HomeMy WebLinkAboutReso 2019-179RESOLUTION NO. 2019-179
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AND AUTHORIZING THE
EXECUTION OF THE JOINT EXERCISE OF POWERS
AGREEMENT CREATING THE SAN DIEGO REGIONAL
COMMUNITY CHOICE ENERGY AUTHORITY
WHEREAS, Section 6500 et seq. of the Government Code authorizes the joint exercise by
two or more public agencies of any power common to them as a Joint Powers Authority (“JPA”);
and
WHEREAS, Public Utilities Code Section 366.2(c)(12) specifically authorizes two or more
cities and counties to conduct a Community Choice Aggregation (CCA) program through the
creation of a Joint Powers Authority; and
WHEREAS, the creation of a JPA would allow its members to share resources and jointly
provide and achieve the environmental and economic benefits of a CCA program on a regional
basis; and
WHEREAS, the City of Chula Vista desires to enter into a Joint Exercise of Powers
Agreement to establish the San Diego Regional Community Choice Energy Authority along with
Cities of San Diego, La Mesa, Encinitas, and Imperial Beach, and any additional members
approved by the JPA Board in the future.
NOW, THEREFORE, the City Council of the City of Chula Vista hereby resolves as
follows:
1. The Joint Exercise of Powers Agreement Creating the San Diego Regional Community
Choice Energy Authority (SDRCCEA) is hereby approved, and the Mayor is directed and
authorized to execute the Agreement in substantially the form attached hereto as Exhibit
A, together with minor technical or clerical corrections, if any, as may be approved by the
City Attorney.
2. Staff is authorized and directed to take such further actions as may be necessary and
appropriate to implement the intent and purposes of this Resolution.
3. This Resolution and the creation of the SDRCCEA is exempt from the requirements of the
California Environmental Quality Act (CEQA), as it involves organizational and
administrative activities of government that will not result in direct or indirect physical
changes on the environment, and therefore is not considered a “project.” (14 Cal. Code
Regs. § 15378(b)(5).) Further, the resolution is exempt from CEQA as there is no
possibility that the resolution or its implementation would have a significant negative effect
on the environment, pursuant to the State CEQA Guidelines (14 Cal. Code Regs.§
15061(b)(3).)
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Resolution No. 2019-179
Page No. 2
Presented by Approved as to form by
Eric C. Crockett Glen R. Googins
Director of Economic Development City Attorney
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 10th day of September 2019 by the following vote:
AYES: Councilmembers: McCann, Padilla, and Casillas Salas
NAYS: Councilmembers: Diaz and Galvez
ABSENT: Councilmembers: None
Mary Casillas Salas, Mayor
ATTEST:
Kerry K. Bigelow, MMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Kerry K. Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Resolution No. 2019-179 was duly passed, approved, and adopted by the City Council at a regular
meeting of the Chula Vista City Council held on the 10th day of September 2019.
Executed this 10th day of September 2019.
Kerry K. Bigelow, MMC, City Clerk
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San Diego Regional Community Choice Energy Authority
- Joint Powers Agreement –
Effective _____________
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SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
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SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY
JOINT POWERS AGREEMENT
This Joint Powers Agreement (the “Agreement”), effective as of _____________, is made by the
Founding Members of San Diego Regional Community Choice Energy Authority (Authority)
including cities of San Diego, Chula Vista, La Mesa, Encinitas, and Imperial Beach, and entered
into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1 (Section 6500 et seq.)
of the California Government Code relating to the joint exercise of powers among the public
agencies set forth in Exhibit B.
RECITALS
1. The Parties are public agencies sharing various powers under California law, including
but not limited to the power to purchase, supply, and aggregate electricity for themselves
and their inhabitants.
2. SB 350, adopted in 2015, mandates a reduction in greenhouse gas emissions to 40 percent
below 1990 levels by 2030 and to 80 percent below 1990 levels by 2050. In 2018, the
State Legislature adopted SB 100, which directs the Renewable Portfolio Standard to be
increased to 60% renewable by 2030 and establishes a policy for eligible renewable
energy resources and zero-carbon resources to supply 100 percent of electricity retail
sales to California end-use customers by 2045.
3. The purposes for the Founding Members (as such term is defined in Exhibit A) entering
into this Agreement include procuring/developing electrical energy for customers in
participating jurisdictions, addressing climate change by reducing energy-related
greenhouse gas emissions, promoting electrical rate price stability, and fostering local
economic benefits such as job creation, local energy programs and local power
development. It is the intent of this Agreement to promote the development and use of a
wide range of renewable energy sources and energy efficiency programs, including but
not limited to State, regional, and local solar and wind energy production and energy
storage.
4. The Parties to this Agreement desire to establish a separate public agency, known as the
San Diego Regional Community Choice Energy Authority ("Authority"), under the
provisions of the Joint Exercise of Powers Act of the State of California (Government
Code Section 6500 et seq.) ("Act") in order to collectively study, promote, develop,
conduct, operate, and manage energy programs.
5. The Founding Members have each adopted an ordinance electing to implement through
the Authority a Community Choice Aggregation program pursuant to California Public
Utilities Code Section 366.2 ("CCA Program"). The first priority of the Authority will be
the consideration of those actions necessary to implement the CCA Program on behalf of
participating jurisdictions.
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6. By establishing the Authority, the Parties seek to:
(a) Provide electricity service to residents and businesses located within the municipal
boundaries of the public agencies that signed on to this agreement in a responsible,
reliable, innovative, and efficient manner;
(b) Provide electric generation rates to all ratepayers that are lower or at least
competitive with those offered by the Investor Owned Utility (IOU), San Diego Gas
& Electric (SDG&E), for similar products;
(c) Offer differentiated energy products for standard commodity electric service that
provide a cleaner power portfolio than that offered by the IOU for similar service
and a 100 percent renewable content option in which communities and customers
may "opt-up" and voluntarily participate, with the ultimate objective of achieving—
and sustaining—100 percent renewable energy availability and usage, at competitive
rates, within the Authority service territory by no later than 2035, and then beyond;
(d) Develop an aggregate electric supply portfolio with overall lower greenhouse gas
(GHG) emissions than the IOU, and one that supports near-term achievement of the
Parties' greenhouse gas reduction goals and renewable electricity goals;
(e) Prioritize the use and development of local, cost-effective renewable and distributed
energy resources in ways that encourage and support local power development and
storage, avoids the use of unbundled renewable energy credits, and excludes coal
and avoids nuclear contracts;
(f) Promote an energy portfolio that incorporates energy efficiency and demand
response programs and pursues ambitious energy consumption reduction goals;
(g) Provide a range of energy product and program options, available to all Parties and
customers, that best serve their needs, their local communities, and support regional
sustainability efforts.
(h) Demonstrate quantifiable economic benefits to the region including prevailing wage
jobs, local workforce development, economic development programs, new energy
programs, and increased local energy investments;
(i) To the extent authorized by law, support a stable, skilled, and trained workforce
through a variety of mechanisms, including neutrality agreements, that are designed
to ensure quality workmanship at fair and competitive rates and which benefit local
residents by delivering cost-effective clean energy programs and projects;
(j) Promote supplier and workforce diversity, including returning veterans and those
from regional disadvantaged and under-represented communities of concern, to
reflect the diversity of the region;
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(k) Promote personal and community ownership of renewable generation and energy
storage resources, spurring equitable economic development and increased resilience
throughout the region.
(l) Ensure that low-income households are provided with affordable electric rates and
have access to special utility rates including California Alternative Rates for Energy
(CARE) and Family Electric Rate Assistance (FERA) programs;
(m) Pursue purposeful and focused investment in communities of concern, prioritization
of local renewable power, workforce development, and policies and programs
centered on economic, environmental, and social equity.
(n) Use discretionary program revenues to support the Authority’s long-term financial
viability, enhance customer rate stability, and provide all Parties and their customers
with access to innovative energy programs, projects and services throughout the
region; and
(o) Create an administering Authority that is financially sustainable, responsive to
regional priorities, well-managed, and a leader in fair and equitable treatment of
employees through adopting appropriate best practice employment policies,
including but not limited to efficient consideration of petitions to unionize,
participating in collective bargaining, if applicable, and providing appropriate wages
and benefits.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions
hereinafter set forth, it is agreed by and among the Parties as follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings
specified in Exhibit A, unless the context requires otherwise.
1.2 Documents Included. This Agreement consists of this document and the
following exhibits, all of which are hereby incorporated into this Agreement:
Exhibit A: Definitions
Exhibit B: List of Founding Members
Exhibit C: Annual Energy Use by Jurisdiction
Exhibit D: Voting Shares of Founding Members
Exhibit E: Signatures
2. FORMATION OF THE SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY
AUTHORITY
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2.1 Effective Date and Term. This Agreement shall become effective and the
Authority shall exist as a separate public agency on the date this Agreement is
executed by the City of San Diego and at least one other public agency after the
adoption of the ordinances required by Public Utilities Code Section 366.2(c)(12).
The Authority shall provide notice to the Parties of the Effective Date. The
Authority shall continue to exist, and this Agreement shall be effective, until the
Agreement is terminated in accordance with Section 8.4 (Mutual Termination) of
this Agreement, subject to the rights of the Parties to withdraw from the
Authority, pursuant to Section 8.1.
2.2 Formation of the Authority. Under the Act, the Parties hereby create a separate
joint exercise of power agency which is named San Diego Regional Community
Choice Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the
Authority is a public agency separate from the Parties. The jurisdiction of the
Authority shall be all territory within the geographic boundaries of the Parties;
however, the Authority may, as authorized under applicable law, undertake any
action outside such geographic boundaries as is necessary and incidental to the
accomplishment of its purpose.
2.3 Purpose. The purpose and objectives of this Agreement are to establish the
Authority, to provide for its governance and administration, and to define the
rights and obligations of the Parties. This Agreement authorizes the Authority to
provide opportunities by which the Parties can work cooperatively to create
economies of scale, provide for stronger regulatory and legislative influence at the
State level, and implement sustainable energy initiatives that reduce energy
demand, increase energy efficiency, and advance the use of clean, efficient, and
renewable resources in the region for the benefit of all the Parties and their
constituents, including, but not limited to, establishing and operating a
Community Choice Aggregation program.
2.4 Addition of Parties. After the initial formation of the Authority by the Founding
Members, any incorporated municipality, county, or other public agency
authorized to be a community choice aggregator under Public Utilities Code
Section 331.1 located within the service territory of the IOU may apply to and
become a member of the Authority if all the following conditions are met:
2.4.1 The adoption by a two-thirds vote of the Board satisfying the requirements
described in Section 4.11 (Board Voting) of this Agreement, of a
resolution authorizing membership into the Authority;
2.4.2 The adoption by the public agency of a CCA ordinance as required by
Public Utilities Code Section 366.2(c)(12) and approval and execution of
this Agreement and other necessary program agreements by the public
agency;
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2.4.3 Payment of a membership fee, if any, as may be required by the Board to
cover Authority costs incurred in connection with adding the new party;
and
2.4.4 Satisfaction of any other reasonable conditions established by the Board.
Pursuant to this Section 2.4 (Addition of Parties), all Parties shall be
required to commence electric service as soon as is practicable within
statutory and regulatory requirements, as determined by the Board and
Authority management, as a condition to becoming a Party to this
Agreement.
2.5 Continuing Participation. The Parties acknowledge that membership in the
Authority may change by the addition, withdrawal and/or termination of Parties.
The Parties agree to participate with such other Parties as may later be added by
the Board, as described in Section 2.4 (Addition of Parties) of this Agreement.
The Parties also agree that the withdrawal or termination of a Party shall not
affect this Agreement or the remaining Parties' continuing obligations under this
Agreement.
3. POWERS
3.1 General Powers. The Authority shall have the powers common to the Parties
which are necessary or appropriate to the accomplishment of the purposes of this
Agreement, subject to the restrictions set forth in Section 3.4 (Limitation on
Powers) of this Agreement.
3.2 Specific Powers. Specific powers of the Authority shall include, but not be
limited to, each of the following powers, which may be exercised at the discretion
of the Board:
3.2.1 make and enter into contracts;
3.2.2 employ agents and employees, including but not limited to a Chief
Executive Officer;
3.2.3 acquire, own, contract, manage, maintain, and operate any buildings,
public works, improvements or other assets including but not limited to
public electric generation resources;
3.2.4 acquire property for electric generation/interconnection purposes by
eminent domain, or otherwise, except as limited under Section 6508 of the
Act and Sections 3.6 and 4.12.3 of this Agreement, and to hold or dispose
of any property; provided, however, the Authority shall not exercise the
power of eminent domain within the jurisdiction of a Party over its
objection;
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3.2.5 lease any property;
3.2.6 sue and be sued in its own name;
3.2.7 incur debts, liabilities, and obligations, including but not limited to loans
from private lending sources pursuant to its temporary borrowing powers
authorized by law pursuant to Government Code Section 53850 et seq. and
authority under the Act;
3.2.8 issue revenue bonds and other forms of indebtedness;
3.2.9 apply for, accept, and receive all licenses, permits, grants, loans or other
aids from any federal, state or local public agency;
3.2.10 form independent corporations or entities, if necessary, to carry out energy
supply and energy conservation programs at the lowest possible cost or to
take advantage of legislative or regulatory changes;
3.2.11 submit documentation and notices, register, and comply with orders,
tariffs and agreements for the establishment and implementation of the
CCA Program and other energy programs;
3.2.12 adopt rules, regulations, policies, bylaws and procedures governing the
operation of the Authority;
3.2.13 make and enter into service agreements relating to the provision of
services necessary to plan, implement, operate and administer the CCA
Program and other energy programs, including the acquisition of electric
power supply and the provision of retail and regulatory support services;
3.2.14 enter into neutrality agreements where the Authority has a proprietary or
significant financial interest, negotiate project labor agreements,
community benefits agreements and collective bargaining agreements with
the local building trades council and other interested parties; and
3.2.15 receive revenues from sale of electricity and other energy-related
programs.
3.3 Additional Powers to be Exercised. In addition to those powers common to
each of the Parties, the Authority shall have those powers that may be conferred
upon it by law and by subsequently enacted legislation.
3.4 Limitation on Powers. As required by Section 6509 of the Act, the powers of
the Authority are subject to the restrictions upon the manner of exercising power
possessed by the City of Encinitas and any other restrictions on exercising the
powers of the Authority that may be adopted by the Board.
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3.5 Obligations of the Authority. The debts, liabilities, and obligations of the
Authority shall not be the debts, liabilities, and obligations of any of the Parties
unless a Party agrees in writing to assume any of the debts, liabilities, and
obligations of the Authority with the approval of its Governing Body, in its sole
discretion. In addition, pursuant to the Act, no Director shall be personally liable
on the bonds or subject to any personal liability or accountability by reason of the
issuance of bonds.
3.6 Compliance with Local Zoning and Building Laws. Notwithstanding any other
provisions of this Agreement or state law, any facilities, buildings or structures
located, constructed or caused to be constructed by the Authority within the
territory of the Authority shall comply with the General Plan, zoning and building
laws of the local jurisdiction within which the facilities are constructed.
3.7 Compliance with the Political Reform Act and Government Code
Section 1090. The Authority and its officers and employees shall comply with
the Political Reform Act (Government Code Section 81000 et seq.) and
Government Code Section 1090 et seq. The Board shall adopt a Conflict of
Interest Code pursuant to Government Code Section 87300. The Board may
adopt additional conflict of interest regulations in the Operating Policies and
Procedures.
4. GOVERNANCE
4.1 Board of Directors.
4.1.1 The Governing Body of the Authority shall be a Board of Directors
("Board") consisting of two Directors for each Party appointed in
accordance with Section 4.2 (Appointment and Removal of Directors) of
this Agreement until there are five or more Parties of the Authority. When
the fifth Party joins the Authority, the number of Directors per Party shall
be reduced to one Director per Party; each Party shall determine which
Director shall be that Party’s representative on the Board within 45 days of
the date the fifth Party joins the Authority.
4.1.2 Each Director(s) must be a member of the Governing Body of the
appointing Party. Each Director shall serve at the pleasure of the
Governing Body of the Party whom appointed such Director and may be
removed as Director by such Governing Body at any time. If at any time a
vacancy occurs on the Board, then a replacement shall be appointed to fill
the position of the previous Director within 45 days after the date that
position becomes vacant.
4.1.3 Once the Authority reaches five members and becomes governed by a
single appointed Director for each Party, then the Governing Body of each
Party shall appoint an alternate to serve in the absence of the primary
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Director. The alternate is not required to be a member of the Governing
Body of the appointing Party. The alternate shall have all the rights and
responsibilities of the primary Director when serving in his/her absence.
4.1.4 Any change to the size and composition of the Board other than what is
described in this section shall require amendment of this Joint Powers
Agreement in accordance with Section 4.12.
4.2 Appointment and Removal of Directors. The Directors shall be appointed and
may be removed as follows:
4.2.1 The Governing Body of each Party shall appoint and designate in writing
two regular Directors if there are four or fewer Parties to this Agreement,
or one regular Director if there are five or more Parties to this Agreement,
who shall be authorized to act for and on behalf of the Party on matters
within the powers of the Authority. The Governing Body of each Party
shall appoint and designate in writing one alternate Director if there are
five or more Parties in the Authority who may vote on matters when the
regular Director is absent from a Board meeting. The alternate Director
may vote on matters in committee, chair committees, and fully participate
in discussion and debate during meetings. All Directors and alternates
shall be subject to the Board's adopted Conflict of Interest Code.
4.2.2 The Authority’s policies and procedures, to be developed and approved by
the Board, pursuant to Section 3.2.12, shall specify the reasons for and
process associated with the removal of an individual Director for cause.
Notwithstanding the foregoing, no Party shall be deprived of its right to
seat a Director on the Board and any such Party for which its Director
and/or alternate Director have been removed may appoint a replacement.
4.3 Director Compensation. The Board may adopt by resolution a policy relating to
the compensation of its Directors.
4.4 Terms of Office. Each Party shall determine the term of office for their regular
and alternate Director.
4.5 Purpose of Board. The general purpose of the Board is to:
4.5.1 Provide structure for administrative and fiscal oversight;
4.5.2 Retain a Chief Executive Officer to oversee day-to-day operations of the
Authority;
4.5.3 Retain legal counsel;
4.5.4 Identify and pursue funding sources;
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4.5.5 Set policy;
4.5.6 Maximize the utilization of available resources; and
4.5.7 Oversee all Committee activities.
4.6 Specific Responsibilities of the Board. The specific responsibilities of the
Board shall be as follows:
4.6.1 Identify Party and ratepayer needs and requirements;
4.6.2 Formulate and adopt an annual budget prior to the commencement of the
fiscal year;
4.6.3 Develop and implement a financing and/or funding plan for ongoing
Authority operations and capital improvements, if applicable;
4.6.4 Retain necessary and sufficient staff and adopt personnel and
compensation policies, rules and regulations;
4.6.5 Develop a workforce policy that promotes a local, sustainable, and
inclusive workforce;
4.6.6 Adopt policies for procuring electric supply and operational needs such as
professional services, equipment and/or supplies;
4.6.7 Develop and implement a Strategic Plan to guide the development,
procurement, and integration of renewable energy resources consistent
with the intent and priorities identified in this Agreement;
4.6.8 Adopt rules for the disposal of surplus property;
4.6.9 Establish standing and ad hoc committees as necessary to ensure that the
interests of the Authority and concerns of each Party are represented to
ensure effective operational, technical, and financial functioning of the
Authority and monitor the distribution and usage of Authority programs
and benefits throughout the Authority’s service territory;
4.6.10 The setting of retail rates for power sold by the Authority and the setting
of charges for any other category of retail service provided by the
Authority;
4.6.11 To wind up and resolve all obligations of the Authority in the event the
Authority is terminated pursuant to Section 8.2;
4.6.12 Address any concerns of consumers and customers;
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4.6.13 Conduct and oversee Authority operational audits at intervals not to
exceed three years including review of customer access to Authority
programs and benefits, where applicable;
4.6.14 Arrange for an annual independent fiscal audit;
4.6.15 Adopt such bylaws, rules and regulations as are necessary or desirable for
the purposes hereof; provided that nothing in the bylaws, rules and
regulations shall be inconsistent with this Agreement;
4.6.16 Exercise the Specific Powers identified in Sections 3.2 and 4.6 except as
those which the Board may elect to delegate to the Chief Executive
Officer; and
4.6.17 Discharge other duties as appropriate and/or required by law.
4.7 Startup Responsibilities. The Authority shall have the duty to do the following
within one year of the Effective Date of the Agreement:
4.7.1 Oversee the preparation of, adopt, and update an implementation plan,
pursuant to Public Utilities Code Section 366.2(c)(3), for electrical load
aggregation;
4.7.2 Prepare a statement of intent, pursuant to Public Utilities Code
Section 366.2(c)(4), for electrical load aggregation;
4.7.3 Encourage other qualified public agencies to participate in the Authority;
4.7.4 Obtain financing and/or funding as is necessary to support start up and
ongoing working capital;
4.7.5 Evaluate the need for, acquire, and maintain insurance;
4.7.6 Consider and take action on the assumption of City of San Diego
consulting and services agreements related to the Authority’s start up and
implementation activities, subject to the City of San Diego continuing to
advance payment, or if another source is secured by the JPA, until such
time as an agreement is executed for payment of Initial Costs as specified
under Section 7.3.2.
4.8 Meetings and Special Meetings of the Board. The Board shall hold at least four
regular meetings per year, but the Board may provide for the holding of regular
meetings at more frequent intervals. The date, hour, and place of each regular
meeting shall be fixed annually by resolution of the Board. The location of
regular meetings may rotate for the convenience of the Parties, subject to Board
approval and availability of appropriate meeting space. Regular meetings may be
adjourned to another meeting time. Special meetings of the Board may be called
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in accordance with the provisions of Government Code Section 54956. Directors
may participate in meetings telephonically, with full voting rights, only to the
extent permitted by law. Board meeting agendas generally shall be set, in
consultation with the Board Chair, by the Chief Executive Officer appointed by
the Board pursuant to Section 5.5. The Board itself may add items to the agenda
upon majority vote pursuant to Section 4.11.1.
4.9 Brown Act Applicable. All meetings of the Board shall be conducted in
accordance with the provisions of the Ralph M. Brown Act (Government Code
Section 54950, et seq.).
4.10 Quorum. A simple majority of the Directors shall constitute a quorum. No
actions may be taken by the Board without a quorum of the Directors present. If a
Party fails to be represented by a Director(s) or alternate Director in more than
one meeting in a 12-month period, the Board may take action by publicly noticing
the Party that they are at risk of lack of representation within the Authority.
4.11 Board Voting.
4.11.1 Equal Vote. Once a quorum has been established, in general, except when
Special Voting is expressly required pursuant to Section 4.12 hereof,
Board action shall require votes of a majority of the total number of the
Directors of the Board. All votes taken pursuant to this Section 4.11.1
shall be referred to as an “Equal Vote.” The consequence of a tie vote
shall generally be “no action” taken. Notwithstanding the foregoing, an
“Equal Vote” may be subject to a “Voting Shares Vote” as provided in
Section 4.11.2, below.
4.11.2 Voting Shares Vote. At the same meeting at which an Equal Vote
action was taken, three or more Directors shall have the right to
request and have conducted a “Voting Shares Vote” to reconsider that
action. Approval of a proposed action by a Voting Shares Vote to
reconsider an Equal Vote action shall require the affirmative vote of
Directors representing a two-thirds supermajority (66.7%) of the
“Voting Shares” cast. The formula and process for allocating Voting
Shares is set forth in Section 4.11.3, below. If a Voting Shares Vote
for reconsideration fails, the legal effect is to affirm the Equal Vote
with respect to which the Voting Shares Vote was taken. If the
Voting Shares Vote succeeds, the legal effect is to nullify the Equal
Vote with respect to which the Voting Shares Vote was taken. If the
underlying Equal Vote was a tie, the Voting Shares Vote replaces that
tie vote. No action may be taken solely by a Voting Shares Vote
without first having taken an Equal Vote.
4.11.3 Voting Shares Vote Formula and Process. For the process of a Voting
Shares Vote, each Director shall have a Voting Share as determined by the
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following formula: (Annual Energy Use/Total Annual Energy) multiplied
by 100, where:
(a) “Annual Energy Use” means, (i) with respect to the first year
following the Effective Date, the annual electricity usage,
expressed in kilowatt hours (“kWh”), within the Party’s respective
jurisdiction and (ii) with respect to the period after the first
anniversary of the Effective Date, the annual electricity usage,
expressed in kWh, of accounts within a Party’s respective
jurisdiction that are served by the Authority; and
(b) “Total Annual Energy” means the sum of all Parties’ Annual
Energy Use. The initial values for Annual Energy Use will be
designated in Exhibit C and shall be adjusted annually as soon as
reasonably practicable after January 1, but no later than March 1 of
each year. These adjustments shall be approved by the Board.
The combined voting share of all Directors representing a Party
shall be based upon the annual electricity usage within the Party’s
jurisdiction. If a Party has two Directors, then the voting shares
allocated to that Party shall be equally divided between its two
Directors.
The initial voting shares will be set forth in Exhibit D. Exhibit D
shall be revised no less than annually as necessary to account for
changes in the number of Parties and changes in the Parties’
Annual Energy Use. Exhibit D and adjustments shall be approved
by the Board.
Notwithstanding the formula for Voting Shares set forth above, for
the purposes of the Voting Shares Vote, no one Party to this
Agreement shall have a Director (or Directors, as the case may be)
with a Voting Share that exceeds 49%, regardless of the Party’s
actual annual electric usage. If a Party would have a voting share
that exceeds 49%, the excess above 49% shall be distributed
among the other Parties in accordance with their relative annual
electricity usage, as shown in Exhibit D.
4.12 Special Voting.
4.12.1 Except as provided below, matters that require Special Voting as
described in this section shall require 72 hours prior notice to any Brown
Act meeting or special meeting.
4.12.2 Two-thirds vote (or such greater vote as required by state law) of the
appointed Directors shall be required to take any action on the following:
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(a) Issue bonds or other forms of debt;
(b) Adding or removing Parties;
(c) Amend or terminate this Agreement or adopt or amend the bylaws
of the Authority. At least 30 days advance notice shall be provided
for such actions. The Authority shall also provide prompt written
notice to all Parties of the action taken and enclose the adopted or
modified documents; and
4.12.3 Three-Fourths Vote shall be required to initiate any action for Eminent
Domain
4.12.4 Matters requiring Special Voting under the terms of this Section shall not
be subject to Voting Shares Voting pursuant to Section 4.11.2, above.
5. INTERNAL ORGANIZATION
5.1 Elected and Appointed Officers. For each fiscal year, the Board shall elect a
Chair and Vice Chair from among the Directors and shall appoint a Secretary and
a Treasurer as provided in Government Code section 6505.5. No Director may
hold more than one such office at any time and elected officers shall represent
different Parties of the Authority. Appointed officers shall not be elected officers
of the Board.
5.2 Chair and Vice Chair. For each fiscal year, the Board shall elect a Chair and
Vice Chair from among the Directors. The term of office of the Chair and Vice
Chair shall continue for one year, but there shall be no limit on the number of
terms held by either the Chair or Vice Chair. The Chair shall be the presiding
officer of all Board meetings, and the Vice Chair shall serve in the absence of the
Chair. The Chair shall perform duties as may be imposed by the Board. In the
absence of the Chair, the Vice-Chair shall perform all of the Chair’s duties. The
office of the Chair or Vice Chair shall be declared vacant and a new selection
shall be made if: (a) the person serving dies, resigns, or the Party that the person
represents removes the person as its representative on the Board, or (b) the Party
that he or she represents withdraws from the Authority pursuant to the provisions
of this Agreement. Upon a vacancy, the position shall be filled at the next
regular meeting of the Board held after such vacancy occurs or as soon as
practicable thereafter. Succeeding officers shall perform the duties normal to said
offices.
5.3 Secretary. The Board shall appoint a qualified person who is not on the Board to
serve as Secretary. The Secretary shall be responsible for keeping the minutes of
all meetings of the Board and all other office records of the Authority. If the
appointed Secretary is an employee of any Party, such Party shall be entitled to
reimbursement for any documented out of pocket costs it incurs in connection
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with such employee’s service as Secretary of the Authority, and full cost recovery
for any documented hours of service provided by such employee during such
Party’s normal working hours.
5.4 Treasurer/Chief Financial Officer and Auditor. The Board of Directors shall
appoint a Treasurer who shall function as the combined offices of Treasurer and
Auditor and shall strictly comply with the statutes related to the duties and
responsibilities specified in Section 6505.5 of the Act. The Treasurer for the
Authority shall be the depository and have custody of all money of the Authority
from whatever source and shall draw all warrants and pay demands against the
Authority as approved by the Board. The Treasurer shall cause an independent
audit(s) of the finances of the Authority to be made by a certified public
accountant, or public accountant, in compliance with Section 6505 of the Act.
The Treasurer shall report directly to the Board and shall comply with the
requirements of treasurers of incorporated municipalities. The Board may
transfer the responsibilities of Treasurer to any qualified person or entity as the
law allows at the time. The duties and obligations of the Treasurer are further
specified in Section 7. The Treasurer shall serve at the pleasure of the Board. If
the appointed Treasurer is an employee of any Party, such Party shall be entitled
to reimbursement for any documented out of pocket costs it incurs in connection
with such employee’s service as Treasurer of the Authority, and full cost recovery
for any documented hours of service provided by such employee during such
Party’s normal working hours.
5.5 Chief Executive Officer. The Board shall appoint a Chief Executive Officer for
the Authority, who shall be responsible for the day-to-day operation and
management of the Authority and the CCA Program. The Board shall appoint a
qualified person, hired through a transparent, competitive process, to act as the
Chief Executive Officer; he or she may not be an elected member of the Board or
otherwise representing any Party to the Authority. The Chief Executive Officer
may exercise all powers of the Authority, except those powers specifically
reserved to the Board including but not limited to those set forth in Section 4.6
(Specific Responsibilities of the Board) of this Agreement or the Authority’s
bylaws, or those powers which by law must be exercised by the Board. The Chief
Executive Officer may enter into and execute power purchase agreements and
other contracts, in accordance with criteria and policies established by the Board.
5.6 General Counsel. The Board shall appoint a qualified person to act as the
Authority’s General Counsel, who shall not be a member of the Board, or an
elected official or employee of a Party.
5.7 Bonding of Persons Having Access to Property. Pursuant to the Act, the Board
shall designate the public officer or officers or person or persons who have charge
of, handle, or have access to any property of the Authority exceeding a value as
established by the Board, and shall require such public officer or officers or
person or persons to file an official bond in an amount to be fixed by the Board.
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5.8 Other Employees/Agents. The Board shall have the power by resolution to hire
employees or appoint or retain such other agents, including officers, loan-out
employees, or independent contractors, as may be necessary or desirable to carry-
out the purpose of this Agreement, pursuant to terms and conditions adopted by
the Board.
5.9 Privileges and Immunities from Liability. All of the privileges and immunities
from liability, exemption from laws, ordinances and rules, all pension, relief,
disability, workers’ compensation and other benefits which apply to the activities
of officers, agents or employees of a public agency when performing their
respective functions shall apply to the officers, agents or employees of the
Authority to the same degree and extent while engaged in the performance of any
of the functions and other duties of such officers, agents or employees under this
Agreement. None of the officers, agents or employees directly employed by the
Board shall be deemed, by reason of their employment by the Authority to be
employed by the Parties or by reason of their employment by the Authority, to be
subject to any of the requirements of the Parties.
5.10 Commissions, Boards and Committees. The Board may establish any advisory
commissions, boards, and committees as the Board deems appropriate to assist the
Board in carrying out its functions and implementing the CCA Program, related
energy programs, and the provisions of this Agreement. To the extent possible,
the commissions, boards, and committees should have equal representation from
each Party. The Board may establish criteria to qualify for appointment on said
commissions, boards, and committees. The Board may establish rules,
regulations, policies, or procedures to govern any such commissions, boards, or
committees and shall determine whether members shall be compensated or
entitled to reimbursement for expenses.
5.10.1 Executive Committee. The Board may establish an executive committee
consisting of a subset of its Directors. The Board may delegate to the
Executive Committee such authority as the Board might determine
appropriate to serve as a liaison between the Board and the Chief
Executive Officer and to make recommendations to the Board regarding
the operations of the Authority. Notwithstanding the foregoing, the Board
may not delegate authority regarding essential Board functions, including
but not limited to, approving the fiscal year budget or hiring or firing the
Chief Executive Officer, and other functions as provided in the Authority
bylaws or policies. Further, the Board may not delegate to the Executive
Committee, or any other committee, the Board’s authority under Section
3.2.12 to adopt and amend Authority policies and procedures.
5.10.2 Finance and Risk Management Committee. The Board shall establish a
finance and risk management committee consisting of a subset of its
Directors. The primary purpose of the Finance and Risk Management
Committee is to review and recommend to the Board:
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(a) A funding plan;
(b) A fiscal year budget; and
(c) Financial policies and procedures to ensure equitable contributions
by Parties; and
The Finance and Risk Management Committee may have such
other responsibilities as may be approved by the Board, including
but not limited to advising the Chief Executive Officer on fiscal
and risk management policies and procedures, rules and
regulations governing investment of surplus funds, audits to
achieve best practices in corporate governance and selection and
designation of financial institutions for deposit of Authority funds,
and credit/depository matters.
5.10.3 Community Advisory Committee. The Board shall establish a Community
Advisory Committee comprised of non-Board members. The primary
purpose of the Community Advisory Committee shall be to advise the
Board of Directors and provide for a venue for ongoing citizen support
and engagement in the strategic direction, goals, and programs of the
Authority. The Community Advisory Committee is advisory only, and
shall not have decision-making authority, nor receive any delegation of
authority from the Board of Directors. Each Party may nominate a
committee member(s) and the Board shall determine the final selection of
committee members, who should represent a diverse cross-section of
interests, skills sets and geographic regions.
5.10.4 Technical Advisory Committee. The Board may establish a Technical
Advisory Committee comprised of non-Board members. The primary
purpose of the Technical Advisory Committee shall be to advise the Board
of Directors and provide the Authority with technical support and
engagement in the energy-related operations of the Authority,
supplementing the expertise of the Authority staff, independent
contractors, and consultants. Each Party may nominate a committee
member(s) and the Board shall determine the final selection of committee
members, who should have significant expertise in electric markets,
programs, procurement, regulatory and legislative engagement, and/or
energy law.
5.10.5 Meetings of the Advisory Committees. All meetings of the committees
shall be held in accordance with the Brown Act. For the purposes of
convening meetings and conducting business, unless otherwise provided
in the bylaws, a majority of the members of the committee shall constitute
a quorum for the transaction of business, except that less than a quorum or
the secretary of each committee may adjourn meetings from time-to-time.
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As soon as practicable, but no later than the time of posting, the Secretary
of the committee shall provide notice and the agenda to each Party,
Director(s), and Alternate Director(s).
5.10.6 Officers of Advisory Committees. Unless otherwise determined by the
Board, each Committee shall choose its officers, comprised of a Chair, a
Vice Chair, and a Secretary.
6. IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
6.1 Preliminary Implementation of the CCA Program.
6.1.1 Enabling Ordinance. In addition to the execution of this Agreement, each
Party shall adopt an ordinance in accordance with Public Utilities Code
Section 366.2(c)(12) for the purpose of specifying that the Party intends to
implement a CCA Program by and through its participation in the
Authority.
6.1.2 Implementation Plan. The Authority shall cause to be prepared and secure
Board approval of an Implementation Plan meeting the requirements of
Public Utilities Code Section 366.2 and any applicable Public Utilities
Commission regulations, and consistent with the terms of this Agreement,
as soon after the Effective Date as reasonably practicable.
6.2 Authority Documents. The Parties acknowledge and agree that the affairs of the
Authority will be implemented through various documents duly adopted by the
Board through Board resolution or minute action, including but not necessarily
limited to operational procedures and policies, the annual budget, and specific
plans such as a local renewable energy development and integration plan and
other policies defined as the Authority Documents by this Agreement. All such
Authority Documents shall be consistent with and designed to advance the goals
and objectives of the Authority as expressed in this Agreement. The Parties agree
to abide by and comply with the terms and conditions of all such Authority
Documents that may be adopted by the Board, subject to the Parties' right to
withdraw from the Authority as described in Section 8 (Withdrawal and
Termination) of this Agreement.
6.3 Integrated Resource Plan and Regulatory Compliance. The Authority shall
cause to be prepared an Integrated Resource Plan in accordance with California
Public Utilities Commission regulations, and consistent with the terms of this
Agreement, that will ensure the long-term development and administration of a
variety of energy programs that promote local renewable resources, conservation,
demand response, and energy efficiency, while maintaining compliance with
other regulatory requirements including the State Renewable Portfolio Standard
(RPS) and customer rate competitiveness. The Authority shall prioritize the
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development of cost competitive clean energy projects in San Diego and adjacent
counties.
6.4 Renewable Portfolio Standards. The Authority shall provide its customers
energy primarily from Category 1 eligible renewable resources, as defined under
the California RPS and consistent with the goals of the CCA Program. The
Authority shall avoid the procurement of energy from Category 2 or 3 eligible
renewable resources (unbundled Renewable Energy Credits or RECs) to the
extent feasible. The Authority’s ultimate objective shall be to achieve— and
sustain—a renewable energy portfolio with 100 percent renewable energy
availability and usage, at competitive rates, within the Authority service territory
by no later than 2035, and then beyond.
7. FINANCIAL PROVISIONS
7.1 Fiscal Year. The Authority's fiscal year shall be 12 months commencing July 1
and ending June 30. The fiscal year may be changed by Board resolution.
7.2 Depository.
7.2.1 All funds of the Authority shall be held in separate accounts in the name
of the Authority and not commingled with funds of any Party or any other
person or entity.
7.2.2 All funds of the Authority shall be strictly and separately accounted for,
and regular reports shall be rendered of all receipts and disbursements, at
least quarterly during the fiscal year. The books and records of the
Authority shall be open to inspection and duplication by the Parties at all
reasonable times. Annual financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles of the United
States of America within 6 months of the close of the fiscal year. The
Board shall contract with a certified public accountant to make an annual
audit of the financial statements of the Authority, which shall be
conducted in accordance with the requirements of Section 6505 of the Act.
7.2.3 All expenditures shall be made in accordance with the approved budget
and upon the approval of any officer so authorized by the Board in
accordance with its policies and procedures.
7.3 Budget and Recovery Costs.
7.3.1 Budget. The initial budget shall be approved by the Board. The Board
may revise the budget from time to time as may be reasonably necessary
to address contingencies and unexpected expenses. All subsequent
budgets of the Authority shall be prepared and approved by the Board in
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accordance with its fiscal management policies that should include a
deadline for approval.
7.3.2 Funding of Initial Costs.
(a) The City of San Diego shall fund the Initial Costs of establishing
the Authority and implementing its CCA Program. In the event
that the CCA Program becomes operational, the City of San Diego
will be reimbursed for its Initial Costs on the terms set forth in this
Section. The City shall first submit to the Founding Members a
description of the types of costs, cost estimates, and interest for
which it expects reimbursement. Reimbursable costs shall include,
but not limited to, repayment of hard costs associated with CCA
vendor contracts and Authority formation, reimbursement for the
portion of staff costs associated with managing Authority and
program formation and other out-of-pocket expenses directly
attributable to the implementation of CCA through the Authority.
The City will meet and confer with Founding Members in the
development of its proposal for reimbursement to the Authority.
The amount and the terms for City reimbursement shall be subject
to the approval of the Authority Board. The Authority Board may
establish a reasonable time period over which such Initial Costs are
recovered once Authority revenues commence. In the event that
the CCA Program does not become operational, to the extent
Authority funds are available the City of San Diego may be
reimbursed in accordance with section 8.6 of this Agreement.
(b) The Authority shall also reimburse Founding Members for their
Initial Costs in supporting the implementation of the Authority
pursuant to the execution of an agreement specifying the services
provided and their related costs. The Authority may establish
reasonable costs and a reasonable time period over which such
costs are recovered once Authority revenues commence. The
Authority shall not provide for staff time costs or on-going cost
reimbursement to Parties once the Authority becomes fully
operational unless a specific Agreement between the Authority and
the Party for specified services not otherwise provided by
Authority staff has been approved by the Board.
7.3.3 Program Costs. The Parties desire that, to the extent reasonably
practicable, all costs incurred by the Authority that are directly or
indirectly attributable to the provision of electric services under the CCA
Program, including the establishment and maintenance of various reserve
and performance funds, shall be recovered through appropriate charges to
CCA customers receiving such electric services.
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7.3.4 No Requirement for Contributions or Payments. Parties are not required
under this Agreement to make any financial contributions or payments to
the Authority, and the Authority shall have no right to require such a
contribution or payment unless expressly set forth herein (for example, as
provided in Section 2.4.3, with respect to Additional Members and
provided in Section 8.1, with respect to Withdrawal), or except as
otherwise required by law.
Notwithstanding the foregoing, a Party may volunteer to provide, or
negotiate terms with the Authority to provide the following:
(a) contributions from its treasury for the purposes set forth in this
Agreement;
(b) payments of public funds to defray the cost of the purposes of the
Agreement and Authority;
(c) advances of public funds for such purposes, such advances to be
repaid as provided by written agreement; or
(d) its personnel, equipment or property in lieu of other contributions
or advances.
Any agreement with the Authority to provide any of the above-referenced
contributions or payments shall require a Special Vote of the Board
pursuant to Section 4.12.2.
No Party shall be required, by or for the benefit of the Authority, to adopt
any local tax, assessment, fee or charge under any circumstances.
7.4 Accounts and Reports. The Treasurer shall establish and maintain such funds
and accounts as may be required by good accounting practice or by any provision
of any trust agreement entered into with respect to the proceeds of any bonds
issued by the Authority. The books and records of the Authority in the hands of
the Treasurer shall be open to inspection and duplication at all reasonable times
by duly appointed representatives of the Parties. The Treasurer, within 180 days
after the close of each fiscal year, shall give a complete written report of all
financial activities for such fiscal year to the Parties. The Treasurer shall
cooperate with all regular audits required by Section 4.6.11 and 4.6.12.
7.5 Funds. The Treasurer shall receive, have custody of and/or disburse Authority
funds in accordance with the laws applicable to public agencies and generally
accepted accounting practices, and shall make the disbursements required by this
Agreement in order to carry out any of the purposes of this Agreement.
8. WITHDRAWAL AND TERMINATION
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8.1 Withdrawal
8.1.1 Withdrawal by Parties. Any Party may withdraw its membership in
the Authority, effective as of the beginning of the Authority's fiscal
year, by giving no less than 180 days advance written notice of its
election to do so, which notice shall be given to the Authority and
each Party. Withdrawal of a Party shall require an affirmative vote of
the Party's Governing Body.
8.1.2 Amendment. Notwithstanding Section 8.1.1 (Withdrawal by Parties)
of this Agreement, a Party may withdraw its membership in the
Authority upon approval and execution of an amendment to this
Agreement provided that the requirements of this Section 8.1.2 are
strictly followed. A Party shall be deemed to have withdrawn its
membership in the Authority effective 180 days after the Board
approves an amendment to this Agreement if the Director
representing such Party has provided notice to the other Directors
immediately preceding the Board's vote of the Party's intention to
withdraw its membership in the Authority should the amendment be
approved by the Board.
8.1.3 Continuing Liability; Further Assurances. A Party that withdraws its
membership in the Authority may be subject to certain continuing
liabilities, as described in Section 8.5 (Continuing Liability; Refund)
of this Agreement, including, but not limited to, power purchase
agreements and other Authority contracts and operational obligations.
The withdrawing Party and the Authority shall execute and deliver all
further instruments and documents and take any further action that
may be reasonably necessary, as determined by the Board, to
effectuate the orderly withdrawal of such Party from membership in
the Authority. The Board shall also consider, pursuant to Section
3.2.12, adoption of a policy that allows a withdrawing Party to
negotiate assignment to the Party of costs of electric power or other
resources procured on behalf of its customers by the Authority upon
its withdrawal. The Authority’s policies shall prescribe the rights if
any of a withdrawn Party to continue to participate in those Board
discussions and decisions affecting customers of the CCA Program
that reside or do business within the jurisdiction of the Party. In the
implementation of this Section 8.1.3, the Parties intend, to the
maximum extent possible, without compromising the viability of
ongoing Authority operations, that any claims, demands, damages, or
liabilities covered hereunder, be funded from the rates paid by CCA
Program customers located within the service territory of the
withdrawing Party, and not from the general fund of the withdrawing
Party itself.
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8.2 Termination of CCA Program. Nothing contained in Section 6 or elsewhere in
this Agreement shall be construed to limit the discretion of the Authority to
terminate the implementation or operation of the CCA Program at any time in
accordance with any applicable requirements of state law.
8.3 Involuntary Termination. This Agreement may be terminated with respect to a
Party for material non-compliance with provisions of this Agreement or Authority
documents upon a two-thirds vote of the Board in which the minimum Equal Vote
or Voting Shares Vote, as applicable in Section 4.11 (Board Voting) of this
Agreement, shall be no less than two-thirds vote excluding the vote and voting
shares of the Party subject to possible termination. Prior to any vote to terminate
this Agreement with respect to a Party, written notice of the proposed termination
and the reason(s) for such termination shall be delivered to the Party whose
termination is proposed at least 30 days prior to the regular Board meeting at
which such matter shall first be discussed as an agenda item. The written notice
of proposed termination shall specify the particular provisions of this Agreement
or the Authority Documents that the Party has allegedly violated. The Party
subject to possible termination shall have the opportunity at the next regular
Board meeting to respond to any reasons and allegations that may be cited as a
basis for termination prior to a vote regarding termination. A Party that has had
its membership in the Authority terminated may be subject to certain continuing
liabilities, as described in Section 8.5 (Continuing Liability; Refund) of this
Agreement.
8.4 Mutual Termination. This Agreement may be terminated by mutual agreement
of all the Parties; provided, however, the foregoing shall not be construed as
limiting the rights of a Party to withdraw its membership in the Authority, and
thus terminate this Agreement with respect to such withdrawing Party, as
described in Section 8.1 (Withdrawal) of this Agreement.
8.5 Continuing Liability; Refund. Upon a withdrawal or involuntary termination of
a Party, the Party shall remain responsible for any claims, demands, damages, or
liabilities arising from the Party’s membership in the Authority through the
effective date of its withdrawal or involuntary termination, it being agreed that the
Party shall not be responsible for any claims, demands, damages, or liabilities
commencing or arising after the date of the Party’s withdrawal or involuntary
termination. In addition, such Party also shall be responsible for (a) any damages,
losses, or costs incurred by the Authority which result directly from the Party’s
withdrawal or termination, including but not limited to costs arising from the
resale of capacity, electricity, or any attribute thereof no longer needed to serve
such Party’s load; and (b) any costs or obligations associated with the Party’s
customer participation in any program in accordance with the program’s terms,
provided such costs or obligations were incurred prior to the withdrawal of the
Party. The withdrawing Party agrees to pay any such deposit determined by the
Authority to cover the Party’s liability for the operational and contract costs
described above. Any amount of the Party’s funds held on deposit with the
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Authority above that which is required to pay any liabilities or obligations shall be
returned to the Party. In the implementation of this Section 8.5, the Parties intend,
to the maximum extent possible, without compromising the viability of ongoing
Authority operations, that any claims, demands, damages, or liabilities covered
hereunder, be funded from the rates paid by CCA Program customers located
within the service territory of the withdrawing Party, and not from the general
fund of the withdrawing Party itself.
8.6 Disposition of Authority Assets. Upon termination of this Agreement and
dissolution of the Authority by all Parties, and after payment of all obligations of
the Authority, the Board
8.6.1 May sell or liquidate Authority property; and
8.6.2 Shall distribute assets to Parties in proportion to the contributions made by
the existing Parties.
Any assets provided by a Party to the Authority shall remain the asset of that
Party and shall not be subject to distribution under this section.
9. MISCELLANEOUS PROVISIONS
9.1 Dispute Resolution. The Parties and the Authority shall make reasonable efforts
to settle all disputes arising out of or in connection with this Agreement. Before
exercising any remedy provided by law, a Party or the Parties and the Authority
shall engage in nonbinding mediation in the manner agreed upon by the Party or
Parties and the Authority. The Parties agree that each Party may specifically
enforce this section. In the event that nonbinding mediation is not initiated or does
not result in the settlement of a dispute within 60 days after the demand for
mediation is made, any Party and the Authority may pursue any remedies
provided by law.
9.2 Liability of Directors, Officers, and Employees. The Directors, officers, and
employees of the Authority shall use ordinary care and reasonable diligence in the
exercise of their powers and in the performance of their duties pursuant to this
Agreement. No current or former Director, officer, or employee will be
responsible for any act or omission by another Director, officer, or employee.
The Authority shall defend, indemnify and hold harmless the individual current
and former Directors, officers, and employees for any acts or omissions in the
scope of their employment or duties in the manner provided by Government Code
Section 995 et seq. Nothing in this section shall be construed to limit the defenses
available under the law, to the Parties, the Authority, or its Directors, officers, or
employees.
9.3 Indemnification of Parties. The Authority shall acquire such insurance coverage
as is necessary to protect the interests of the Authority, the Parties and the public.
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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The Authority shall defend, indemnify and hold harmless the Parties and each of
their respective governing board members, officers, agents and employees, from
any and all claims, losses, damages, costs, injuries and liabilities of every kind
arising directly or indirectly from the conduct, activities, operations, acts and
omissions of the Authority.
9.4 Notices. Any notice required or permitted to be made hereunder shall be in
writing and shall be delivered in the manner prescribed herein at the principal
place of business of each Party. The Parties may give notice by (1) personal
delivery; (2) e-mail; (3) U.S. Mail, first class postage prepaid, or a faster delivery
method; or (3) by any other method deemed appropriate by the Board.
Upon providing written notice to all Parties, any Party may change the designated
address or e-mail for receiving notice.
All written notices or correspondence sent in the described manner will be
deemed given to a party on whichever date occurs earliest: (1) the date of personal
delivery; (2) the third business day following deposit in the U.S. mail, when sent
by “first class” mail; or (3) the date of transmission, when sent by e-mail or
facsimile.
9.5 Successors. This Agreement shall be binding upon and shall inure to the benefit
of the successors of each Party.
9.6 Assignment. Except as otherwise expressly provided in this Agreement, the
rights and duties of the Parties may not be assigned or delegated without the
advance written consent of all of the other Parties, and any attempt to assign or
delegate such rights or duties in contravention of this section shall be null and
void. This Agreement shall inure to the benefit of, and be binding upon, the
successors and assigns of the Parties. This section does not prohibit a Party from
entering into an independent agreement with another agency, person, or entity
regarding the financing of that Party's contributions to the Authority, or the
disposition of the proceeds which that Party receives under this Agreement, so
long as such independent agreement does not affect, or purport to affect, the rights
and duties of the Authority or the Parties under this Agreement.
9.7 Severability. If any one or more of the terms, provisions, promises, covenants, or
conditions of this Agreement were adjudged invalid or void by a court of
competent jurisdiction, each and all of the remaining terms, provisions, promises,
covenants, and conditions of this Agreement shall not be affected thereby and
shall remain in full force and effect to the maximum extent permitted by law.
9.8 Governing Law. This Agreement is made and to be performed in the State of
California, and as such California substantive and procedural law shall apply.
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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9.9 Headings. The section headings herein are for convenience only and are not to
be construed as modifying or governing the language of this Agreement.
9.10 Counterparts. This Agreement may be executed in any number of counterparts,
and upon execution by all Parties, each executed counterpart shall have the same
force and effect as an original instrument and as if all Parties had signed the same
instrument. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any signatures
thereon and may be attached to another counterpart of this Agreement identical in
form hereto but having attached to it one or more signature pages.
CITY OF ___Chula Vista_______________
By: ________________________________
Mary Casillas Salas, Mayor
ATTEST:
By: __________________________________
Kerry K. Bigelow, City Clerk
APPROVED AS TO FORM:
By: __________________________________
Glen R. Googins, City Attorney
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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Exhibit A: Definitions
"AB 117" means Assembly Bill 117 (Stat. 2002, Ch. 838, codified at Public Utilities Code
Section 366.2), which created Community Choice Aggregation.
"Act" means the Joint Exercise of Powers Act of the State of California (Chapter 5, Division 7,
Title 1 of the Government Code commencing with Section 6500).
"Agreement" means this Joint Powers Agreement.
"Authority" means San Diego Regional Community Choice Energy Authority.
"Authority Document(s)" means document(s) duly adopted by the Board by resolution or motion
implementing the powers, functions and activities of the Authority, including but not
limited to the Operating Policies and Procedures, the annual budget, and plans and
policies.
"Board" means the Board of Directors of the Authority.
"Community Choice Aggregation" or "CCA" means an electric service option available to cities,
counties, and other public agencies pursuant to Public Utilities Code Section 366.2.
"CCA Program" means the Authority's program relating to CCA that is principally described in
Section 2.3 (Purpose) of this Agreement.
"Days" shall mean calendar days unless otherwise specified by this Agreement.
"Director" means a member of the Board representing a Party, including up to two alternate
Directors appointed in accordance with Sections 4.1 (Board of Directors) and 4.2
(Appointment and Removal of Directors) of this Agreement.
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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"Effective Date" means the date on which the Agreement shall become effective and the
Authority shall exist as a separate public agency, as further described in Section 2.1
(Effective Date and Term) of this Agreement.
“Founding Member” means any jurisdiction that joins with the City of San Diego to form the
San Diego Regional CCE Authority in 2019, as identified in Exhibit B. Founding
members shall not incur any expenses related to their membership in the Authority or its
operational implementation.
“Governing Body” means: for the County of San Diego, its Board of Supervisors; for any city
other than San Diego, its City Council; for San Diego, the Mayor and the City Council;
and, for any other public agency, the equivalent policy making body that exercises
ultimate decision-making authority over such agency.
"Initial Costs" means implementation costs advanced by the City of San Diego and other
Founding Members in support of the formation of the Authority, which are (a) directly
related to the establishment of the Authority and its CCA program, and (b) incurred by
the Authority or its Members relating to the initial operation of the Authority, such as the
hiring of the executive and operations staff, any required accounting, administrative,
technical and legal services in support of the Authority's initial formation activities or in
support of the negotiation, preparation and approval of power purchase agreements.
Initial Costs do not include costs associated with the investigation of the CCA model,
attendance at routine planning meetings, or a Party’s pre-formation reports related to their
decision to pursue CCA or join the Authority. The Authority Board shall determine the
repayment timing and termination date for the Initial Costs.
“Investor Owned Utilities” means a privately-owned electric utility whose stock is publicly
traded. It is rate regulated and authorized to achieve an allowed rate of return.
"Parties" means, collectively, the signatories to this Agreement that have satisfied the conditions
as defined above in “Founding Members” or in Section 2.4 (Addition of Parties) of this
Agreement, such that they are considered members of the Authority.
"Party" means, singularly, a signatory to this Agreement that has satisfied the conditions as
defined above in “Founding Members” or in Section 2.4 (Addition of Parties) of this
Agreement, such that it is considered a member of the Authority.
"Public Agency" as defined in the Act includes, but is not limited to, the federal government or
any federal department or agency, this state, another state or any state department or
agency, a county, a county board of education, county superintendent of schools, city,
public corporation, public district, regional transportation commission of this state or
another state, a federally recognized Indian tribe, or any joint powers authority formed
pursuant to the Act.
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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Exhibit B: List of Founding Members
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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Exhibit C: Annual Energy Use by Jurisdiction
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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Exhibit D: Voting Shares of Founding Members
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
_____________________________________________________________________________________________________________________
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Exhibit E: Signatures
DocuSign Envelope ID: 63614C80-9736-4A46-9C84-B9F6A2203DF4