25. Approvals The PublicAgency Representative may grant any approval or give any
direction required by this Agreement, in writing
or orally, Written approval's. or directions
y y pprovals w'
may be transmitted..physicall ,, by facsimile or electronically. Oral' a ill be
confirmed in writing by either party.
26: Attorneys'' Fees In the event .either party invokes! its right to, °arbitration under '
Section 'H of Exhibit _B due to an 'alleged breach of this Agreement, the prevailing party will
be entitled to .recover reasonable attorneys' fees and costs as determined by the arbitrator.
27 Ownership of Files Reports Photographs and Related Documents Upon.
termination of the: Agreement,, any,and; all files, reports, photographs, plans,!specifications,
drawings, data, maps, models and related documents respecting in °any way the "subject
matter of this Agreement, wheth. er prepared by.ABAG', the Public Agency or third parties
and in whatever media they are stored will "r6maln,or will become the property of the Public
Agency and the Public Agency will acquir&title to 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 terholoyees from and against all claims; damages,
losses and expenses including attorney's ` fees,, arising outof or resulting from the
performance or non - performance of the services required bythi's Agreement, unless such is
caused by fraud, .gross negligence or intentional misconduct of ABAG, its directors, its
member agencies, 'its agents or its employees.
29, Assignment /Secur'ity Arrangements Public Agency hereby ackhowiedg '
es that ABAG.
will assign all. its ri'gl ts'and`'obligations;unde this`Agreement, exceptAhe rights'of'ABAG' a'nd
its directors, its member agencies, its agents and its: employees: to indemnity under •
7
Wind Up Agreement — Attachment A
Paragraph 28, to ABAG POWER upon the formation-bf ABAG Nothing in this
Agreement, impairs' ABAG. POWER's rig to have ABAG perform ,some or.all of the
obligations p6rsuahtt'&,.a separate Agreement
30. Notices: - The following addresses for the giving of notices and will be:
Public A enc Notices
Name:
Add ress:
Telephone No.:
Facsimile No.:
Email:
Attn.:
Public^Aciehcy Irivbicing Address
Name:
Address_
Telephone, No
Facsimile No.:
Email:
Attn.:
ABAG Notices
ABAG
P. 0. Box 205,0
Oakland, CA 94604-2050
Assistant to the'Executive Director
Telephone 1\16:,
Facsimile NO: 510-464-7197 . 0
31. Commencement bate and Term: This Agre.eMenti s effett ve, immediately upon
execution 'and, and the. executioh; ,land .. delivery of counterparts of this
Agreement" b.y other Pa rtic-ipa,nts with accounts which when % bined" with the Accounts
totals an estimated three h"undred seventy thousand (37 ;b0'0) in'a t one (1) year
perio � d., The t,,Date for Public A ehcy is the latest date 9
its, J ", I, ' which any'bne
Acc6bnts placed'i'n -direct access status by the UDC. This Agreement terminates one
full year after 'th,e,, latest "Com- mencement Date for any ;Participant.
32, Severabilitv-;, If :any provision of this Agre application of any such
provision. will' be held by a co urt of competent jurisdiction to
a ny I ' . jurisdiction - I i be invalid, Void, or
- unenforceabl�,tbl�any, ektent,!':!thIE� remaining provisions of this Agreement ,and the application
thereof will 'rema ',i,"n: I full fo'rce and' effect 'and will notl,6e a4ecte"d, impaired, or invalidated.
33. Caption The captions a0ematter of
appearing in this Agreement are inserted as a m
1 7 11 i
1 J -
convenience .an' in nb'Way`defih6 orlimit the provisions of this Agreement.
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Wind Up Agreement - Attachment A
34. Other Contract Provisions This Agreement will, b "e subject to "the other stand -a rd
provisions set forfh..in the zttached Exhibit B, which is, incorporated by this reference.-
IN WITNESS .WHEREOF, the parties have hereunto set their hands effective the date and
year first above written,
- SA M P 0 N,, Y
ASSOCIATION OF'B'AY AREA GOVERNMENTS
By: Date_
Eugene Y. Leong, Executive Director
Approved as to legal form and content:
By: - Date;
Kenneth K. Moy, Legal Counsel
PUBLIC AGENCY'
By: Date:
Approved ;as to legal form and content:
By: 'Date:
Account Number
1
9
Wind Up Agreement;:- Attachment A
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DIRECT'ACCESS AGGREGATI ®'N AGREEMENT - EXHIBIT A
List of Accounts
DIRECT ACCESS AGGREGATION AGREEMENT'- EXHIBIT ,
STANDARD CONTRACT PROVISIONS
A. Time of Essence Time is of the essence in this Agreement.
B. Waiver The waiver by either party of :a each 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 o„r a, diff4rent provision of this Agreement.
C. Controlling Law 'This,Agreement and all matters, relating to it shall be governed by
the laws of the State of California.
aassigns, or of P,BAG or.Publ cAAgency as -`the Ic m
'be b inding upon the successors,
case ay be' provision shall
not be construed as an authorization to assign, transfer, h",ypothecate, or pledge this
Agreement other than as;'provided above.
E. _ Records /Audit ,ABAG shall keep , complete and accurate books and records of all
financial aspects of its relationship with Public Agency ,in ,accordance with generally - accepted
accounting principles. ABAG shall permit authorized representatives , of Public Agency
and /or any of Public Agency's governmental grantors to 'inspect, copy, and, audit all data
and ,records of ABAG relating to kits performance of services under this Agreement. ABAG
shall maintain all ,such data.tand; records intact for a period of. three (3) years after the date
that services are cornplete'd hereunder or this Agreernent'is otherwise terminated.
F. Prohibited Interest -i ABAG's officers, employees or agents shall neither solicit nor
contractors,-or tUo; anything of monetary value from contractors
potential
p arties to subcontracts.
G. Insurance 'Requirements
times during the life of s Agaee', at its own expense; obtain and maintain'in effect at all
1
ment the followin g insurance:
(a) Workers' compensation insurance 'as required by 'law.
(b) Comprehensive general liability insurance coverage of One..Million Dollars
($1,000,000,) "the aggregate for products and /or completed' operations and
One: Million Dollars ($1,000;000) 'per occurrence for automobiles.
(c) Professional ,liability insurance with minimum liability limits of Two Million
Dollars ($2,000,000) in the aggregate.
(2) All ABAG!s insurance policies shall contain an endorsement providing that
written notice shall be given to Public Agency at least thirt y (30) days prior °to termination,
cancellation, or reduction of coverage in the policy or policies, and all policies shall be
ca rrie by an insurance company or companies acceptable to Public Agency.
(3) In addition, eadh. policy or policies of insurance described in subparagraph (2)
above will contain an endorsement ,providing for inclusion of Public-Agenc y and its
directors; officers; agents,, and zemployees 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.
10
Wind,Up Agreement — Attachment A
O 4 Promptly u execution of this Agreement, ABAG will deliver to Public
p Y P
on
Agency certificates of insurance evidencing the above insurance coverages. Such certificates
will ma'ke•reference to all provisions or endorsements required herein and will be signed on
behalf of`the insur by an authorized representative thereof: ABAG agrees thaf.at, any
time, upon written request by Public: Agency to make available copies of such. policies
certified by an representative of the insured,
(5)3 The foregoing requirements as to types an. d limits of insurance coverage to, be
maintained,b ABAG and a policies by Public-' Agency are not intended to, and"will
limit or' ualif the '
y mane PP oval of
Y .� r
not in an ,` er q_ y liabilities and obligations otherwise assumed by ABAG
pursuant 1to, this Agreement, including, but not limited , to ; liability assumed pursuant to
ABAG's insurance policies under Subsections: (1)`(b) of`this section.
'(6) ABAG will require all subcontractors to comply :with the insurance,
requirements described in Section 6(1)`(a) - (c), inclusive.
P �Y 9 P g g
H. Arbitration An dispute between ABAG, and the Public Agency re ardin the
,
interpretation, effects alleged breach or owers and duties arising out of this Agreement
will be submitted to binding arbitration'. 'The arbitrator will, be selected by agreement
between the by lot.from a list of'up.to six (6) arbitrators with each party submitting
u to three 3 ) arbitrators..
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11'
Wind`Up Agreement — AttachMent,A