HomeMy Public PortalAboutAgreement_2017-12-19_Los Angeles Community Choice Energy Authority_Joint Powers AgreementLOS ANGELES COMMUNITY CHOICE ENERGY AUTHORITY
JOINT POWERS AGREEMENT
This Joint Powers Agreement (the "Agreement"), effective as of December 19, 2017, is made
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 A.
RECITALS
1. The Parties are public agencies sharing various powers under California laws, including
but not limited to the power to purchase supply, and aggregate electricity for themselves and
their inhabitants.
2. In 2006, the State Legislature adopted AB 32, the Global Warming Solutions Act, which
mandates a reduction in greenhouse gas emissions in 2020 to 1990 levels. The California Air Resources
Board is promulgating regulations to implement AB 32 which will require local government to develop
programs to reduce greenhouse emissions.
3. The purposes for the Initial Participants (as such term is defined in Section 2.3 below) entering
into this Agreement include addressing climate change by reducing energy related greenhouse gas
emissions and securing energy supply and price stability; energy efficiencies and local economic benefits,
such as jobs creation, community energy programs; and local power development. Itis 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 solar and wind energy production.
4. The Parties desire to establish a separate public agency, known as the Los Angeles 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 Initial Participants 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.
6. By establishing the Authority, the Parties seek to:
(a) Develop an electric supply portfolio with overall lower greenhouse gas intensity and
lower greenhouse gas (GHG) emissions than Southern California Edison ("SCE"), and one that supports
the achievement of the parties' greenhouse gas reduction goals and the comparable goals of all
participating jurisdictions;
(b) Establish an energy portfolio that encourages the use and development of cost-effective
local renewable and distributed energy resources and that discourages the use unbundled renewable
energy credits;
(c) Promote an energy portfolio that incorporates energy efficiency and demand response
programs and pursues ambitious energy consumption reduction goals;
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(d) Provide electricity rates that are lower or at worst competitive with those offered by SCE
for similar products;
(e) Offer differentiated energy options (e.g. 33% or 50% qualified renewable) for default
service, and a 100% renewable content option in which customers may "opt -up" and voluntarily
participate;
(f) Achieve quantifiable economic benefits to the region;
(g) Recognize the value of current workers in existing jobs that support the energy
infrastructure of Los Angeles County and Southern California (e.g. union and prevailing wage jobs, local
workforce development, apprenticeship programs, and local hire). The Authority, as a leader in the shift
to clean energy, commits to ensuring it will take steps to minimize any adverse impacts to these workers
to ensure a "just transition" to the new clean energy economy;
(h) Support a stable, skilled workforce through such mechanisms as project labor
agreements, collective bargaining agreements, or community benefit agreements, or other workforce
programs that are designed to avoid work stoppages, ensure quality, and benefit local residents by
delivering cost-effective clean energy programs and projects (e.g. new energy programs and increased
local energy investments);
(i) Promote supplier and workforce diversity, including returning veterans and those
from disadvantaged and under -represented communities, to better reflect the diversity of the
region;
(j) Promote personal and community ownership of renewable resources, spurring equitable
economic development and increased resilience, especially in low income communities;
(k) Provide and manage its energy portfolio and products in a manner that provides cost
savings to customers and promotes public health in areas impacted by energy production;
(1) Ensure that low-income households and communities are provided with affordable and
flexible energy options, including the provision of energy discounted rates to eligible low-income
households;
(m) Recognize and address the importance of healthy communities, including those
disproportionately affected by air pollution and climate change;
(n) Use program revenues to provide energy-related programs and services; 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.
1. DEFINITIONS
1.1 "AB 117" means Assembly Bill 117 (Stat. 2002, Ch. 838, codified at Public
Utilities Code Section 366.2), which created Community Choice Aggregation.
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1.2 "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).
1.3 "Agreement" means this Joint Powers Agreement.
1.4 "Authority" means Los Angeles Community Choice Energy Authority.
1.5 "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.
1.6 "Board" means the Board of Directors of the Authority.
1.7 "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.
1.8 "CCA Program" means the Authority's program relating to CCA that is
principally described in Section 2.4 (Purpose) of this Agreement.
1.9 "Days" shall mean calendar days unless otherwise specified by this Agreement.
1.10 "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.
1.11 "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.
1.12 "Initial Costs" mean
s all costs incurred by the Authority relating to the
establishment and initial operation of the Authority, such as the hiring of the
executive, technical, and any administrative 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. The Board shall determine the termination date for
the Initial Costs.
1.13 "Initial Participants" mean
s, for purpose of this Agreement, the County of
Los Angeles, and the cities of ,and any
other Parties joining in accordance with Section 2.3 (Initial Participants) of this
Agreement.
1.14 "Operating Policies and Procedures" means the rules, regulations, policies, bylaws
and procedures governing the operation of the Authority.
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1.15 "Parties" means, collectively, the signatories to this Agreement that have satisfied
the conditions in Sections 2.3 (Initial Participants) or 2.5 (Addition of Parties) of
this Agreement, such that they are considered members of the Authority.
1.16 "Party" means, singularly, a signatory to this Agreement that has satisfied the
conditions in Sections 2.3 (Initial Participants) or 2.5 (Addition of Parties) of this
Agreement, such that it is considered a member of the Authority.
1.17 "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.
2. FORMATION OF LOS ANGELES COMMUNITY CHOICE ENERGY
AUTHORITY
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 County of Los Angeles 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 8.3
(Mutual Termination) of this Agreement, subject to the rights of the Parties to
withdraw from the Authority.
2.2 Formation of the Authority. Under the Act, the Parties hereby create a separate
joint exercise of power agency which is named Los Angeles Community Choice
Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the Authority
is a public agency separate from the Parties. The debts, liabilities or obligations
of the Authority shall not be debts, liabilities or obligations of the individual
Parties unless the governing body of a Party agrees in writing to assume any of
the debts, liabilities or obligations of the Authority. 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 Initial Participants. In addition to Part
ies executing this Agreement on or prior
to the Effective Date, any incorporated municipality, county, or other eligible
public agency may become a Party and recognized as an Initial Participant
provided during the first 180 days after the Effective Date it executes this
Agreement and delivers an executed copy of this Agreement and a copy of the
adopted ordinance required by Public Utilities Code Section 366.2(c)(12) to the
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Authority.
All Initial Participants
to this Agreement
shall be required to
commence
electric
service as soon as practicable, as
determined by the Board.
2.4 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 a means by which the Parties can more effectively develop 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 the Parties and their constituents,
including, but not limited to, establishing and operating a Community Choice
Aggregation program.
2.5 Addition of Parties. After 180 days from the Effective Date any incorporated
municipality, county, or other public agency may become a Party to this
Agreement if all of the following conditions are met:
2.5.1 The adoption of a resolution of the Board admitting the public agency to
the Authority;
2.5.2 The adoption by an affirmative vote of the Board satisfying the
requirements described in Section 4.10 (Board Voting) of this Agreement,
of a resolution authorizing membership into the Authority and establishing
its pro rata share of organizational, planning and other pre-existing
expenditures, and describing additional conditions, if any, associated with
membership;
2.5.3 The adoption by the, public agency of an ordinance 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;
2.5.4 Payment of the membership payment, if any; and
2.5.5 Satisfaction of any reasonable conditions established by the Board.
Pursuant to this Section 2.5 (Addition of Parties), all parties shall be required to
commence electric service as soon as is practicable, as determined by the Board,
as a condition to becoming a Party to this Agreement.
2.6 Continuing Participation. The Part
ies 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, as
described in Section 2.5 (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
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3.1 General Powers. The Authority shall have the powers common to the Parties
and which are necessary or convenient 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. As provided in the Act, the Authority shall be a
public agency separate and apart from the Parties.
3.2 Specific Powers. The Authority shall have all powers common to the Parties and
such additional powers accorded to it by law. The Authority is authorized, in its
own name, to exercise all powers and do all acts necessary and proper to carry out
the provisions of this Agreement and fulfill its purposes, including, but not limited
to, each of the following:
3.2.1
make and enter into contracts;
3.2.2
employ agents and employees, including but not limited to an Executive
Director;
3.2.3
acquire, contract, manage, maintain, and operate any buildings, works or
improvements;
3.2.4
acquire property by eminent domain, or otherwise, except as limited under
Section 6508 of the Act, and to hold or dispose of any property;
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 ("Operating Policies and Procedures"); and
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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.
3.3 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 as a matter of 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 County of Los Angeles.
3.5 Obligations of the Authority. The debts, liabilities, and obligations of the
Authority shall not be the debts, liabilities, and obligations of the Parties unless
the governing body of a Party agrees in writing to assume any of the debts,
liabilities, and obligations of the Authority. 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 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. The governing body of the Authority shall be a Board of
Directors ("Board") consisting of one director for each Party appointed in
accordance with Section 4.2 (Appointment and Removal of Directors) of this
Agreement. The Board, in consultation with the Executive Director, may
determine at any time to consider options to reduce the size of the Board if it
determines that the efficient functioning and operation of the Board would be
improved by having a smaller number of Directors. Any such change to the size
of the Board would require amendment of this Joint Powers Agreement in
accordance with Section 4.11 (Special Voting).
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
one regular Director 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 up to two alternate
Directors who may vote on matters when the regular Director is absent
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from a Board meeting. The person appointed and designated as the
regular Director shall be an elected or appointed member of the governing
body of the Party. The persons appointed and designated as the alternate
Directors may be an elected or appointed member of the governing body
of the Party, an appointed member of an advisory body of the Party, a staff
member of the Party or a member of the public who meets the criteria
below. All Directors and alternates shall be subject to the Board's adopted
Conflict of Interest Code.
(a) Any alternate Director that is a member of the public must have
demonstrated knowledge in energy-related matters through
significant experience in either: 1) an electric utility or company,
agency, or nonprofit providing services to a utility, 2) a regulatory
agency or local government body overseeing an electric utility or a
company, agency, or nonprofit providing services to such an
agency, 3) an academic or nonprofit organization engaged in
research and/or advocacy related to the electric sector.
4.2.2 The Operating Policies and Procedures, to be developed and approved by
the Board in accordance with Section 3.2.12 (Specific Powers), 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
Parry for which its Director and/or alternate Directors have been removed
may appoint a replacement.
4.3 Terms of Office. Each regular and alternate Director shall serve at the pleasure
of the governing body of the Party that the Director represents, and may be
removed as Director by such governing body at any time. If at any time a
vacancy occurs on the Board, the affected Parry shall appoint to fill the position of
the previous Director within 90 days of the date that such position becomes
vacant.
4.4 Purpose of Board. The general purpose of the Board is to:
4.4.1 Provide structure for administrative an
d fiscal oversight;
4.4.2 Retain an Executive Director to oversee day-to-day operations;
4.4.3 Retain legal counsel;
4.4.4 Identify and pursue funding sources;
4.4.5 Set policy;
4.4.6 Maximize the utilization of available resources; and
4.4.7 Oversee all Committee activities.
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4.5 Specific Responsibilities of the Board. The specific responsibilities of the
Board shall be as follows:
4.5.1 Identify Party needs and requirements;
4.5.2 Formulate and adopt the budget prior to the commencement of the fiscal
year;
4.5.3 Develop and implement a financing and/or funding plan for ongoing
Authority operations;
4.5.4 Retain necessary and sufficient staff and adopt personnel and
compensation policies, rules and regulations;
4.5.5 Adopt rules for procuring supplies, equipment, and services;
4.5.6 Adopt rules for the disposal of surplus property;
4.5.7 Establish standing and ad hoc committees as necessary to ensure that the
interests and concerns of each Party are represented and to ensure
operational, technical, and financial issues are thoroughly researched and
analyzed;
4.5.8 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;
4.5.9 Termination of the CCA Program;
4.5.10 Address any concerns of consumers and customers;
4.5.11 Conduct and oversee Authority audits at intervals not to exceed three
years;
4.5.12 Arrange for an annual independent fiscal audit;
4.5.13 Adopt such bylaws, rules an
d 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;
4.5.14 Exercise the Specific Powers identified in Sections 3.2 an
d 4.6 except as
the Board may elect to delegate to the Executive Director; and
4.5.15 Discharge other duties as appropriate or required by statute.
4.6 Startup Responsibilities. The Authority shall have the duty to do the following
within one year of the Effective Date of the Agreement:
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4.6.1 To adopt an implementation plan prepared by the County of Los Angeles,
pursuant to Public Utilities Code Section 366.2(c)(3), for electrical load
aggregation;
4ALL To prepare a statement of intent, pursuant to Public Utilities Code
Section 366.2(c)(4), for electrical load aggregation;
4.6.3 To encourage other qualified public agencies to participate in the
Authority;
4.6.4 To obtain financing and/or funding as is necessary or desirable;
4.6.5 To evaluate the need for, acquire, and maintain insurance.
4.7 Meetings and Special Meetings of the Board. The Board shall hold at least one
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 by resolution or ordinance of the Board. Regular meetings
may be adjourned to another meeting time. Special meetings of the Board may be
called 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.
4.8 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.).
4.9 Quorum; Approvals. A majority of the Directors shall constitute a quorum,
except that less than a quorum may adjourn from time to time in accordance with
law. The affirmative votes of a majority of the Directors who are present at the
subject meeting shall be required to take any action by the Board.
4.10 BoarAV +W
4.10.1 Percentage Vote. Each Director shall have one vote. Action of the Board
on all matters shall require an affirmative vote of a majority of all
Directors who are present at the subject meeting, except when a
supermajority vote is expressly required by this Agreement. When a
supermajority vote is required under Section 4.11 (Special Voting), action
of the Board shall require an affirmative vote of the specified
supermajority of all Directors who are present at the subject meeting. All
votes taken pursuant to this Section 4.10.1 shall be referred to as a
percentage vote. Notwithstanding the foregoing, in the event of a tie in a
percentage vote, the Board can break the tie and act upon an affirmative
voting shares vote as described in section 4.10.2 (Voting Shares Vote).
4.10.2 Voting Shares Vote. In addition to and immediately after an
affirmative
percentage vote three or more Directors may request that a vote of the
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voting shares shall be held. In such event, the corresponding voting
shares, as described in section 4.10.3, of all Directors voting in order to
take an action shall exceed 50%, or such other higher voting shares
percentage expressly required by this Agreement or the Operating Policies
and Procedures of all Directors who are present at the subject meeting.
All votes taken pursuant to this Section 4.10.2 shall be referred to as a
voting shares vote. In the event that any one Director has a voting share
that equals or exceeds that which is necessary to disapprove the matter
being voted on by the Board, at least one other Director shall be required
to vote in the negative in order to disapprove such matter. When a voting
shares vote is held, action by the Board requires both an affirmative
percentage vote and an affirmative voting shares vote.
4.10.3 Voting Shares Formula. When a voting shares vote is requested by
three or more Directors, voting shares of the Directors shall be determined
by the following formula:
(Annual Energy Use/Total Annual Energy) multiplied by 100, where (a)
"Annual Energy Use" means (i) with respect to the first two years
foRowing 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 second 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,
4.11 Special Voting.
4.11.1 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. 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:
(a) Change the designation of Treas
urer or Auditor of the Authority;
(b) Issue bonds or other forms of debt;
(c) Exercise th
e power of eminent domain, subject to prior approval
by the passage of an authorizing ordinance or other legally
sufficient action by the affected Party; and
(d) Amend 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
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notice to all Parties of the action taken and enclose the adopted or
modified documents.
5. INTERNAL ORGANIZATION
5.1 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 sign all contracts on behalf of the Authority, and shall
perform such other duties as may be imposed by the Board. In the absence of the
Chair, the Vice -Chair shall sign contracts and 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.
5.2 Secretary. The Board shall appoint a Secretary, who need not be a member of
the Board, who shall be responsible for keeping the minutes of all meetings of the
Board and all other office records of the Authority.
5.3 Treasurer. The Board shall appoint a qualified person to act as the Treasurer,
who need not be a member of the Board. Unless otherwise exempted from such
requirement, the Authority shall cause an independent audit to be made by a
certified public accountant, or public accountant, in compliance with Section 6506
of the Act. The Treasurer shall act as the depositary of the Authority and have
custody of all the money of the Authority, from whatever source, and as such,
shall have all of the duties and responsibilities specified in Section 6505.5 of the
Act. The Board may require the Treasurer to file with the Authority an official
bond in an amount to be fixed by the Board, and if so requested the Authority
shall pay the cost of premiums associated with the bond. 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 person or entity as the law may provide at the time.
5.4 Auditor. The Board shall appoint a qualified person to act as the Auditor, who
shall not be a member of the Board. The Board may require the Auditor to file
with the Authority an official bond in an amount to be fixed by the Board, and if
so requested the Authority shall pay the cost of premiums associated with the
bond.
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5.5 Executive Director. The Board shall appoint an Executive Director for the
Authority, who shall be responsible for the day-to-day operation and management
of the Authority and the CCA Program. The Executive Director 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 4.5 (Specific
Responsibilities of the Board) of this Agreement or the Operating Policies and
Procedures, or those powers which by law must be exercised by the Board. The
Executive Director may enter into and execute any Energy Contract, in
accordance with criteria and policies established by the Board.
5.6 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.
5.7 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.
5.8 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.
5.9 Commissions, Boards and Committees. The Board may establish an
y advisory
commissions, boards and committees as the Board deems appropriate to assist the
Board in carrying outs its functions and implementing the CCA Program, other
energy programs and the provisions of this Agreement. The Board may establish
rules, regulations, policies, bylaws or procedures to govern any such
commissions, boards, or committees and shall determine whether members shall
be compensated or entitled to reimbursement for expenses.
5.9.1 The Board shall establish the following Advisory Committ
ees:
(a) Executive Committee. The Board shall establish an
executive
committee consisting of a smaller number of Directors. The Board
may delegate to the Executive Committee's such authority as the
Board might otherwise exercise, except that the Board may not
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delegate authority regarding certain essential functions, including
but not limited to, approving the fiscal year budget or hiring or
firing the Executive Director, and other functions as provided in
the Operating Policies and Procedures. The Board may not
delegate to the Executive Committee or any other committee its
authority under Section 3.2.12 to adopt and amend the Operating
Policies and Procedures.
(b) Finance Committee. The Board shall establish a finance
committee consisting of a smaller number of Directors. The
primary purpose of the Finance Committee is to review and
recommend to the Board:
(1) A funding plan;
(2) A fiscal year budget;
(3) Financial policies and procedures to ensure equitable
contributions by Parties;
(4) Such other responsibilities as provided in the Operating
Policies and Procedures, including but not limited to
policies, rules and regulations governing investment of
surplus funds, and selection and designation of financial
institutions for deposit of Authority funds.
(c) Community Advisory Committee. The Board shall establish a
community advisory committee comprised of members of the
public representing key stakeholder communities. The primary
purpose of the Community Advisory Committee shall be to
provide a venue for ongoing citizen support and engagement in the
operations of the Authority.
(d) Meetings of the Advisory Committees. All meetings of the
Advisory Committees shall be held in accordance with the Ralph
M. Brown Act. For the purposes of convening meetings and
conducting business, unless otherwise provided in the bylaws, a
majority of the members of the Advisory Committee shall
constitute a quorum for the transaction of business, except that less
than a quorum or the secretary of each Advisory Committee may
adjourn meetings from time -to -time. As soon as practicable, but no
later than the time of posting, the Secretary of the Advisory
Committee shall provide notice and the agenda to each Party,
Director and Alternate Directors.
(e) Officers of Advisory Committ
ees. Unless otherwise determined
by the Board, each Advisory Committee shall choose its officers,
comprised of a Chairperson, a Vice -Chairperson and a Secretary.
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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.
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 as soon after the Effective Date as
reasonably practicable. .
6.1.3 Termination of CCA Program. Nothing contained in this Section 6 or
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.
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 the Operating Policies and Procedures, the annual budget, and specified
plans and policies defined as the Authority Documents by 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.
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 maybe 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. The Board shall contract with a certified public
accountant or public accountant to make an annual audit of the accounts
LA#4823-8293-8198 vl I8
and records of the Authority, which shall be conducted in accordance with
the requirements of Section 6506 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 Operating Policies and Procedures. The Treasurer
shall draw checks or warrants or make payments by other means for
claims or disbursements not within an applicable budget only upon the
prior approval of the Board.
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
accordance with the Operating Policies and Procedures.
7.3.2 Funding of Initial Costs. Subject to the approval of the Board of
Supervisors, the County of Los Angeles has agreed to provide up to $10
million for funding Initial Costs in establishing the Authority and
implementing the CCA Program. In the event that the CCA Program
becomes operational, the County of Los Angeles shall be reimbursed for
the Initial Costs. The County and the Authority will execute an agreement
specifying the terms and conditions of the Initial Costs provided by the
County, including but not limited to: (a) Repayment of this amount,
which shall be first priority in relation to all other indebtedness of the
Authority; and (b) authorization for the County Auditor -Controller to
conduct an audit of the Authority's books and records (including personnel
records, as necessary) and/or investigation, following reasonable advance
notice from the County, to ensure compliance with the terms and
conditions of the agreement. The Authority may establish a reasonable
time period over which such costs are recovered. In the event that the
CCA Program does not become operational, the County shall not be
entitled to any reimbursement of the Initial Costs they have paid from the
Authority or any other Parry.
7.3.3 Program Costs. The Part
ies 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 charges to CCA
customers receiving such electric services.
7.3.4 General Costs. Costs that are not directly or indirectly attributable to the
provision of electric services under the CCA Program, as determined by
the Board, shall be defined as general costs. General costs shall be shared
LA#4823-8293-5198 vl 19
among the Parties on such bases as the Board shall determine pursuant to
the Authority documents.
7.4 Contributions. Parties are not required under this Agreement to make any
financial contributions. Consumers may subscribe as customers of the Authority
pursuant to the Act and outside of this Agreement and through their on -bill
selections.
7. 4.1 A Parry may, in the appropriate circumstance, and when agreed -to:
(a) Make contributions from its treasury for the purposes set forth in
this Agreement;
(b) Make payments of public funds to defray the cost of the purposes
of the Agreement and Authority;
(c) Make advances of public funds for such purposes, such advances
to be repaid as provided by written agreement; or
(d) Use its personnel, equipment or property in lieu of other
contributions or advances.
(e) No Parly shall be required to adopt any tax, assessment, fee or
charge under any circumstances.
7.5 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.
7.6 Funds. The Treasurer shall receive, have custody of an
d/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
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.
LA k4823-8293-8198 vl i(1
Withdrawal of a Party shall require an affirmative vote of the Party's
governing board.
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 8.4 (Continuing Liability; Refund) of
this Agreement, including, but not limited to, Power Purchase
Agreements. 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 Operating Policies and Procedures 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.
8.2 Involuntary Termination. This Agreement may be terminated with respect to a
Party for material non-compliance with provisions of this Agreement or the
Authority Documents upon an affirmative vote of the Board in which the
minimum percentage vote and percentage voting shares, as described in
Section 4.10 (Board Voting) of this Agreement, shall be no less than 67%
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 8.4 (Continuing
Liability; Refund) of this Agreement. In the event that the Authority decides to
not implement the CCA Program, the minimum percentage vote of 67% shall be
conducted in accordance with Section 4.10 (Board Voting) of this Agreement.
LA !!4823-8293-8198 vl 21
8.3 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.
8.4 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 date
of its withdrawal or involuntary termination, it being agreed that the Party shall
not be responsible for any claims, demands, damages, or liabilities arising after
the date of the Party's withdrawal or involuntary termination. In addition, such
Party also shall be responsible for any costs or obligations associated with the
Party's participation in any program in accordance with the provisions of any
agreements relating to such program provided such costs or obligations were
incurred prior to the withdrawal of the Party. The Authority may withhold funds
otherwise owing to the Party or may require the Party to deposit sufficient funds
with the Authority, as reasonably determined by the Authority, to cover the
Party's liability for the costs described above. Any amount of the Party's funds
held on deposit with the Authority above that which is required to pay any
liabilities or obligations shall be returned to the Party.
8.5 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:
8.5.1 May sell or liquidate Authority property; and
8.5.2 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 Part
ies 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 or arbitration in the manner agreed upon by
the Party or Parties and the Authority. The Parties agree that each Party may
specifically enforce this section 9.1 (Dispute Resolution). In the event that
nonbinding mediation or arbitration is not initiated or does not result in the
settlement of a dispute within 60 days after the demand for mediation or
arbitration is made, any Party and the Authority may pursue any remedies
provided by law.
LA#4823-8293-8198 vl 22
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.
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 under this Agreement.
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 a -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 an
d 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 9.6 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 9.6 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
LA H4823-8293.8198 vl 23
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.
9.1 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.
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 Temple
By:
ATTEST:
Peggy K o, ity Clerk
LA H4823-8293-8198 vl 24