HomeMy WebLinkAboutCC Resolution 10693 (ABAG)RESOLUTION NO. 10693
A RESOLUTION AUTHORIZING AN AMENDMENT TO EXTEND THE CORE
NATURAL GAS SALES AND AGGREGATION AGREEMENT BETWEEN THE
CITY OF SAN RAFAEL AND OTHER LOCAL GOVERNMENT AGENCIES AND
THE ASSOCIATION OF BAY AREA GOVERNMENTS (ABAG)
WHEREAS, the Association of Bay Area Governments (ABAG) formed a Power
Purchasing Program to aggregate the natural gas needs of ABAG members and
cooperating members in 1996 and currently acts as a core transport agent on behalf
of such members to deliver natural gas and related services. ABAG has formed the
POWER (Publicly OWned Energy Resources) Executive Committee comprised of
representatives from each participating member or cooperating member and grants said
committee the power to oversee the Program; and
WHEREAS, the City of San Rafael currently contracts with ABAG through the
Power Purchasing Pool Program and has done so since fiscal year 1996/97; and
WHEREAS, the Power Purchasing Program has achieved an average savings of
5% over the Pacific Gas & Electric Company's (PG&E) tariff rates since inception; and
WHEREAS, the original agreement expired July 1, 1999 and ABAG seeks to
amend the original agreement retroactively for a term of 3 years; and
WHEREAS, the proposed 3 -year term will enable ABAG to purchase natural gas
in response to favorable market conditions without the constraint currently imposed by
the agreement's annual expiration date; and
'J 11 11Ii1111
WHEREAS, it is in its best interest of the City of San Rafael to continue to
participate in this program.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
San Rafael hereby authorizes the City Manager to sign an amendment that would
extend the above described agreement retroactively from July 1, 1999 through June
30, 2002.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of the City Council of said City held on Monday the 7`h day of August, 2000, by
the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Miller, Phillips and Vice -Mayor Heller
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
DISQUALIFIED: COUNCILMEMBERS: Mayor Boro (due to conflict of interest)
%h.
JEAAKE M LEONCI I, City Clerk
CORE NATURAL GAS SALES AND
AGGREGATION AGREEMENT
By and Between
ABAG POWER
and
(Public Agency)
Amended
July 1, 1999
For service within the territory of
Pacific Gas & Electric Company
CORE NATURAL GAS SALES AND AGGREGATION AGREEMENT
This is the First Amendment to the Core Natural Gas Sales and Aggregation Agreement (Agreement),
dated the day of 199 , by and between the Association of Bay Area
Governments, a California joint powers agency, (ABAG), and , a California
, (Public Agency). Upon execution by both parties, this Agreement becomes effective
July 1, 1999.
The parties hereby agree to amend the Agreement as follows:
A. ABAG is replaced by ABAG Publicly OWned Energy Resources (ABAG POWER).
B. Paragraph 7 of the Agreement is replaced by the following:
Term: Subject to the provisions of Paragraphs 12 and 13 hereof, and receipt of timely
notifications of alternative arrangements, this Agreement shall be in full force for a three (3) year
term commencing July 1, 1999. Subject to Paragraph 13, the term of this Agreement shall be
automatically extended for additional three-year periods upon ABAG POWER's submission to
Public Agency of written notice in conformity with Paragraph 11 and provided that ABAG
POWER is not in breach of this Agreement, no later than May 1 of each year.
C. Paragraph 8 of the Agreement is replaced by the following:
Fees: The operational fees for all services described in Paragraphs 3 and 5 shall be established
by the ABAG POWER Board of Directors, hereinafter "Board".
D. Paragraph 11 of the Agreement is replaced by the following:
Gas Prop -ram Pricing:
11.1 Allocation. The gas charges to the participants will include the (a) cost of the gas
commodity (gas charges), (b) applicable utility transportation charges, and (c)
administrative costs. Gas charges are the product of a participant's usage times the unit
rate for gas for each month. The unit rate is the total monthly cost of natural gas
purchased for all participants at the supplier contract price divided by the total monthly
usage of participants. Transportation and administrative charges will be allocated to each
participant based on gas usage.
11.2 Annual Report. Each year, ABAG POWER will provide each participant with a report
showing that participant's total costs for natural gas, transportation services and
administrative fees at a per therm cost for each category.
11.3 Gas Purchasing. Under the policy direction of the ABAG POWER Executive Committee,
the ABAG staff will regularly canvas the natural gas market and enter into contracts to
acquire natural gas for, among others, fixed price, indexed price and variable price with a
minimum and/or maximum. ABAG staff, under the policy direction of the ABAG
POWER Executive Committee, has the power to execute all contracts reasonably
necessary to deliver natural gas to each participant.
E. Paragraph 13.1 of the Agreement is replaced by the following:
Cancellation by Public Aeencv: Public Agency may cancel the Agreement by giving ABAG
POWER written notice by June 1 of its intent to terminate on June 30 of the final year of the
three (3) year term.
IN WITNESS WHEREOF, the parties have hereunto set their hands effective the date and year first
above written.
ASSOCIATION OF BAY AREA GOVERNMENTS
By: Date: �� o c
tugene %Leong,xecutive Direct '
Approved as to legal form and cont t:
B ' Date: ' ov
By: �: ZS/
Kenneth y-, Legal Counsel
ABAG PUBLICLY OWNED ENERGY RESOURCES
By�% Date:
Eugene . Leong resident
Approved as to legal form and cont t:
By: ('r / / Date:
Kenneth K. &-, Legal Counsel
PUBLIC AGENCY
CITY OF SAN RAFAEL
By: Q,17x� Date: 8/7/00
ROD GOULD, Cit Manager
Approv • 7to o nd content: ATTEST: A
JE NNa E M. LEO NI,
City Clerk
B �'�, Date: 8/7/00
KY 1. G 1AN11, it Attorney
Account Number N/A
I:\AIIStaff\KENNETHM\P3\K\Natural Gas\CoreAgg Agr Amd 99.doc
JOINT POWERS AGREEMENT
creating
ABAG POWER
The public entities listed in Appendix A (Members) entered into this Joint Powers Agreement
(Agreement) creating ABAG Publicly OWned Energy Resources (ABAG POWER). All
Members are public entities organized and operating under the laws of the State of California and
each is a public agency as defined in California Government Code Section 6500.
RECITALS
A. Government Code Sections 6500-6515, permitting two or more local public entities by
agreement to jointly exercise any power common to them, authorizes the Members to
enter into this Agreement.
B. Public entities consume energy in the form of natural gas and/or electricity and use
telecommunications services in the performance of their essential governmental
functions.
C. Federal and State agencies responsible for the regulation of the natural gas, electric and
telecommunications industries have determined that deregulation of these industries is in
the public interest.
D. Public entities have the opportunity to secure energy supplies and related services,
manage energy consumption, obtain telecommunications services, manage the use of
telecommunications services and determine conditions under which the private sector
accesses and uses, in a cooperative and coordinated manner, public resources and
infrastructure used in the delivery of such energy and services.
E. The Association of Bay Area Governments (ABAG), at its sole expense, has created and
implemented a natural gas aggregation to purchase natural gas and related services on
behalf of the program participants and has formulated, but not yet implemented, a
program to purchase electricity through direct access and procure related services on
behalf of public entities in the Pacific Gas & Electric Company's (PG&E) service area.
ABAG POWER JPA
COPY
F. The formation of ABAG POWER enables the Members to take advantage of the
opportunities described in paragraph D in such manner and at such time as the Members
may decide.
G. The governing board of each Member has determined that it is in the Member's best
interest and in the public interest that this Agreement be executed and that it is
participating as a Member of ABAG POWER.
AGREEMENT
1. Formation of ABAG POWER. Pursuant to Chapter 5, Division 7, Title 1 of the
Government Code of the State of California (commencing with Section 6500) (as
amended from time to time, the JPA Law), the Members hereby create a separate joint
powers agency which is named ABAG POWER.
2. Parties to Agreement. Each Member certifies that it intends to, and does, contract with
every other Member which is a signatory to this Agreement and, in addition, with such
other Member as may later be added as Members under Section 16. Each Member also
certifies that the deletion of any Member from this Agreement does not affect this
Agreement nor each remaining Member's intent to contract with the other Members then
remaining.
3. Purpose. ABAG POWER will acquire, for use by its Members, energy including, but
not limited to, natural gas and electricity, and of telecommunications services, and such
other services and goods as may be necessary or convenient to optimize costs savings and
to manage the use or the supply of energy or telecommunications services.
4. Membership. The following entities, or types of entities, are eligible for membership in
ABAG POWER:
(a) ABAG,
(b) members of ABAG, and
(c) any other public entity so long as such public entity is a cooperating member of
ABAG at the time it joins ABAG POWER.
5. Limitation. Except as otherwise authorized or permitted by the JPA Law and for
purposes of, and to the extent required by Government Code Section 6509, ABAG
POWER is subject to the restrictions upon the manner of exercising the powers of the
Member specified in the Bylaws.
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
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(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. ADDointment of Administratine Member.
(a) ABAG is hereby appointed by the Members to execute the provisions of this
Agreement and implement programs undertaken by ABAG POWER. The
Members acknowledge that this designation may cause potential conflicts of
interest to arise and waive any liability on the part of ABAG arising out of any
such conflict of interest. ABAG may not be removed as the administrating
Member except by reason of its fraud, gross negligence or gross mismanagement
or by a vote of two-thirds (2/3) of the authorized directors of the Board.
3 ABAG POWER JPA
(b) ABAG POWER will compensate ABAG for services rendered.
8. Board of Directors.
(a) Directors and Alternates. The Board is comprised of one director and, in a
director's absence, an alternate director 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 a term of five (5) years unless removed earlier by the
appointing Member. Directors may serve any number of terms.
(c) Comoensation. 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 Emnlovees.
(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 Liabilitv of Members for Debts and Obligations of ABAG POWER.
Pursuant to Government Code Section 6508.1, the debts, liabilities, and obligations of
ABAG POWER do not constitute debts, liabilities, or obligations of any party to this
Agreement. A Member may separately contract for or assume responsibility for specific
debts, liabilities, or obligations of ABAG POWER.
12. Fiscal Year. The first fiscal year of ABAG POWER is the period from the date of this
Agreement through December 31, 1998. Each subsequent fiscal year of ABAG POWER
ends on December 31.
13. Budset. 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 two-thirds (2/3) vote of the Board.
18. Exnulsion/Susnension. ABAG POWER may expel or suspend a Member by a two-thirds
(2/3) vote of the Board for a breach of this Agreement or the Bylaws determined by the
Board to be a material breach. The procedures for hearing and notice of expulsion of a
Member are provided in the Bylaws.
19. Termination and Distribution.
(a) This Agreement continues until terminated. However, it cannot be terminated
until such time as all principal of and interest on bonds and other forms of indebtedness
issued by ABAG POWER are paid in full. Thereafter, this Agreement may be terminated
by the written consent of two-thirds (2/3) of the Members; provided, however, that this
Agreement and ABAG POWER continue to exist after termination for the purpose of
disposing of all claims, distribution or assets and all other functions necessary to
conclude the obligations and affairs of ABAG POWER.
(b) After completion of ABAG POWER's purposes, any surplus money on deposit in
any fund or account of ABAG POWER will be returned as required by law. The Board is
vested with all powers of ABAG POWER for the purpose of concluding and dissolving
the business affairs of ABAG POWER.
20. Notices. Notice to each Member under this Agreement is sufficient if mailed to the
Member and separately to the Member's Director to their respective addresses on file with
ABAG POWER.
21. Prohibition Against Assignment. No Member may assign a right, claim, or interest it
may have under this Agreement. No creditor, assignee or third party beneficiary of a
Member has a right, claim or title to any part, share, interest, fund or asset of ABAG
POWER. However, nothing in this section prevents ABAG POWER from assigning any
interest or right it may have under this Agreement to a third party.
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. Severabilitv. 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. Liabilitv 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. Governine Law. This Agreement will be governed by and construed in accordance with
the laws of the State of California.
26. Counternarts. 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 when the sum of the electric usage for all accounts committed by
all Members under all Direct Access Electric Aggregation Agreements between the
Member and ABAG equals or exceeds three hundred seventy thousand (370,000) mWh
in a one year period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year written below.
Date: Julv 20, 1998
APP ' ' O LEG FORM
Legal Cou
Attest:
JE NE M. (EONCINI, City Clerk
By: Patricia J. Roberts,
Deputy City Clerk
CITY' OF
By:
ROD GOULD, City Manager
ABAG POWER JPA