HomeMy WebLinkAbout7/19/2017 - STAFF REPORTS - 1.G. .y
a
V N
w
LL ; City Council Staff Report
wR�r� 0.1p`O 4<lFOAN�
DATE: July 19, 2017 CONSENT CALENDAR
SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 1928,
AUTHORIZING IMPLEMENTATION OF A COMMUNITY CHOICE
AGGREGATION PROGRAM, AND APPROVING THE "DESERT CITIES
ENERGY CHOICE" JOINT POWERS AGREEMENT.
FROM: David H. Ready, City Manager
BY: Office of the City Clerk
SUMMARY:
The City Council will consider adoption of Ordinance No. 1928.
RECOMMENDATION:
Waive the second reading of the ordinance text in its entirety, read by title only, and adopt
Ordinance No. 1928, "AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AUTHORIZING IMPLEMENTATION OF A COMMUNITY CHOICE
AGGREGATION PROGRAM, AND APPROVING THE "DESERT CITIES ENERGY
CHOICE" JOINT POWERS AGREEMENT."
STAFF ANALYSIS:
On July 5, 2017, Ordinance No. 1928 was introduced for first reading, as noted below:
ACTION: 1) Waive reading of the full text in its entirety, read by title only, and
introduce for first reading Ordinance No. 1928, "AN ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AUTHORIZING IMPLEMENTATION OF A
COMMUNITY CHOICE AGGREGATION PROGRAM, AND APPROVING THE
"DESERT CITIES ENERGY CHOICE" JOINT POWERS AGREEMENT."
Approved by a unanimous (5-0-0) vote of the City Council.
AYES: Councilmembers Kors, Mills, Roberts, Mayor Pro Tern Foat and Mayor
Moon
NOES: None
ABSENT: None
ITEM NO.
ADOPTION OF ORDINANCE NO. 1928
July 19, 2017
Page 2 of 2
This report provides for the City Council to waive further reading and adopt the ordinance.
The ordinance shall be effective 30-days from adoption.
Kathleen D. Hart, MMC David H. Ready, Esq
Interim City Clerk City Manager
/cab
Attachment:
Ordinance No. 1928
M 02
ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AUTHORIZING IMPLEMENTATION OF A
COMMUNITY CHOICE AGGREGATION PROGRAM, AND
APPROVING THE "DESERT CITIES ENERGY CHOICE"
JOINT POWERS AGREEMENT.
City Attorney Summary
This Ordinance authorizes the execution of a joint powers agreement, and
approves the City's joinder in a joint powers agency with other CVAG
cities, to implement and administer a community-wide electricity
aggregation program known as Community Choice Aggregation.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, STATE OF
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City of Palm Springs, California has been actively investigating
options to provide electric services to constituents within its jurisdiction with the intent of
achieving greater local involvement over the provision of electric services and promoting
competitive and renewable energy.
SECTION 2. On September 24, 2002, the Governor signed into law Assembly
Bill 117 (Stat. 2002, ch. 838; see California Public Utilities Code section 366.2;
hereinafter referred to as the "Act"), which authorizes any California city or county,
whose governing body so elects, to combine the electricity load of its residents and
businesses in a community-wide electricity aggregation program known as Community
Choice Aggregation ("CCA").
SECTION 3. The Act expressly authorizes participation in a CCA program
through a joint powers agency, and to this end the City has been participating since
2016 in the evaluation of a proposal for the formation of a joint powers agency to
implement and administer a CCA program for the Coachella Valley region.
SECTION 4. As described in the Joint Powers Agreement attached to and
incorporated in this Ordinance as Exhibit A, a CCA program implemented and
administered by and through joint powers agency "Desert Cities Energy Choice,"
whether by that name or an alternative name that emerges for the joint powers agency
that will administer and implement the CCA program for the Coachella Valley (in any
case referenced as DCEC herein), provides an opportunity to accomplish the following:
a) Reduce greenhouse gas emissions related to the use of power throughout the
jurisdictions of the participating cities and neighboring regions;
b) Provide electric power and other forms of energy to customers at a competitive
cost;
c) Carry out programs to reduce energy consumption;
- . 03
Ordinance No. 1928
Page 2
d) Stimulate and sustain the local economy by developing local jobs in renewable
and conventional energy;
e) Promote long-term electric rate stability, energy security and reliability for
residents through local control of electric generation resources.
SECTION S. Through Docket No. R.03-10-003, the California Public Utilities
Commission has issued various decisions and rulings addressing the implementation of
Community Choice Aggregation programs, including the recent issuance of a procedure
by which the California Public Utilities Commission will review "Implementation Plans,"
which are required for submittal under the Act as the means of describing the
Community Choice Aggregation program and assuring compliance with various
elements contained in the Act.
SECTION 6. A final Implementation Plan for the CCA program will be submitted
to the California Public Utilities Commission by DCEC as soon after the formation of the
joint powers agency as reasonably practicable, confirming that DCEC's CCA program is
in compliance with all requirements of the Act.
SECTION 7. The Act requires each jurisdiction participating in the CCA program
to individually adopt an ordinance ("CCA ordinance") electing to implement a
Community Choice Aggregation program within its jurisdiction by and through its
participation in Desert Cities Energy Choice.
SECTION 8. Based upon all of the above, the City Council approves the Joint
Powers Agreement attached hereto as Exhibit A and elects to implement a Community
Choice Aggregation program within the City's jurisdiction by and through the City's
participation in Desert Cities Energy Choice, subject to the City's right to forego the
actual implementation of a Community Choice Aggregation program pursuant to
specified withdrawal rights described in the Joint Powers Agreement. The Mayor is
hereby authorized to execute the Joint Powers Agreement in a form substantially similar
to Exhibit A, subject to non-substantive and/or minor revisions approved or
recommended by staff employed by the Coachella Valley Association of Governments
during the process of the consideration of the Joint Powers Agreement by prospective
future members of DCEC, and any other related documents for program
implementation.
SECTION 9. If any section, subsection, sentence, clause, phrase or word of this
Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of this Ordinance. The
City Council hereby declares it would have passed and adopted this Ordinance and
each and all provisions hereof irrespective of the fact that any one or more of said
provisions be declared invalid.
SECTION 10. The City Council finds and determines that this Ordinance is not
subject to the California Environmental Quality Act (Public Resources Code Section
21000 et seq.) pursuant to Section 15060(c)(2) and 15060(c)(3) of the State Guidelines,
04
2
Ordinance No. 1928
Page 3
because the Ordinance will not result in a direct or reasonably foreseeable indirect
physical change in the environment, and is not a "project," as that term is defined in
Section 15378 of the State Guidelines.
SECTION 11, The Mayor shall sign and the City Clerk shall certify to the
passage and adoption of this Ordinance and shall cause the same, or the summary
thereof, to be published and posted pursuant to the provisions of law, and this
Ordinance shall take effect thirty (30) days after its adoption.
SECTION 12. If any section, subsection, clause or phrase of this Ordinance is
for any reason held by a court of competent jurisdiction to be invalid, such a decision
shall not affect the validity of the remaining portions of this Ordinance. The City Council
of the City of Palm Springs, hereby declares that it would have passed this Ordinance
and each section of subsection, sentence, clause and phrase thereof, irrespective of the
clauses or phrases being declared invalid.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY COUNCIL
THIS 191h DAY OF JULY, 2017.
ROBERT MOON, MAYOR
ATTEST:
KATHLEEN D. HART, MMC
INTERIM CITY CLERK
05
3
Ordinance No. 1928
Page 4
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, KATHLEEN D. HART, Interim City Clerk of the City of Palm Springs, hereby
certify that Ordinance No. 1928 is a full, true and correct copy, and was introduced at a
regular meeting of the Palm Springs City Council held on July 5, 2017, and adopted at a
regular meeting of the Palm Springs City Council on the 19th day of
July 2017, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
KATHLEEN D. HART, MMC
INTERIM CITY CLERK
06
4
COACHELLA VALLEY COMMUNITY ENERGY AUTHORITY
(placeholder, JPA name to be determined)
JOINT POWERS AGREEMENT
This Joint Powers Agreement ("Agreement'), effective as of , 2017 is made and
entered into pursuant to the provisions of Title 1, Division 7, Chapter 5,Article 1 (Section 6500
at seq.) of the California Government Code relating to the joint exercise of powers among the
parties set forth in Exhibit B (individually"Party"or"Member", collectively"Parties" or
"Members").The term"Parties" or"Members"shall also include an incorporated municipality or
county added to this Agreement in accordance with Section 2.4.
RECITALS
A. The Parties share various powers under California law, including but not limited to
the power to purchase, supply, and aggregate electricity for themselves and
customers within their jurisdictions.
B. In 2006, the State Legislature adopted AS 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
AS 32 which will require local governments to develop programs to reduce
greenhouse gas emissions.
C. The purposes for entering into this Agreement include:
a. Reducing greenhouse gas emissions related to the use of power
throughout the jurisdictions of the Parties and neighboring regions;
b. Providing electric power and other forms of energy to customers at a
competitive cost;
C. Carrying out programs to reduce energy consumption;
d. Stimulating and sustaining the local economy by developing local jobs in
renewable and conventional energy; and
e. Promoting long-term electric rate stability,energy security and reliability for
residents through local control of electric generation resources.
D. It is the mission and purpose of this Agreement to build a Community Choice
Aggregation program that is locally controlled and delivers cost-competitive clean
electricity, product choice, price stability, energy efficiency and greenhouse gas
emission reductions.
E. It is the intent of this Agreement to promote the development and use of a wide
range of renewable and efficient energy sources and energy efficiency programs,
including but not limited to solar, wind, and biomass energy production. The
Coachella Valley Community Choice Aggregation 1
Draft JPA Agreement,June 2017-Ver.2
07
purchase of renewable power and greenhouse gas-free energy sources will be the
desired approach to decrease regional greenhouse gas emissions and accelerate
the State's transition to clean power resources to the extent feasible. The CVCEA
will also add increasing levels of locally generated renewable resources as these
projects are developed and customer energy needs expand.
F. The Parties desire to establish a separate public agency, known as the Coachella
Valley Community Energy Authority or CVCEA, 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.
G. The Parties anticipate adopting an ordinance electing to implement through the
CVCEA a common Community Choice Aggregation (CCA) program, an electric
service enterprise available to cities and counties pursuant to California Public
Utilities Code Sections 331.1(b) and 366.2. The first priority of the CVCEA will be
the consideration of those actions necessary to implement the CCA Program.
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:
ARTICLE 1: DEFINITIONS AND EXHIBITS
1.1 Definitions. Capitalized terms used in the Agreement shall have the meanings
specked 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 the Parties
Exhibit C: Annual Energy Use
Exhibit D: Voting Shares
Exhibit E: Signatures
ARTICLE 2: FORMATION OF COACHELLA VALLEY COMMUNITY ENERGY AUTHORITY
2.1 Effective Date and Term. This Agreement shall become effective and CVCEA
shall exist as a separate public agency on 2017 or when the
Parties execute this Agreement, whichever occurs later. The CVCEA shall
provide notice to the Parties of the Effective Date. CVCEA shall continue to
exist, and this Agreement shall be effective, until this Agreement is terminated in
accordance with Section 6.4, subject to the rights of the Parties to withdraw from
CVCEA.
Coachella Valley Community Choice Aggregation 2
Draft JPA Agreement,June 2017—Ver.2
08
2.2 Formation. There is formed as of the Effective Date a public agency named the
Coachella Valley Community Energy Authority. Pursuant to Sections 6506 and
6507 of the Act, CVCEA is a public agency separate from the Parties. Pursuant
to Sections 6508.1 of the Ad, the debts, liabilities or obligations of CVCEA shall
not be debts, liabilities or obligations of the individual Parties unless the
governing board of a Party agrees in writing to assume any of the debts, liabilities
or obligations of CVCEA. A Party who has not agreed to assume an Authority
debt, liability or obligation shall not be responsible in any way for such debt,
liability or obligation even if a majority of the Parties agree to assume the debt,
liability or obligation of CVCEA. Notwithstanding Section 7.4 of this Agreement,
this Section 2.2 may not be amended unless such amendment is approved by
the governing board of each Party.
2.2.1 Name, CVCEA may change its name at anytime through adoption of a
resolution of the Board of Directors.
2.3 Pu ose. The purpose of this Agreement is to establish an independent public
agency in order to exercise powers common to each Party to build a Community
Choice Aggregation program that achieves significant, long-term GHG emission
reductions by offering clean, cost effective and price stable electricity to
residents, businesses, and agricultural producers while carrying out innovative
programs to reduce customer energy use, and to promote local renewable and
efficient energy production technologies. To that end, CVCEA will study,
promote,develop, conduct, operate, and manage energy, energy efficiency and
conservation, and other energy-related programs, and to exercise all other
powers necessary and incidental to accomplishing this purpose. Without limiting
the generality of the foregoing, the Parties intend for this Agreement to be used
as a contractual mechanism by which the Parties are authorized to participate in
the CCA Program, as further described in Section 4.1. The Parties intend that
other agreements shall define the terms and conditions associated with the
implementation of the CCA Program and any other energy programs approved
by CVCEA.
2.4 Membership in CVCEA.
2.4.1 The initial Members of CVCEA are the Cities of Blythe, Cathedral City,
Desert Hot Springs, Indian Wells, Palm Desert, and Palm Springs.
2.4.2 Any city or county may request to become a member of CVCEA by
submitting a resolution adopted by its City Council or Board of
Supervisors to the Board of CVCEA. The Board shall review the request
and shall vote to approve or disapprove the request. The Board may
establish conditions, including but not limited to financial conditions,
under which the city or county may become a member of CVCEA. The
Board shall notify the then members of CVCEA of this request and the
date that the request will be on the Board's meeting agenda for action.
The date set for Board action shall be at least forty-five (45)days from the
date the notice is mailed to the members. If the request is approved by
the Board, the city or county shall become a member of CVCEA under
Coachella Valley Community Choice Aggregation 3
Draft JPA Agreement,June 2017—Ver.2 h
�q
the terms and conditions set forth by the Board and upon approval and
execution of this Agreement by the requesting city or county.
2.5 Powers. CVCEA shall have all powers common to the Parties and such
additional powers accorded to it by law. CVCEA is authorized, in its own name,
to exercise all powers and do all acts necessary and proper to cant'out the
provisions of this Agreement and fulfill its purposes, including, but not limited to,
each of the following powers, subject to the voting requirements set forth in
Section 3.17:
2.5.1 to make and enter into contracts;
2.5.2 to employ agents and employees, including but not limited to an
Executive Officer;
2.5.3 to acquire, contract, manage, maintain, and operate any buildings,
infrastructure,works, or improvements;
2.5.4 to acquire property by eminent domain, or otherwise, except as limited
under Section 6508 of the Act, and to hold or dispose of any property;
however, CVCEA shall not exercise the power of eminent domain within
the jurisdiction of a Party over its objection without first meeting and
conferring in good faith;
2.5.5 to lease any property;
2.5.6 to sue and be sued in its own name;
2.5.7 to incur debts, liabilities, and obligations, including but not limited to loans
from private lending sources pursuant to its temporary borrowing powers
such as Government Code Sections 53850 et seq. and authority under
the Act;
2.5.8 to form subsidiary or 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;
2.5.9 to issue revenue bonds and other forms of indebtedness;
2.5.10 to apply for, accept, and receive all licenses, permits, grants, loans or
other aids from any federal, state, or local public agency;
2.5.11 to 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;
2.5.12 to adopt Operating Rules and Regulations;
2.5.13 to make and enter into service agreements relating to the provision of
services necessary to plan, implement, operate and administer the CCA
Coachella Valley Community Choice Aggregation 4
Draft 1PA Agreement,June 2017—Ver.2
10
Program and other energy programs, including the acquisition of electric
power supply and the provision of retail and regulatory support services;
and
2.5.14 to permit additional Parties to enter into this Agreement after the Effective
Date and to permit another entity authorized to be a community choice
aggregator to designate CVCEA to act as the community choice energy
aggregator on its behalf.
2.6 Limitation on Powers. As required by Government Code Section 6509, the
power of CVCEA is subject to the restrictions upon the manner of exercising
power possessed by the City of(insert name of one Participating city.
ARTICLE 3: GOVERNANCE AND INTERNAL ORGANIZATION
3.1 Governing Body. CVCEA shall be governed by a legislative body known as the
Board of Directors ('Board"). The initial Board shall consist of one (1) director
appointed by each of the initial members. Each Director shall serve at the
pleasure of the governing board of the Party appointing such Director, and may
be removed as Director by such governing board at any time. If at any time a
vacancy occurs on the Board, a replacement shall be appointed to fill the position
of the previous Director within 60 days of the date that such position becomes
vacant. Directors shall be elected officials or senior staff of the appointing Party
that is the signatory to this Agreement. Each Party may appoint an alternate to
serve in the absence of its Director. Alternates may be either elected officials or
senior staff of the appointing Parry that is the signatory to this Agreement.The
Board shall exercise all powers and conduct all business of CVCEA, either
directly or by delegation to other bodies or persons pursuant to this Agreement.
If additional cities or counties join CVCEA, as set forth in section 2.4, each city or
county that becomes a member of CVCEA shall be entitled to one(1) director
and one(1) alternate appointed as set forth above.
Ex Officio Directors. The Board may appoint ex officio members of the Board.
Ex officio directors shall receive all meeting notices, shall have the right to
participate in Board discussions and the right to place items on the agenda but
shall not be counted towards a quorum and shall have no vote.
3.2 Regular Board Meetings. The Board shall hold at least one regular annual
meeting and shall provide for such other regular meetings as it deems
necessary. Meetings of the Board shall be held at such locations within one of
the member jurisdictions iR the Gearhella Valley or Pale VeFde Valley, and at
such times as may be designated from time to time by the Board.
3.3 Special Meetings of the Board. Subject to all noticing requirements of The Brown
Act, special meetings of the Board may be called by the Chair,to be held at such
times and places within one of the member jurisdictions
Palo %4 w49 Va% as may be ordered by the Chair. A majority of the Board may
also call a special meeting for any purpose.
Coachella Valley Community Choice Aggregation 5
Draft JPA Agreement,June 2017—Ver.2
11
3.4 Chair and Vice-Chair. The Board shall annually elect from its membership a
Chair and Vice-Chair to serve for a one-year term.
3.5 Conduct of Meetinas.The Chair or, in the absence of the Chair, the Vice-Chair,
shall preside at all meetings of the Board.
3.6 Resionation of a Director. Any Director may resign effective on giving written
notice to the Board and the other Members, unless the notice specifies a later
time for the effectiveness of such resignation. A successor shall be appointed by
the affected Member as provided for in this Agreement.
3.7 Quorum. Except as otherwise provided in this Agreement, CVCEA shall act only
upon a majority of a quorum of the Board. A quorum of any meeting of Directors
shall consist of a majority of the Directors then designated by and serving on
behalf of the Members. Ex officio, non-voting Participants shall not be included
when calculating the number of Directors necessary to constitute a quorum or the
number of votes necessary to approve an action. In the event that a Member
has failed to designate a Director, or a Member's designated Director has died,
resigned, left office, been terminated or is otherwise unwilling or unable to act as
the designating Members representative, and a replacement Director has not yet
been designated, and there is no designated alternate, such that a Member has
no duly acting representative on the Board,then that Members vacant Board
position shall not be included when calculating the number of Directors
necessary to constitute a quorum or the number of votes necessary to approve
an action. Except as otherwise provided in this Agreement, every act or decision
made by a majority of the Directors present at a meeting duly held at which a
quorum is present is the act of the Board. In the absence of a quorum, any
meeting of the Board may be adjourned from time to time by a vote of the
majority present, but no other business may be transacted except as provided for
in this Section.
3.8 Other Officers, The Executive Officer of CVCEA shall be the secretary of
CVCEA, or as otherwise determined by the Board. Any officer, employee or
agent of any Member of CVCEA may also be an officer, employee, or agent of
any of the Members. CVCEA shall have the power to appoint such additional
officers and to employ such employees and assistants as may be appropriate.
Each and all of said officers,employees and assistants shall serve at the
pleasure of CVCEA and shall perform such duties and shall have such powers as
CVCEA may, from time to time, determine. Any officer may resign at any time by
giving written notice to the secretary. Any such resignation shall be effective
upon receipt of such notice or at any later time specified in the notice. Officers
shall assume the duties of their offices immediately after their appointment and
shall hold office until their successors are appointed, except in the case of their
removal or resignation. Vacancies of officers shall be filled by appointment of the
Board and such appointee shall hold office until the appointment of his or her
successor.
Coachella Valley Community Choice Aggregation 6
Draft JPA Agreement,June 2017—Ver.2
3.9 Minutes. The secretary of CVCEA shall cause to be kept minutes of regular,
adjourned regular and special meetings of the Board. The secretary shall cause
a copy of all minutes, along with copies of all ordinances and resolutions, to be
forwarded to each of the Parties hereto.
3.10 Rules. A majority of Directors may adopt rules governing meetings if not
inconsistent or in conflict with this Agreement. In the absence of rules adopted
by the Directors, Roberts' Rules of Order, as they may be amended from time to
time, shall govern the meetings of the Board in so far as they are not inconsistent
or in conflict with this Agreement or any CVCEA bylaws.
3.11 Powers and Functions of the Board. The Board shall exercise general
governance and oversight over the business and activities of CVCEA, consistent
with this Agreement and applicable law. The Board shall provide general policy
guidance to the CCA Program. Board approval shall be required for any of the
following actions:
3.11.1 The issuance of bonds or any other financing even if program
revenues are expected to pay for such financing.
3.11.2 The appointment or termination of the Executive Officer and General
Counsel.
3.11.3 The appointment or removal of officers described in Section 3.17,
subject to Section 3.17.1.
3.11.4 Any decision to provide retirement or post-retirement benefits that
are defined benefit programs, subject to the requirements of section
5.3.4, below.
3.11.5 The adoption of the Annual Budget.
3.11.6 The adoption of an ordinance.
3.11.7 The approval of agreements, except as provided by Section 3.12,
3.11.8 The initiation or resolution of claims and litigation where CVCEA will
be the defendant, plaintiff, petitioner, respondent, cross complainant
or cross petitioner, or intervenor; provided, however, that the
Executive Officer or General Counsel, on behalf of CVCEA, may
intervene in, become a party to, or file comments with respect to any
proceeding pending at the California Public Utilities Commission,the
Federal Energy Regulatory Commission, or any other administrative
agency, without approval of the Board as long as such action is
consistent with any adopted Board policies.
3.11.9 The setting of rates for power sold by CVCEA and the setting of
charges for any other category of service provided by CVCEA.
3.11.10 Termination of the CCA Program.
Coachella Valley Community Choice Aggregation 7
Draft JPA Agreement,June 2017—Ver.2
13
3.12 CVAG's Participation. CVAG shall provide, under contract with CVCEA,
administrative services required by CVCEA during the first five (5)years of the
implementation of the CVCEA; and thereafter as the administrative services
contract may be renewed from time to time by CVCEA, and shall exercise such
other powers and duties as the Board deems necessary to achieve the purpose
of this Agreement. During any such term, CVAG's Executive Director may serve
as the Secretary of CVCEA.
3.13 Executive Officer. Except as may be provided pursuant to any administrative
services agreement referenced in Section 3.12, the Board of Directors shall have
the authority to appoint an Executive Officer for CVCEA, who shall be
responsible for the day-today operation and management of CVCEA and the
CCA Program. The Executive Officer may be retained under contract with
CVCEA, be an employee of CVCEA, be an employee of CVAG, or be an
employee of one of the Parties. The Executive Officer shall report directly to the
Board and serve as staff to CVCEA. Except as otherwise set forth in this
Agreement,the Executive Officer may exercise all powers of CVCEA, including
the power to hire, discipline and terminate employees as well as the power to
approve any agreement if the total amount payable under the agreement is less
than $100,000 in any fiscal year, or such higher amount as may be established
by the Board from time to time, by resolution of the Board, except the powers
specifically set forth in Section 3.11 or those powers which by law must be
exercised by the Board of Directors. The Executive Officer shall serve at the
pleasure of the Board.
3.14 CVCEA Staff. Except as may be provided pursuant to any administrative services
agreement referenced in Section 3.12, CVCEA may contract with CVAG for staff
services, retain its own staff, or contract with another entity for services. Unless
other employment is approved by the Commission, the CVCEA Executive Officer
may utilize CVAG staff as may be necessary to accomplish the purposes of
CVCEA. CVAG staff time, as well as office expenses, direct and indirect
overhead, shall be charged to CVCEA utilizing direct billing and other accounting
practices that provide for a clear separation of funds,
3.15 Commissions. Boards, and Committees
3.15.1 The Board may establish commissions, boards or committees, including
but not limited to a standing executive committee of the Board, as the
Board deems appropriate,to assist the Board in carrying out its authority
and functions under this Agreement and may delegate authority to such
commission, board or commission as set forth in a Board resolution.
Such delegation may be modified, amended or revoked at any time the
Board may deem appropriate. Any decision delegated pursuant to this
subsection may be appealed to the Board, as the Board so determines.
3.15.2 The Board may also 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, other
energy programs and the provisions of this Agreement.
Coachella Valley Community Choice Aggregation g
Draft 1PA Agreement,June 2017—Ver.2
14
3.15.3 Any board, commission or committee formed under this section shall
comply with the requirements of the Ralph M. Brown Act. 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.
3.16 Director Compensation. Directors shall serve without compensation from
CVCEA. However, Directors may be compensated by their respective appointing
authorities. The Board, however, may adopt by resolution a policy relating to the
reimbursement by CVCEA of expenses or other costs incurred by Directors.
3.17 Voting. In general, as described in Section 3.17.3, action by CVCEA Board will
be taken solely by a majority vote of the total number of Directors present. In
addition, as described in Section 3.17.4, upon request of two (2) Directors, a
weighted vote by shares will also be conducted. When such a request is made,
an action must be approved by both a majority vote of Directors present and a
majority of the Weighted Voting Shares present. No action may be approved
solely by a majority vote by shares. The voting shares of Directors and approval
requirements for actions of the Board shall be as follows:
3.17.1 Weighted Voting Shares
Each member agency shall have a Voting Share as determined by the
following formulas:
(a) Pro Rate Voting Share. Each Member shall have an equal voting
share determined by the following formula: ([t /total number of
Members] multiplied by Yz), expressed as a percentage to two
decimal places; and
(b) Annual Energy Voting Share. Each Member shall have an
additional voting share determined by the following formula:
([Total Annual Energy Use(expressed in MWh) in the Member's
jurisdiction/combined Total Annual Energy Use in all Members'
jurisdictions] multiplied by expressed as a percentage to two
decimal places. Annual Energy Use values are to be based on
total CCA-related retail energy sales of all electric customer
accounts as of December 31 of the most recent year for which
such data is available. In the absence of actual data,the Board
may approve the use of reasonably estimated Annual Energy Use
values.
(c) Weighted Voting Share. Each Member's Weighted Voting Share
shall be the respective sum of the values computed in (a) and (b)
above, expressed as a percentage to two decimal places. The
combined total Weighted Voting Shares of all Members is 100.00
percent.
Coachella Valley Community Choice Aggregation 9
Draft JPA Agreement,June 2017-Ver.2
15
3.17.2 Exhibit Showing Weighted Voting Shares. The initial Weighted Voting
Shares are set forth in Exhibit D based on data available as of the
Effective Date of this Agreement. Exhibit D shall be revised no less than
annually as necessary to account for changes in the number of Members
and or changes in the Members' annual MWh retail energy usage.
Adjustments to Exhibit D shall be approved by the Board.
3.17.3 Action Approval Requirements. Except as provided in Sections 3.17 and
3.17.4 and 3.17.5, actions of the Board shall require the affirmative vote
of a majority of Directors present at the meeting.
3.17.4 Option for Approval by Voting Shares. Notwithstanding Section 3.17.3,
any two(2) Directors present at a meeting may demand that approval of
any matter related to the CCA Program be determined on the basis of
both Weighted Voting Shares and by the affirmative vote of a majority of
Directors present at the meeting. If two Directors make such a demand
with respect to approval of any such matter, then approval of such matter
shall require the affirmative vote of a majority of Directors present at the
meeting and the affirmative vote of Directors having a majority of
Weighted Voting Shares present, as determined by Section 3.17.1 except
as provided in Section 3.17.5.
3.17,5 Soecial Voting Requirements for Certain Matters.
(a) Two-Thirds and Weighted Voting Approval Requirements Relating
to Sections 6.2 and 7.4. Action of the Board on the matters set
forth in Section 6.2 (involuntary termination of a Member), or
Section 7.4 (amendment of this Agreement) shall require the
affirmative vote of at least two-thirds of Directors present;
provided, however, that: (i) notwithstanding the foregoing, any
two(2) Directors present at a meeting may demand that the vote
be determined on the basis of both Weighted Voting Shares and
by the affirmative vote of Directors present, and if any two(2)
Directors make such a demand, then approval shall require the
affirmative vote of both at least two-thirds of Directors present and
the affirmative vote of Directors having at least two-thirds of the
Weighted Voting Shares present, as determined by Section
3.17.1; and (ii)for votes to involuntarily terminate a Member under
Section 6.2, the Director for the Member subject to involuntary
termination may not vote, and the number of Directors constituting
two-thirds of all Directors, and the Weighted Voting Share of each
Member shall be recalculated as if the Member subject to possible
termination were not a Member.
(b) Seventy-Five Percent Special Voting Requirements for Eminent
Domain and Contributions or Pledge of Assets.
(i) A decision to exercise the power of eminent domain on
behalf of CVCEA to acquire any property interest other
than an easement, right-of-way, or temporary construction
Coachella Valley Community Choice Aggregation 10
Draft JPA Agreement,June 2017—Ver.2 C
10
easement shall require a vote of at least 75% of all
Directors.
(ii) The imposition on any Member of any obligation to make
contributions or pledge assets as a condition of continued
participation in the CCA Program shall require a vote of at
least 75%of all Directors and the approval of the
governing boards of the Members which are being asked
to make such contribution or pledge.
(iii) Notwithstanding the foregoing, any two (2) Directors
present at the meeting may demand that a vote under
subsections(i)or(ii) be determined on the basis of
Weighted Voting Shares and by the affirmative vote of
Directors, and if any two (2) Directors make such a
demand,then approval shall require both the affirmative
vote of at least 75% of Directors present and the
affirmative vote of Directors having at least 75% of the
Weighted Voting Shares present, as detennined by
Section 3.17.1. For purposes of this section, "imposition
on any Member of any obligation to make contributions or
pledge assets as a condition of continued participation in
the CCA Program"does not include any obligations of
a withdrawing or terminated Member imposed under
Section 6.3.
3.18 Meetings and Special Meetings of the Board. The Board shall hold at least
four(4)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 and Emergency
Meetings of the Board may be called in accordance with the provisions of
California Government Code Sections 54956 and 54956.5. Directors may
participate in meetings telephonically,with full voting rights, only to the extent
permitted by law. All meetings shall be conducted in accordance with the
provisions of the Ralph M. Brown Act(California Government Code Sections
54950 et seq.).
3.19 Selection of Board Officers.
3.19.1 Chair and Vice Chair. The Directors shall select, from among
themselves, a Chair, who shall be the presiding officer of all Board
meetings, and a Vice Chair, who shall serve in the absence of the Chair.
The Chair and Vice Chair shall serve at the pleasure of the Board. There
shall be no limit on the number of terms held by either the Chair or Vice
Chair. The office of either the Chair or Vice Chair shall be declared
vacant and a new selection shall be made if.
Coachella Valley Community Choice Aggregation 11
Draft JPA Agreement,June 2017-Ver.2
17
(a) the person serving dies, resigns, or the Member that the person
represents removes the person as its representative on the Board,
or
(b) the Member that he or she represents withdraws from CVCEA
pursuant to the provisions of this Agreement.
3.19.2 Secretary. The Secretary shall be responsible for keeping the minutes of
all meetings of the Board and all other official records of CVCEA.
3.19.3 Treasurer and Auditor. The Treasurer shall function as the combined
offices of Treasurer and Auditor pursuant to Government code section
6505.6 and shall strictly comply with the statutes related to the duties and
responsibilities specified in Section 65.5 of the Act. The Treasurer for
CVCEA shall be the depository and have custody of all money of CVCEA
from whatever source and shall draw all warrants and pay demands
against CVCEA as approved by the Board. The Treasurer shall cause an
independent audit(s)of the finances of CVCEA 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 person or
entity as the law may provide at the time. The duties and obligations of
the Treasurer are further specified in Article 5. The Treasurer shall serve
at the pleasure of the Board.
3.20 Administrative Services Provider. The Board may appoint one or more
administrative services providers to serve as CVCEA's agent for planning,
implementing, operating and administering the CCA Program, and any other
program approved by the Board. The appointed administrative services provider
may be one of the Members. A separate services agreement shall set forth the
terms and conditions by which the appointed administrative services provider(s)
shall perform or cause to be performed tasks necessary for planning,
implementing, operating and administering the CCA Program and other approved
programs. Any such services agreement shall set forth the terms and the
circumstances under which the services agreement may be terminated by
CVCEA. This section shall not in any way be construed to limit the discretion of
CVCEA to hire its own employees to administer all or any portion of the CCA
Program or any other program.
ARTICLE 4: IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
4.1 Preliminary implementation of the CCA Program.
4.1.1 Enabling Ordinance. To be eligible to participate in the CCA Program,
each Party must adopt an ordinance in accordance with Public Utilities
Code Section 366.2(c)(12)for the purpose of specifying that the Party
Coachella Valley Community Choice Aggregation 12
Draft 1PA Agreement,June 2017—Ver.2
I8
Intends to implement a CCA Program by and through its participation in
CVCEA.
4.1.2 Implementation Plan. CVCEA shall cause to be prepared 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. The
Implementation Plan shall not be filed with the Public Utilities Commission
until it is approved by the Board in the manner provided by Section 3.17.
4.1.3 Termination of CCA Program. Nothing contained in this Article or this
Agreement shall be construed to limit the discretion of CVCEA to
terminate the implementation or operation of the CCA Program at any
time in accordance with any applicable requirements of state law.
4.2 Authority Documents. The Parties acknowledge and agree that the affairs of
CVCEA will be implemented through various documents duly adopted by the
Board through Board resolution. The Parties agree to abide by and comply with
the terms and conditions of all such documents that may be adopted by the
Board, subject to the Parties' right to withdraw from CVCEA as described in
Article 6.
ARTICLE 5: FINANCIAL PROVISIONS
5.1 Fiscal Year. CVCEA's fiscal year shall be 12 months commencing July 1 and
ending June 30. The fiscal year may be changed by Board resolution.
5.2 Depository.
5.2.1 All funds of CVCEA shall be held in separate accounts in the name of
CVCEA and not commingled with funds of any Party or any other person
or entity.
5.2.2 All funds of CVCEA 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 CVCEA
shall be open to inspection 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 and records of
CVCEA, which shall be conducted in accordance with the requirements of
Section 6505 of the Act.
5.2.3 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 Rules and Regulations. 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.
Coachella Valley Community Choice Aggregation 13
Draft JPA Agreement,June 2017—Ver.2
19
5.3 Budget and Recovery of Costs.
5.3.1 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 CVCEA shall be approved by the Board in accordance with
the Operating Rules and Regulations.
5.3.2 Funding of Initial Costs. The Parties acknowledge that implementing the
CCA Program will require some form of funding either provided by all or
some of the Parties or attained in some other manner. If the CCA
Program becomes operational, these Initial Costs paid by such Parties or
attained from other sources shall be Included in the customer charges for
electric services as provided by Section 5.3.3 to the extent permitted by
law, and respective Parties or other sources shall be reimbursed from the
payment of such charges by customers of CVCEA. CVAG shall also be
entitled to reimbursement for Initial Costs. CVCEA may establish a
reasonable time period over which such costs are recovered and repaid
to respective Parties or other sources. In the event that the CCA
Program does not become operational, respective Parties shall not be
entitled to any reimbursement of the funded Initial Costs from CVCEA or
any Party. If any of the initial member agencies or other sources assists
in funding initial costs, they shall also be entitled to reimbursement
pursuant to this section. The Board shall approve the manner of funding
and repayment of initial CCA program costs which may include
reasonable interest charges.
5.3.3 CCA Program Costs. The Parties desire that all costs incurred by
CVCEA that are directly or indirectly attributable to the provision of
electric, conservation, efficiency, incentives, financing, or other services
provided under the CCA Program, including but not limited to the
establishment and maintenance of various reserves and performance
funds and administrative, accounting, legal, consulting, and other similar
costs, shall be recovered through charges to CCA customers receiving
such electric services, or from revenues from grants or other third-party
sources.
5.3.4 Employee Retirement and Post-retirement Benefits. Should the Board
determine to provide a defined benefits retirement benefit to CVCEA
employees (such as PIERS) or other post-retirements benefits that would
be within an Other Post-Retirement Benefits(OPEB)obligation to CVCEA
employees, prior to providing such benefit(s)to any employee, the Board
shall (1) obtain a third party independent actuarial report on the long term
costs of the benefit or benefits, (2) adopt a funding plan for the payment
of both current and long-tens costs that provides for the payment of all
such costs on a current, pay-as-you-go, basis and eliminates any known
or reasonably anticipated unfunded liability associated with the benefit(s)
and (3) notice all Member agencies of the pending consideration of the
benefit(s)together with the actuarial report and funding plan, for at least
Coachella Valley Community Choice Aggregation 14
Draft JPA Agreement,June 2017—Ver.2
20
sixty (60) days and obtain the consent, by resolution of not less than 75
percent of the then current Member agency boards or councils.
ARTICLE 6: WITHDRAWAL AND TERMINATION
6.1 Withdrawal.
6.1.1 Right to Withdraw. A Party may withdraw its participation in the CCA
Program, effective as of the beginning of CVCEA's next fiscal year, by
giving no less than 6 months advance written notice of its election to do
so,which notice shall be given to CVCEA and each Party. Withdrawal of
a Party shall require an affirmative vote of the Parry's governing board.
6.1.2 Right to Withdraw After Amendment. Notwithstanding Section 6.1.1, a
Party may withdraw its membership in CVCEA fallowing an amendment
to this Agreement adopted by the Board which the Part's Director voted
against, provided such notice is given in writing within thirty (30) days
following the date of the vote. Withdrawal of a Party shall require an
affirmative vote of the Parry's governing board and shall not be subject to
the six month advance notice provided in Section 6.1.1. In the event of
such withdrawal, the Party shall be subject to the provisions of Section
6.3.
6.1.3 The Right to Withdraw Prior to Program Launch. After receiving bids from
power suppliers, CVCEA shall provide to the Parties the report from the
electrical utility consultant(s) retained by CVCEA that compares the total
estimated electrical rates that CVCEA will be charging to customers as
well as the estimated greenhouse gas emissions rate and the amount of
estimated renewable energy used with that of the incumbent utility (SCE).
If the report provides that CVCEA is unable to provide total electrical
rates, as part of its baseline offering, to customers that are equal to or
lower than the incumbent utility or to provide power in a manner that has
a lower greenhouse gas emissions rate or uses more renewable energy
than the incumbent utility, a Party may immediately withdraw its
membership in CVCEA without any further financial obligation, as long as
the Party provides written notice of its intent to withdraw to CVCEA Board
no more than fifteen(15)days after receiving the report. A Party may also
withdraw its membership in CVCEA prior to December 31, 2017 for any
reason. Any withdrawing Party shall not be entitled to any return of funds
it may have provided to CVCEA, provided, however, that if, after the
program is launched there are unobligated and unused funds, the
withdrawing member shall be refunded its pro rata share of the
unobligated and unused funds.
6.1.4 Continuing Financial Obligation: Further Assurances. Except as provided
by Section 6.1.3, a Party that withdraws its participation in the CCA
Program may be subject to certain continuing financial obligations, as
described in Section 6.3. Each withdrawing Party and CVCEA shall
execute and deliver all further instruments and documents, and take any
further action that may be reasonably necessary, as determined by the
Coachella Valley Community Choice Aggregation 15
Draft JPA Agreement,June 2017—Ver.2
21
Board, to effectuate the orderly withdrawal of such Party from
participation in the CCA Program.
6.2 Involuntary Termination of a Party. Participation of a Party in the CCA program
may be terminated for material non-compliance with provisions of this Agreement
or any other agreement relating to the Party's participation in the CCA Program
upon a vote of Board members as provided in Section 3.17.5. Prior to any vote
to terminate participation 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 thirty (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 other agreement 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 participation in the CCA Program terminated may be subject to
certain continuing liabilities, as described in Section 6.3.
6.3 Continuing Financial Obligations: Refund. Except as provided by Section 6.1.3,
upon a withdrawal or involuntary termination of a Party, the Party shall remain
responsible for any claims, demands, damages, or other financial obligations
arising from such Party s membership or participation in the CCA Program
through the effective date of its withdrawal or involuntary termination, it being
agreed that the Party shall not be responsible for any new financial obligations
arising after the date of the Party's withdrawal or involuntary termination. Claims,
demands, damages, or other financial obligations for which a withdrawing or
terminated Party may remain liable include, but are not limited to, losses from the
resale of power contracted for by CVCEA to serve the Party's load and any
unfunded liabilities such as unfunded retirement contributions or costs and any
unfunded post-retirement benefits. With respect to such financial obligations,
upon notice by a Party that it wishes to withdraw from the CCA Program, CVCEA
shall notify the Party of the minimum waiting period under which the Party would
have no costs for withdrawal if the Party agrees to stay in the CCA Program for
such period. The waiting period will be set to the minimum duration such that
there are no costs transferred to remaining ratepayers. If the Party elects to
withdraw before the end of the minimum waiting period, the charge for exiting
shall be set at a dollar amount that would offset actual costs to the remaining
ratepayers, and may not include punitive charges that exceed actual costs. In
addition, such Party shall also 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. CVCEA may
withhold funds otherwise owing to the Party or may require the Party to deposit
sufficient funds with CVCEA, as reasonably determined by CVCEA and approved
by a vote of the Board, to cover the Party's financial obligations for the costs
described above. Any amount of the Party's funds held on deposit with CVCEA
above that which is required to pay any existing or ongoing financial obligations
shall be returned to the Party. If there is a disagreement related to the charge(s)
for exiting, the Parties shall attempt to settle the amount through mediation or
other dispute resolution process as authorized by section 7.1. If the dispute is
Coachella Valley Community Choice Aggregation 16
Draft JPA Agreement,June 2017—Ver.2
22
not resolved, the Parties may agree to proceed to arbitration, or any party may
seek judicial review. The liability of any Party under this section 6.3 is subject and
subordinate to the provisions of Section 2.2, and nothing in this section 6.3 shall
reduce, impair, or eliminate any immunity from liability provided by Section 2.2.
6.4 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 participation in the CCA Program, as
described in Section 6.1.
6.5 Disposition of Property upon Termination of Authority. Upon termination of this
Agreement, any surplus money or assets in possession of CVCEA for use under
this Agreement, after payment of all liabilities, costs, expenses, and charges
incurred under this Agreement and under any program documents, shall be
returned to the then-existing Parties in proportion to the contributions made by
each.
ARTICLE 7: MISCELLANEOUS PROVISIONS
7.1 Disoute Resolution. The Parties and CVCEA shalt make reasonable efforts to
informally settle all disputes arising out of or in connection with this Agreement.
Should such informal efforts to settle a dispute, after reasonable efforts, fail, the
dispute shall be mediated in accordance with policies and procedures
established by the Board,
7.2 Liability of Directors. Officers. and Employees. The Directors, officers, and
employees of CVCEA 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. CVCEA shall
defend, indemnity 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 Sections 995 et seq.
Nothing in this section shall be construed to limit the defenses available under the
law, to the Parties, CVCEA, or its Directors, officers, or employees
7.3 Indemnification of Parties. CVCEA shall acquire such insurance coverage as is
necessary to protect the interests of CVCEA, the Parties, and the public.
Subject to the provisions of Section 7.4 and provided that a Party has acted in
good faith and in accordance with this Agreement, CVCEA shall defend with
counsel acceptable to said Party, indemnity and hold such Party free and
harmless from any loss, liability or damage incurred or suffered by such Party by
reason of litigation arising from or as a result of any of the following: the Party's
participation in the JPA; action taken to approve and/or implement the CCA; or
any other act performed or to be performed by the Party pursuant to this
Agreement; provided, however that such indemnification or agreement to hold
harmless pursuant to this section shall be recoverable only out of CVCEA assets
and not from other Parties. To the extent CVCEA's assets are insufficient to
satisfy its obligations under this Section, any member Agency forced to expend
its own funds to satisfy what would otherwise be CVCEA's obligations shall be
entitled to reimbursement from CVCEA.
Coachella Valley Community Choice Aggregation 17
Draft JPA Agreement,June 2017—Ver.2 23
7.4 Limitations on Liability. The Parties acknowledge that Section 895.2 of the
California Government Code provides that a Member is jointly and severally
liable for the torts of the joint powers agency, but that Sections 895.4 and 895.6
of that Code allow the members of a joint powers agency to contractually agree
to indemnity and contribution provisions that allow such liability to be apportioned
among the members based on their respective degree of fault giving rise to the
liability. The Parties further acknowledge that they have agreed at Section 7.3
above to indemnify and defend those Member agencies against loss, liability or
damage suffered by a Member Agency individually as a result of that Agency's
good faith acts taken pursuant to this Agreement. Now, therefore, in
contemplation of such authority, the Parties agree that, as among themselves,
each shall assume that portion of the liability imposed upon CVCEA or any of its
Members, officers, agents or employees by law for injury caused by any
negligent or wrongful act or omission occurring during the performance of this
Agreement that is not covered by insurance,that is determined by the CVCEA to
be that Member's proportionate share accruing during the Member's period of
participation in CVCEA. Said determination shall be by three-fourths vote of the
Member Agencies, meaning an affirmative vote of three-fourths of the total
number of Member Agencies. The Members acknowledge that, given the
possible variables, determination of a proper apportionment may be difficult.
Therefore, subject only to arbitration rights set out at Section 6.3, the Members
agree that the Board's good faith determination of a fair apportionment shall be
final, binding and enforceable as a term of this Agreement. Each Member shall to
the extent provided herein indemnify and hold harmless the other Members for
any loss, costs or expenses that may be imposed on such other Members solely
by virtue of Section 895.2.
7.5 Amendment of this Agreement. This Agreement may not be amended except by
a written amendment approved by a vote of Board members as provided in
Section 3.17.5. CVCEA shall provide written notice to all Parties of amendments
to this Agreement, including the effective date of such amendments, at least 30
days prior to the date upon which the Board votes on such amendments.
Exhibits A through E of this Agreement may be revised from time to time by
Board vote and copies of such revised exhibits shall be distributed to all Parties.
7.6 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 7.5 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 7.5 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 CVCEA, or the
disposition of 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 CVCEA or the Parties under this Agreement.
7.7 Severability. If one or more clauses, sentences, paragraphs or provisions of this
Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby
Coachella Valley Community Choice Aggregation 18
Draft JPA Agreement,June 2017—Ver.2
24
agreed by the Parties, that the remainder of the Agreement shall not be affected
thereby. Such clauses, sentences, paragraphs or provision shall be deemed
reformed so as to be lawful, valid and enforced to the maximum extent possible.
7.8 Further Assurances. Each Party agrees to execute and deliver all further
instruments and documents, and take any further action that may be reasonably
necessary, to effectuate the purposes and intent of this Agreement.
7.9 Execution by 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.
7.10 Parties to be Served Notice. Any notice authorized or required to be given
pursuant to this Agreement shall be validly given if served in writing either
personally, by deposit in the United States mall,first class postage prepaid with
return receipt requested, or by a recognized courier service. Notices given (a)
personally or by courier service shall be conclusively deemed received at the
time of delivery and receipt and (b) by mail shall be conclusively deemed given
48 hours after the deposit thereof(excluding Saturdays, Sundays and holidays) if
the sender receives the return receipt. All notices shall be addressed to the
office of the clerk or secretary of CVCEA or Party, as the case may be, or such
other person designated in writing by CVCEA or Party. Notices given to one
Party shall be copied to all other Parties. Notices given to CVCEA shall be
copied to all Parties.
7.11 No Third Party,Beneficiaries. This Agreement shall reflect the Parties' rights and
obligations as by and among themselves. Nothing herein shall create any right in
any third party to enforce any right or obligation set out in this Agreement as
against any Party hereto.
Coachella Valley Community Choice Aggregation 19
Draft 1PA Agreement,June 2017—Ver.2 25
EXHIBIT A
DEFINITIONS
1. "Act"means the Joint Exercise of Powers Act of the State of California(Government
Code Section 6500 et s
2. "Administrative Services Agreement" means an agreement or agreements entered into
after the Effective Date by CVCEA with one or more entity that will perform tasks
necessary for planning, implementing, operating and/or administering the CCA Program,
or any portion of the CCA Program or any other energy programs adopted by CVCEA.
3. "Agreement" means this Joint Powers Agreement.
4. "Annual Energy Use" has the meaning given in Section 3,17.1(b).
5. "Authority" means the CVCEA.
6. "Authority Document(s)" means document(s) duly adopted by the Board by resolution or
motion implementing the powers,functions, and activities of CVCEA, including but not
limited to the Operating Rules and Regulations, the annual budget, and plans and
policies.
7. "Board"means the Board of Directors of CVCEA.
8. "CCA" or"Community Choice Aggregation" means an electric service option available to
cities and counties pursuant to Public Utilities Code Section 366.2.
9. "CCA Program" means CVCEA's program relating to CCA that is principally described in
Article 2 of this Agreement.
10."CVAG"shall mean the Coachella Valley Association of Governments.
11. "Director" means a member of the Board of Directors appointed by and representing a
Party.
12. "Effective Date"means 2017 or when initial members of CVCEA
execute this Agreement,whichever occurs later, as further described in Section 2.1.
13. "Implementation Plan"means the plan generally described in Section 4.1.2 of this
Agreement that is required under Public Utilities Code Section 366.2 to be filed with the
California Public Utilities Commission for the purpose of describing a proposed CCA
Program.
14."Initial Costs"means all costs incurred by the CVCEA and or any Parties relating to the
establishment and initial operation of CVCEA, such as the hiring of an Executive Officer
and any administrative staff, and any required accounting, administrative,technical, or
legal services in support of CVCEA's initial activities or in support of the negotiation,
preparation, and approval of one or more Administrative Services Agreements.
Coachella Valley Community Choice Aggregation 20
Draft JPA Agreement,June 2017—Ver.2
26
15. "Operating Rules and Regulations"means one or more sets of rules, regulations.
policies, bylaws and procedures governing the operation of CVCEA.
16."Parties" or"Members" means, collectively, the signatories to this Agreement.
17. "Party","Member"or"Member Agency" means a signatory to this Agreement.
1&"Total Annual Energy Use' has the meaning given in Section 3.17.1(b).
Coachella Valley Community Choice Aggregation 21
Draft 1PA Agreement,June 2017—Ver.2
27
EXHIBIT B
LIST OF PARTIES
Parties: City of Blythe
City of Cathedral City
City of Desert Hot Springs
City of Indian Wells
City of Palm Desert
City of Palm Springs
Coachella Valley Community Choice Aggregation 22
Draft IPA Agreement,June 2017—Ver.2
28
EXHIBIT C
PROFORMA
ANNUAL ENERGY USE
Member Number of Customers Annual Energy Use
MWh
Blythe 5,898 117,000
Cathedral City 24,137 329,000
Desert HotSprings 11,421 140,000
Indian Wells 5,230 158,000
Palm Desert 39,459 699,000
Palm Springs 37,826 640,000
Total 123,971 2,083,000
Coachella Valley Community Choice Aggregation 23
Draft JPA Agreement,June 2017—Ver.2
29
EXHIBIT D
PROFORMA
VOTING SHARES
CVCEACCA Program Partici ation and Weighted ing Shares
Participants Annual Energy Percent Annual Annual Energy Use Pro Rata Voting Weighted
Use OWN Energy Use Voting Share% Share% Voting Share°%
B e 117.000 5.62% 2.81% 8.33% 11.14%
Cathedral City 329,000 15.79% 7.90% 8.33% 16.23%
Desert Hot Springs 140.000 6.72% 3.36% 8.33% 11.69%
Indian Wells 158.000 7.591A 3.79% 8.33% 12.13%
Palm Desert 699,000 33,560/0 16.78% 8.33% 25.11%
Palm Springs 640,000 30,72% 15,36% 8.33% 23.7016
TOTALS I Z033,0001100.001h 50.00% 50.00% 100.00%
I. [
FORMULAS USED:
1. Annual Energy Use Voting Share: Total Annual Energy Use(expressed in MWh)in the Member's
jurisdiction/combined Total Annual Energy Use all Members'jurisdictions] multiplied by'/),
expressed as a percentage to two decimal places. See section 3.17.1 (b)
2. Pro-rate Voting Share: [1 1 total number of members]multiplied by''), expressed as a percentage to
two decimal places. See section 3.17.1 (a)
3. Weighted Voting Share: [the respective sum of the values computed in (1)and(2)above,expressed
as a percentage to two decimal places.See section 3.17.1 (c)
Coachella Valley Community Choice Aggregation 24
Draft JPA Agreement,June 2017—Ve r.2
30
EXHIBIT E
SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have executed this Joint Powers Agreement
establishing the Coachella Valley Community Energy Authority
By:
Name:
Title:
Date:
Party:
(One signature page for each Member)
Coachella Valley Community Choice Aggregation 25
Draft JPA Agreement,June 2017—Ver.2
31
CITY OF PALM SPRINGS
PUBLIC NOTIFICATION
o
_ o
Date: July 31, 2017
Subject: Ordinance 1928
AFFIDAVIT OF PUBLICATION
I, Cynthia A. Berardi, Interim Chief Deputy City Clerk, of the City of Palm Springs,
California, do hereby certify that a copy of the attached Notice was published in the Desert
Sun on July 28, 2017.
1 declare under penalty of perjury that the foregoing is true and correct.
Cynthia A. erardi, CMC
Interim Chief Deputy City Clerk
AFFIDAVIT OF POSTING
I, Cynthia A. Berardi, Interim Chief Deputy City Clerk, of the City of Palm Springs,
California, do hereby certify that a copy of the attached Notice was posted at City Hall,
3200 E. Tahquitz Canyon Drive, on the exterior legal notice posting board, and in the Office
of the City Clerk on or before July 31, 2017.
1 declare under penalty of perjury that the foregoing is true and correct.
Cynthia A. Berardi, CMC
Interim Chief Deputy City Clerk
The Desert Sun
750 N Gene Autry Trail Certificate of Publication
Palm Springs, CA 92262 RECEIVED
760-778-4578/Fax 760-7784731 ;l T Y OF PALM S P R I)
State Of California ss: 2017 JUL 31 AM 9: 01
County of Riverside
OFFICE Or SHE ail Y CI.I.i<r'.
Advertiser: CITY OF PALM SPRINGS/LEGALS
PO BOX 2743
PALM SPRINGS CA 92263
Order# 0002307350
1 am over the age of 18 years old, a citizen of
the United States and not a party to, or have
interest in this matter. I hereby certify that the
attached advertisement appeared in said
newspaper(set in type not smaller than non
pariel)in each and entire issue of said
newspaper and not in any supplement thereof
on the following dates,to wit: „
Newspaper: The Desert Sun
7/28/2017
NO 1064: ORDINANCE NO.1928
1 acknowledge that I am a principal clerk of the AN ORDINANCE OF THE CITY OF PALM SPRINGS,CALIFORNIA.AUTHORIZING IM-
9 P P PLEMENTATION OF A COMMUNITY CHOICE AGGREGATION PROGRAM,AND AP-
printer of The Desert Sun, printed and PROVING THE"DESERT CITIES ENERGY CHOICE"JOINT POWERS AGREEMENT.
published weekly in the City of Palm Springs, city attorney of
oil
This Ordinance authorizes the execution of a joint powers agreement, anto im
d ap-
CountycfRiverside, State of California.The proves the City's joinder in ajoint pasageny with�th�Nation program
element and administer a communi wide a ecthci a g e9
Desert Sun was adjudicated a Newspaper of known as Community Choice Aggregation
general circulation on March 24, 1988 by the CERTIFICATION
Superior Court of the County of Riverside, STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
State Of California Case No. 191236. CITY OF PALM SPRINGS )
I,KATHLEEN D.HART,Interim City Clerk of the City of Pa
plm and was Springs,herintr dy ced
iffy that
eddgguOlari meeting of theo.1928 n Pal Spr ng,true s CityrCouncl on my 5,I2017,uand
at odJuly 2017a r She following vooft
of t
te:
Palm Springs UTy Council on the 19th day
declare under penalty of perjury that the AYES: Councilmembers Kors,Mills,Roberts,Mayor Pro Tem Foat,and
Mayor Moon
foregoing is true and correct. Executed on NOES: None
ABSENT: None
this 28th day of 2017 in Palm RESEoeCUD- N _
Springs, Callforn KATHLEEN D.HART,MMC Published:712812017
INTERIM CITY CLERK
Declarant
ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AUTHORIZING IMPLEMENTATION OF A
COMMUNITY CHOICE AGGREGATION PROGRAM, AND
APPROVING THE "DESERT CITIES ENERGY CHOICE"
JOINT POWERS AGREEMENT.
City Attorney Summary
This Ordinance authorizes the execution of a joint powers agreement, and
approves the City's joinder in a joint powers agency with other CVAG
cities, to implement and administer a community-wide electricity
aggregation program known as Community Choice Aggregation
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, KATHLEEN D. HART, Interim City Clerk of the City of Palm Springs, hereby
certify that Ordinance No. 1928 is a full, true and correct copy, and was introduced at a
regular meeting of the Palm Springs City Council on July 5, 2017, and adopted at a
regular meeting of the Palm Springs City Council on the 19th day of
July 2017, by the following vote:
AYES: Councilmembers Kors, Mills, Roberts, Mayor Pro Tern Foat, and
Mayor Moon
NOES: None
ABSENT: None
ABSTAIN: None
RECUSED: None t/ p ` e_
KATHLEEN D. HART, MMC
INTERIM CITY CLERK
ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AUTHORIZING IMPLEMENTATION OF A
COMMUNITY CHOICE AGGREGATION PROGRAM, AND
APPROVING THE "DESERT CITIES ENERGY CHOICE"
JOINT POWERS AGREEMENT.
City Attorney Summary
This Ordinance authorizes the execution of a joint powers agreement, and
approves the City's joinder in a joint powers agency with other CVAG
cities, to implement and administer a community-wide electricity
aggregation program known as Community Choice Aggregation
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, STATE OF
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City of Palm Springs, California has been actively investigating
options to provide electric services to constituents within its jurisdiction with the intent of
achieving greater local involvement over the provision of electric services and promoting
competitive and renewable energy.
SECTION 2. On September 24, 2002, the Governor signed into law Assembly
Bill 117 (Stat. 2002, ch. 838; see California Public Utilities Code section 366.2;
hereinafter referred to as the "Act"), which authorizes any California city or county,
whose governing body so elects, to combine the electricity load of its residents and
businesses in a community-wide electricity aggregation program known as Community
Choice Aggregation ("CCA").
SECTION 3. The Act expressly authorizes participation in a CCA program
through a joint powers agency, and to this end the City has been participating since
2016 in the evaluation of a proposal for the formation of a joint powers agency to
implement and administer a CCA program for the Coachella Valley region.
SECTION 4. As described in the Joint Powers Agreement attached to and
incorporated in this Ordinance as Exhibit A, a CCA program implemented and
administered by and through joint powers agency "Desert Cities Energy Choice,"
whether by that name or an alternative name that emerges for the joint powers agency
that will administer and implement the CCA program for the Coachella Valley (in any
case referenced as DCEC herein), provides an opportunity to accomplish the following:
a) Reduce greenhouse gas emissions related to the use of power throughout the
jurisdictions of the participating cities and neighboring regions;
b) Provide electric power and other forms of energy to customers at a competitive
cost;
c) Carry out programs to reduce energy consumption;
Ordinance No. 1928
Page 2
d) Stimulate and sustain the local economy by developing local jobs in renewable
and conventional energy;
e) Promote long-term electric rate stability, energy security and reliability for
residents through local control of electric generation resources.
SECTION 5. Through Docket No. R.03-10-003, the California Public Utilities
Commission has issued various decisions and rulings addressing the implementation of
Community Choice Aggregation programs, including the recent issuance of a procedure
by which the California Public Utilities Commission will review "Implementation Plans,"
which are required for submittal under the Act as the means of describing the
Community Choice Aggregation program and assuring compliance with various
elements contained in the Act.
SECTION 6. A final Implementation Plan for the CCA program will be submitted
to the California Public Utilities Commission by DCEC as soon after the formation of the
joint powers agency as reasonably practicable, confirming that DCEC's CCA program is
in compliance with all requirements of the Act.
SECTION 7. The Act requires each jurisdiction participating in the CCA program
to individually adopt an ordinance ("CCA ordinance") electing to implement a
Community Choice Aggregation program within its jurisdiction by and through its
participation in Desert Cities Energy Choice.
SECTION 8. Based upon all of the above, the City Council approves the Joint
Powers Agreement attached hereto as Exhibit A and elects to implement a Community
Choice Aggregation program within the City's jurisdiction by and through the City's
participation in Desert Cities Energy Choice, subject to the City's right to forego the
actual implementation of a Community Choice Aggregation program pursuant to
specified withdrawal rights described in the Joint Powers Agreement. The Mayor is
hereby authorized to execute the Joint Powers Agreement in a form substantially similar
to Exhibit A, subject to non-substantive and/or minor revisions approved or
recommended by staff employed by the Coachella Valley Association of Governments
during the process of the consideration of the Joint Powers Agreement by prospective
future members of DCEC, and any other related documents for program
implementation.
SECTION 9. If any section, subsection, sentence, clause, phrase or word'of this
Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of this Ordinance. The
City Council hereby declares it would have passed and adopted this Ordinance and
each and all provisions hereof irrespective of the fact that any one or more of said
provisions be declared invalid.
SECTION 10. The City Council finds and determines that this Ordinance is not
subject to the California Environmental Quality Act (Public Resources Code Section
21000 et seq.) pursuant to Section 15060(c)(2) and 15060(c)(3) of the State Guidelines,
Ordinance No. 1928
Page 3
because the Ordinance will not result in a direct or reasonably foreseeable indirect
physical change in the environment, and is not a "project," as that term is defined in
Section 15378 of the State Guidelines.
SECTION 11 . The Mayor shall sign and the City Clerk shall certify to the
passage and adoption of this Ordinance and shall cause the same, or the summary
thereof, to be published and posted pursuant to the provisions of law, and this
Ordinance shall take effect thirty (30) days after its adoption.
SECTION 12. If any section, subsection, clause or phrase of this Ordinance is
for any reason held by a court of competent jurisdiction to be invalid, such a decision
shall not affect the validity of the remaining portions of this Ordinance. The City Council
of the City of Palm Springs, hereby declares that it would have passed this Ordinance
and each section of subsection, sentence, clause and phrase thereof, irrespective of the
clauses or phrases being declared invalid.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS 19th DAY OF JULY, 2017.
ROBERT MOON, MAYOR
ATTEST:
KATHLEEN D. HART, MMC
INTERIM CITY CLERK
Ordinance No. 1928
Page 4
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, KATHLEEN D. HART, Interim City Clerk of the City of Palm Springs, hereby
certify that Ordinance No. 1928 is a full, true and correct copy, and was introduced at a
regular meeting of the Palm Springs City Council held on July 5, 2017, and adopted at a
regular meeting of the Palm Springs City Council on the 191h day of
July 2017, by the following vote:
AYES: Councilmembers Kors, Mills, Roberts, Mayor Pro Tern Foat, and
Mayor Moon
NOES: None
ABSENT: None
ABSTAIN: None
RECUSED: None
KATHLEEN D. HART, MMC
INTERIM CITY CLERK
COACHELLA VALLEY COMMUNITY ENERGY AUTHORITY
(placehelder, JPA name to be determined)
JOINT POWERS AGREEMENT
This Joint Powers Agreement ("Agreement"), effective as of 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
parties set forth in Exhibit B (individually"Party" or "Member", collectively "Parties" or
"Members").The term "Parties" or"Members" shall also include an incorporated municipality or
county added to this Agreement in accordance with Section 2.4.
RECITALS
A. The Parties share various powers under California law, including but not limited to
the power to purchase, supply, and aggregate electricity for themselves and
customers within their jurisdictions.
B. 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 governments to develop programs to reduce
greenhouse gas emissions.
C. The purposes for entering into this Agreement include:
a. Reducing greenhouse gas emissions related to the use of power
throughout the jurisdictions of the Parties and neighboring regions;
b. Providing electric power and other forms of energy to customers at a
competitive cost;
C. Carrying out programs to reduce energy consumption;
d. Stimulating and sustaining the local economy by developing local jobs in
renewable and conventional energy; and
e. Promoting long-term electric rate stability, energy security and reliability for
residents through local control of electric generation resources.
D. It is the mission and purpose of this Agreement to build a Community Choice
Aggregation program that is locally controlled and delivers cost-competitive clean
electricity, product choice, price stability, energy efficiency and greenhouse gas
emission reductions.
E. It is the intent of this Agreement to promote the development and use of a wide
range of renewable and efficient energy sources and energy efficiency programs,
including but not limited to solar, wind, and biomass energy production. The
Coachella Valley Community Choice Aggregation 1
Draft JPA Agreement,June 2017—Ver.2
purchase of renewable power and greenhouse gas-free energy sources will be the
desired approach to decrease regional greenhouse gas emissions and accelerate
the State's transition to clean power resources to the extent feasible. The CVCEA
will also add increasing levels of locally generated renewable resources as these
projects are developed and customer energy needs expand.
F. The Parties desire to establish a separate public agency, known as the Coachella
Valley Community Energy Authority or CVCEA, 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.
G. The Parties anticipate adopting an ordinance electing to implement through the
CVCEA a common Community Choice Aggregation (CCA) program, an electric
service enterprise available to cities and counties pursuant to California Public
Utilities Code Sections 331.1(b) and 366.2. The first priority of the CVCEA will be
the consideration of those actions necessary to implement the CCA Program.
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:
ARTICLE 1: DEFINITIONS AND EXHIBITS
1.1 Definitions. Capitalized terms used in the 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 the Parties
Exhibit C: Annual Energy Use
Exhibit D: Voting Shares
Exhibit E: Sionatures
ARTICLE 2: FORMATION OF COACHELLA VALLEY COMMUNITY ENERGY AUTHORITY
2.1 Effective Date and Term. This Agreement shall become effective and CVCEA
shall exist as a separate public agency on , 2017 or when the
Parties execute this Agreement, whichever occurs later. The CVCEA shall
provide notice to the Parties of the Effective Date. CVCEA shall continue to
exist, and this Agreement shall be effective, until this Agreement is terminated in
accordance with Section 6.4, subject to the rights of the Parties to withdraw from
CVCEA.
Coachella Valley Community Choice Aggregation 2
Draft JPA Agreement,June 2017—Ver.2
2.2 Formation. There is formed as of the Effective Date a public agency named the
Coachella Valley Community Energy Authority. Pursuant to Sections 6506 and
6507 of the Act, CVCEA is a public agency separate from the Parties. Pursuant
to Sections 6508.1 of the Act, the debts, liabilities or obligations of CVCEA shall
not be debts, liabilities or obligations of the individual Parties unless the
governing board of a Party agrees in writing to assume any of the debts, liabilities
or obligations of CVCEA. A Party who has not agreed to assume an Authority
debt, liability or obligation shall not be responsible in any way for such debt,
liability or obligation even if a majority of the Parties agree to assume the debt,
liability or obligation of CVCEA. Notwithstanding Section 7.4 of this Agreement,
this Section 2.2 may not be amended unless such amendment is approved by
the governing board of each Party.
2.2.1 Name. CVCEA may change its name at any time through adoption of a
resolution of the Board of Directors.
2.3 Purpose. The purpose of this Agreement is to establish an independent public
agency in order to exercise powers common to each Party to build a Community
Choice Aggregation program that achieves significant, long-term GHG emission
reductions by offering clean, cost effective and price stable electricity to
residents, businesses, and agricultural producers while carrying out innovative
programs to reduce customer energy use, and to promote local renewable and
efficient energy production technologies. To that end, CVCEA will study,
promote, develop, conduct, operate, and manage energy, energy efficiency and
conservation, and other energy-related programs, and to exercise all other
powers necessary and incidental to accomplishing this purpose. Without limiting
the generality of the foregoing, the Parties intend for this Agreement to be used
as a contractual mechanism by which the Parties are authorized to participate in
the CCA Program, as further described in Section 4.1. The Parties intend that
other agreements shall define the terms and conditions associated with the
implementation of the CCA Program and any other energy programs approved
by CVCEA.
2.4 Membership in CVCEA.
2.4.1 The initial Members of CVCEA are the Cities of Blythe, Cathedral City,
Desert Hot Springs, Indian Wells, Palm Desert, and Palm Springs.
2.4.2 Any city or county may request to become a member of CVCEA by
submitting a resolution adopted by its City Council or Board of
Supervisors to the Board of CVCEA. The Board shall review the request
and shall vote to approve or disapprove the request. The Board may
establish conditions, including but not limited to financial conditions,
under which the city or county may become a member of CVCEA. The
Board shall notify the then members of CVCEA of this request and the
date that the request will be on the Board's meeting agenda for action.
The date set for Board action shall be at least forty-five (45) days from the
date the notice is mailed to the members. if the request is approved by
the Board, the city or county shall become a member of CVCEA under
Coachella Valley Community Choice Aggregation 3
Draft JPA Agreement,June 2017—Ver.2
the terms and conditions set forth by the Board and upon approval and
execution of this Agreement by the requesting city or county.
2.5 Powers. CVCEA shall have all powers common to the Parties and such
add'tional powers accorded to it by law. CVCEA 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 fallowing powers, subject to the voting requirements set forth in
Section 3.17:
2.5.1 to make and enter into contracts;
2.5.2 to employ agents and employees, including but not limited to an
Executive Officer-,
2.5.3 to acquire, contract, manage, maintain, and operate any buildings,
infrastructure, works, or improvements;
2.5.4 to acquire property by eminent domain, or otherwise, except as limited
under Section 6508 of the Act, and to hold or dispose of any property;
however, CVCEA shall not exercise the power of eminent domain within
the jurisdiction of a Party over its objection without first meeting and
conferring in good faith;
2.5.5 to lease any property;
2.5.6 to sue and be sued in its own name;
2.5.7 to incur debts, liabilities, and obligations, including but not limited to loans
from private lending sources pursuant to its temporary borrowing powers
such as Government Code Sections 53850 et seq. and authority under
the Act;
2.5.8 to form subsidiary or 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;
2.5.9 to issue revenue bonds and other forms of indebtedness;
2.5.10 to apply for, accept, and receive all licenses, permits, grants, loans or
other aids from any federal, state, or local public agency;
2.5.11 to 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;
2.5.12 to adopt Operating Rules and Regulations;
2.5.13 to make and enter into service agreements relating to the provision of
services necessary to plan, implement, operate and administer the CCA
Coachella Valley Community Choice Aggregation A
Draft JPA Agreement,June 2017—Ver.2
Program and other energy programs, including the acquisition of electric
power supply and the provision of retail and regulatory support services;
and
2.5.14 to permit additional Parties to enter into this Agreement after the Effective
Date and to permit another entity authorized to be a community choice
aggregator to designate CVCEA to act as the community choice energy
aggregator on its behalf.
2.6 Limitation on Powers. As required by Government Code Section 6509, the
power of CVCEA is subject to the restrictions upon the manner of exercising
power possessed by the City of(insert name of one Participating city).
ARTICLE 3: GOVERNANCE AND INTERNAL ORGANIZATION
3.1 Governing Body. CVCEA shall be governed by a legislative body known as the
Board of Directors ("Board"). The initial Board shall consist of one(1) director
appointed by each of the initial members. Each Director shall serve at the
pleasure of the governing board of the Party appointing such Director, and may
be removed as Director by such governing board at any time. If at any time a
vacancy occurs on the Board, a replacement shall be appointed to fill the position
of the previous Director within 60 days of the date that such position becomes
vacant. Directors shall be elected officials or senior staff of the appointing Party
that is the signatory to this Agreement. Each Party may appoint an alternate to
serve in the absence of its Director. Alternates may be either elected officials or
senior staff of the appointing Party that is the signatory to this Agreement.The
Board shall exercise all powers and conduct all business of CVCEA, either
directly or by delegation to other bodies or persons pursuant to this Agreement.
If additional cities or counties join CVCEA, as set forth in section 2.4, each city or
county that becomes a member of CVCEA shall be entitled to one (1) director
and one (1) alternate appointed as set forth above.
Ex Officio Directors. The Board may appoint ex officio members of the Board.
Ex officio directors shall receive all meeting notices, shall have the right to
participate in Board discussions and the right to place items on the agenda but
shall not be counted towards a quorum and shall have no vote.
3.2 Regular Board Meetings. The Board shall hold at least one regular annual
meeting and shall provide for such other regular meetings as it deems
necessary. Meetings of the Board shall be held at such locations within one of
the member jurisdictions ' , and at
such times as may be designated from time to time by the Board.
3.3 Special Meetings of the Board. Subject to all noticing requirements of The Brown
Act, special meetings of the Board may be called by the Chair,to be held at such
times and places within one of the member jurisdictions
Pale Verste-Valleys as may be ordered by the Chair. A majority of the Board may
also call a special meeting for any purpose.
Coachella Valley Community Choice Aggregation 5
Draft JPA Agreement,June 2017—Ver.2
3.4 Chair and Vice-Chair. The Board shall annually elect from its membership a
Chair and Vice-Chair to serve for a one-year term.
3.5 Conduct of Meetings. The Chair or, in the absence of the Chair, the Vice-Chair,
shall preside at all meetings of the Board.
3.6 Resignation of a Director. Any Director may resign effective on giving written
notice to the Board and the other Members, unless the notice specifies a later
time for the effectiveness of such resignation. A successor shall be appointed by
the affected Member as provided for in this Agreement.
3.7 Quorum. Except as otherwise provided in this Agreement, CVCEA shall act only
upon a majority of a quorum of the Board. A quorum of any meeting of Directors
shall consist of a majority of the Directors then designated by and serving on
behalf of the Members. Ex officio, nen-voting Participants shall not be included
when calculating the number of Directors necessary to constitute a quorum or the
number of votes necessary to approve an action. In the event that a Member
has failed to designate a Director, or a Member's designated Director has died,
resigned, left office, been terminated or is otherwise unwilling or unable to act as
the designating Members representative, and a replacement Director has not yet
been designated, and there is no designated alternate, such that a Member has
no duly acting representative on the Board,then that Members vacant Beard
position shall not be included when calculating the number of Directors
necessary to constitute a quorum or the number of votes necessary to approve
an action. Except as otherwise provided in this Agreement, every act or decision
made by a majority of the Directors present at a meeting duly held at which a
quorum is present is the act of the Board. In the absence of a quorum, any
meeting of the Board may be adjourned from time to time by a vote of the
majority present, but no other business may be transacted except as provided for
in this Section.
3.8 Other Officers. The Executive Officer of CVCEA shall be the secretary of
CVCEA, or as otherwise determined by the Board. Any officer, employee or
agent of any Member of CVCEA may also be an officer, employee, or agent of
any of the Members. CVCEA shall have the power to appoint such additional
officers and to employ such employees and assistants as may be appropriate.
Each and all of said officers, employees and assistants shall serve at the
pleasure of CVCEA and shall perform such duties and shall have such powers as
CVCEA may, from time to time, determine. Any officer may resign at any time by
giving written notice to the secretary. Any such resignation shall be effective
upon receipt of such notice or at any later time specified in the notice. Officers
shall assume the duties of their offices immediately after their appointment and
shall hold office until their successors are appointed, except in the case of their
removal or resignation. Vacancies of officers shall be filled by appointment of the
Board and such appointee shall hold office until the appointment of his or her
successor.
Coachella Valley Community Choice Aggregation 6
Draft JPA Agreement,June 2017—Ver.2
3.9 Minutes. The secretary of CVCEA shall cause to be kept minutes of regular,
adjourned regular and special meetings of the Board. The secretary shall cause
a copy of all minutes, along with copies of all ordinances and resolutions, to be
forwarded to each of the Parties hereto.
3.10 Rules. A majority of Directors may adopt rules governing meetings if not
inconsistent or in conflict with this Agreement. In the absence of rules adopted
by the Directors, Roberts' Rules of Order, as they may be amended from time to
time, shall govern the meetings of the Board in so far as they are not inconsistent
or in conflict with this Agreement or any CVCEA bylaws.
3.11 Powers and Functions of the Board. The Board shall exercise general
governance and oversight over the business and activities of CVCEA, consistent
with this Agreement and applicable law, The Board shall provide general policy
guidance to the CCA Program. Board approval shall be required for any of the
following actions,-
3.11.1 The issuance of bonds or any other financing even if program
revenues are expected to pay for such financing.
3.11.2 The appointment or termination of the Executive Officer and General
Counsel.
3.11.3 The appointment or removal of officers described in Section 3.17,
subject to Section 3.17.1.
3.11.4 Any decision to provide retirement or post-retirement benefits that
are defined benefit programs, subject to the requirements of section
5.3.4, below.
3.11.5 The adoption of the Annual Budget.
3.11.6 The adoption of an ordinance,
3.11.7 The approval of agreements, except as provided by Section 3.12,
3,11.8 The initiation or resolution of claims and litigation where CVCEA will
be the defendant, plaintiff, petitioner, respondent, cross complainant
or cross petitioner, or intervenor; provided, however, that the
Executive Officer or General Counsel, on behalf of CVCEA, may
intervene in, become a party to,or file comments with respect to any
proceeding pending at the California Public Utilities Commission, the
Federal Energy Regulatory Commission, or any other administrative
agency,without approval of the Board as long as such action is
consistent with any adopted Board policies.
3.11.9 The setting of rates for power sold by CVCEA and the setting of
charges for any other category of service provided by CVCEA.
3.11.10 Termination of the CCA Program.
Coachella Valley Community Choice Aggregation 7
Draft JPA Agreement,June 2017—Ver.Z
k .
3.12 CVAG's Participation. CVAG shall provide, under contract with CVCEA,
administrative services required by CVCEA during the first five (5) years of the
implementation of the CVCEA; and thereafter as the administrative services
contract may be renewed from time to time by CVCEA, and shall exercise such
other powers and duties as the Board deems necessary to achieve the purpose
of this Agreement. During any such term, CVAG's Executive Director may serve
as the Secretary of CVCEA.
3A3 Executive Officer. Except as may be provided pursuant to any administrative
services agreement referenced in Section 3.12, the Board of Directors shall have
the authority to appoint an Executive Officer for CVCEA, who shall be
responsible for the day-to-day operation and management of CVCEA and the
CCA Program. The Executive Officer may be retained under contract with
CVCEA, be an employee of CVCEA, be an employee of CVAG, or be an
employee of one of the Parties. The Executive Officer shall report directly to the
Board and serve as staff to CVCEA. Except as otherwise set forth in this
Agreement, the Executive Officer may exercise all powers of CVCEA, including
the power to hire, discipline and terminate employees as well as the power to
approve any agreement if the total amount payable under the agreement is less
than $100,000 in any fiscal year, or such higher amount as may be established
by the Board from time to time, by resolution of the Board, except the powers
specifically set forth in Section 3.11 or those powers which by law must be
exercised by the Board of Directors. The Executive Officer shall serve at the
pleasure of the Board.
3.14 CVCEA Staff. Except as may be provided pursuant to any administrative services
agreement referenced in Section 3.12, CVCEA may contract with CVAG for staff
services, retain its own staff, or contract with another entity for services. Unless
other employment is approved by the Commission, the CVCEA Executive Officer
may utilize CVAG staff as may be necessary to accomplish the purposes of
CVCEA. CVAG staff time, as well as office expenses, direct and indirect
overhead, shall be charged to CVCEA utilizing direct billing and other accounting
practices that provide for a clear separation of funds.
3.15 Commissions. Boards and Committees
3.15.1 The Board may establish commissions, boards or committees, including
but not limited to a standing executive committee of the Board, as the
Board deems appropriate, to assist the Board in carrying out its authority
and functions under this Agreement and may delegate authority to such
commission, board or commission as set forth in a Board resolution.
Such delegation may be modified, amended or revoked at any time the
Board may deem appropriate. Any decision delegated pursuant to this
subsection may be appealed to the Board, as the Board so determines.
3.15.2 The Board may also establish any advisory commissions, boards, and
committees as the Board deems appropriate to assist the Board in
carrying cut its functions and implementing the CCA Program, other
energy programs and the provisions of this Agreement.
Coachella Valley Community Choice Aggregation $
Draft JPA Agreement,June 2017—Ver. 2
3.15.3 Any board, commission or committee formed under this section shall
comply with the requirements of the Ralph M. Brown Act. 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.
3.16 Director Compensation. Directors shall serve without compensation from
CVCEA. However, Directors may be compensated by their respective appointing
authorities. The Board, however, may adopt by resolution a policy relating to the
reimbursement by CVCEA of expenses or other costs incurred by Directors.
3.17 Voting. In general, as described in Section 3.17.3, action by CVCEA Board will
be taken solely by a majority vote of the total number of Directors present. In
addition, as described in Section 3.17.4, upon request of two (2) Directors, a
weighted vote by shares will also be conducted. When such a request is made,
an action must be approved by both a majority vote of Directors present and a
majority of the Weighted Voting Shares present. Nc action may be approved
solely by a majority vote by shares. The voting shares of Directors and approval
requirements for actions of the Board shall be as follows:
3.17.1 Weighted Voting Shares
Each member agency shall have a Voting Share as determined by the
following formulas:
(a) Pro Rata Voting Share. Each Member shall have an equal voting
share determined by the following formula: (111 total number of
Members] multiplied by Y2.), expressed as a percentage to two
decimal places; and
(b) Annual Energy Voting Share, Each Member shall have an
additional voting share determined by the following formula:
QTotal Annual Energy Use (expressed in MWh) in the Member's
jurisdiction /combined Total Annual Energy Use in all Members'
jurisdictions] multiplied by '/,), expressed as a percentage to two
decimal places. Annual Energy Use values are to be based on
total CCA-related retail energy sales of all electric customer
accounts as of December 31 of the most recent year for which
such data is available. In the absence of actual data, the Board
may approve the use of reasonably estimated Annual Energy Use
values.
(c) Weighted Voting Share. Each Member's Weighted Voting Share
shall be the respective sum of the values computed in (a) and (b)
above, expressed as a percentage to two decimal places. The
combined total Weighted Voting Shares of all Members is 100.00
percent.
Coachella Valley Community Choice Aggregation 9
Draft JPA Agreement,June 2017—Ver.2
3.17.2 Exhibit Showing Weighted Voting Shares. The initial Weighted Voting
Shares are set forth in Exhibit D based on data available as of the
Effective Date of this Agreement. Exhibit D shall be revised no less than
annually as necessary to account for changes in the number of Members
and or changes in the Members' annual MWh retail energy usage.
Adjustments to Exhibit D shall be approved by the Board.
3.17.3 Action Approval Requirements. Except as provided in Sections 3.17 and
3.17.4 and 3.17.5, actions of the Board shall require the affirmative vote
of a majority of Directors present at the meeting.
3.17.4 Option for Approval by Voting Shares. Notwithstanding Section 3.17.3,
any two (2) Directors present at a meeting may demand that approval of
any matter related to the CCA Program be determined on the basis of
both Weighted Voting Shares and by the affirmative vote of a majority of
Directors present at the meeting. If two Directors make such a demand
with respect to approval of any such matter, then approval of such matter
shall require the affirmative vote of a majority of Directors present at the
meeting and the affirmative vote of Directors having a majority of
Weighted Voting Shares present, as determined by Section 3.17.1 except
as provided in Section 3.17.5.
3.17.5 Special Voting Requirements for Certain Matters.
(a) Two-Thirds and Weighted Voting Approval Requirements Relating
to Sections 6.2 and 7.4. Action of the Board on the matters set
forth in Section 6,2 (involuntary termination of a Member), or
Section 7.4 (amendment of this Agreement) shall require the
affirmative vote of at least two-thirds of Directors present;
provided, however, that: (i) notwithstanding the foregoing, any
two (2) Directors present at a meeting may demand that the vote
be determined on the basis of both Weighted Voting Shares and
by the affirmative vote of Directors present, and if any two (2)
Directors make such a demand, then approval shall require the
affirmative vote of both at least two-thirds of Directors present and
the affirmative vote of Directors having at least two-thirds of the
Weighted Voting Shares present, as determined by Section
3.17.1; and (ii)for votes to involuntarily terminate a Member under
Section 6.2, the Director for the Member subject to involuntary
termination may not vote, and the number of Directors constituting
two-thirds of all Directors, and the Weighted Voting Share of each
Member shall be recalculated as if the Member subject to possible
termination were not a Member.
(b) Seventy-Five Percent Special Voting Requirements for Eminent
Domain and Contributions or Pledge of Assets.
(i) A decision to exercise the power of eminent domain on
behalf of CVCEA to acquire any property interest other
than an easement, right-of-way, or temporary construction
Coachella Valley Community Choice Aggregation 10
Draft JPA Agreement,June 2017—Ver. 2
easement shall require a vote of at least 75% of all
Directors.
(ii) The imposition on any Member of any obligation to make
contributions or pledge assets as a condition of continued
participation in the CCA Program shall require a vote of at
least 75% of all Directors and the approval of the
governing boards of the Members which are being asked
to make such contribution or pledge.
(iii) Notwithstanding the foregoing, any two (2) Directors
present at the meeting may demand that a vote under
subsections (1) or(ii) be determined on the basis of
Weighted Voting Shares and by the affirmative vote of
Directors, and if any two (2) Directors make such a
demand,then approval shall require both the affirmative
vote of at least 75% of Directors present and the
affirmative vote of Directors having at least 75%of the
Weighted Voting Shares present, as determined by
Section 3.17.1. For purposes of this section, "imposition
on any Member of any obligation to make contributions or
pledge assets as a condition of continued participation in
the CCA Program"does not include any obligations of
a withdrawing or terminated Member imposed under
Section 6.3.
3.18 Meetings and Special Meetings of the Board. The Board shall hold at least
four(4) 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 and Emergency
Meetings of the Board may be called in accordance with the provisions of
California Government Code Sections 54956 and 54956.5. Directors may
participate in meetings telephonically,with full voting rights, only to the extent
permitted by law. All meetings shall be conducted in accordance with the
provisions of the Ralph M. Brown Act (California Government Code Sections
54950 et seq.).
3.19 Selection of Board Officers.
3.19.1 Chair and Vice Chair. The Directors shall select, from among
themselves,*a Chair, who shall be the presiding officer of all Board
meetings, and a Vice Chair, who shall serve in the absence of the Chair.
The Chair and Vice Chair shall serve at the pleasure of the Board. There
shall be no limit on the number of terms held by either the Chair or Vice
Chair. The office of either the Chair or Vice Chair shall be declared
vacant and a new selection shall be made if:
Coachella Valley Community Choice Aggregation 11
Draft JPA Agreement,June 2017—Ver.2
(a) the person serving dies, resigns, or the Member that the person
represents removes the person as its representative on the Board,
or
(b) the Member that he or she represents withdraws from CVCEA
pursuant to the provisions of this Agreement.
3.19.2 Secretary. The Secretary shall be responsible for keeping the minutes of
all meetings of the Board and all other official records of CVCEA.
3.19.3 Treasurer and Auditor. The Treasurer shall function as the combined
offices of Treasurer and Auditor pursuant to Government code section
6505.6 and shall strictly comply with the statutes related to the duties and
responsibilities specified in Section 65.5 of the Act. The Treasurer for
CVCEA shall be the depository and have custody of all money of CVCEA
from whatever source and shall draw all warrants and pay demands
against CVCEA as approved by the Board. The Treasurer shall cause an
independent audit(s) of the finances of CVCEA 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 person or
entity as the law may provide at the time. The duties and obligations of
the Treasurer are further specified in Article 5. The Treasurer shall serve
at the pleasure of the Board.
3.20 Administrative Services Provider. The Board may appoint one or more
administrative services providers to serve as CVCEA's agent for planning,
implementing, operating and administering the CCA Program, and any other
program approved by the Board. The appointed administrative services provider
may be one of the Members. A separate services agreement shall set forth the
terms and conditions by which the appointed administrative services provider(s)
shall perform or cause to be performed tasks necessary for planning,
implementing, operating and administering the CCA Program and other approved
programs. Any such services agreement shall set forth the terms and the
circumstances under which the services agreement may be terminated by
CVCEA. This section shall not in any way be construed to limit the discretion of
CVCEA to hire its own employees to administer all or any portion of the CCA
Program or any other program.
ARTICLE 4: IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
4.1 Preliminary Implementation of the CCA Program.
4.1 A Enabling Ordinance. To be eligible to participate in the CCA Program,
each Party must adopt an ordinance in accordance with Public Utilities
Code Section 366.2(c)(12)for the purpose of specifying that the Party
Coachella Valley Community Choice Aggregation 12
Draft JPAAgreement,June 2017—Ver.2
intends to implement a CCA Program by and through its participation in
CVCEA.
4.1.2 Implementation Plan. CVCEA shall cause to be prepared 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. The
Implementation Plan shall not be filed with the Public Utilities Commission
until it is approved by the Board in the manner provided by Section 3.17.
4.1.3 Termination of CCA Program. Nothing contained in this Article or this
Agreement shall be construed to limit the discretion of CVCEA to
terminate the implementation or operation of the CCA Program at any
time in accordance with any applicable requirements of state law.
4.2 Authority Documents. The Parties acknowledge and agree that the affairs of
CVCEA will be implemented through various documents duly adopted by the
Board through Board resolution. The Parties agree to abide by and comply with
the terms and conditions of all such documents that may be adopted by the
Board, subject to the Parties' right to withdraw from CVCEA as described in
Article 6.
ARTICLE 5: FINANCIAL PROVISIONS
5.1 Fiscal Year. CVCEA's fiscal year shall be 12 months commencing July 1 and
ending June 30. The fiscal year may be changed by Board resolution.
5.2 Depository.
5.2.1 All funds of CVCEA shall be held in separate accounts in the name of
CVCEA and not commingled with funds of any Party or any other person
or entity.
5.2.2 All funds of CVCEA 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 CVCEA
shall be open to inspection 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 and records of
CVCEA,which shall be conducted in accordance with the requirements of
Section 6505 of the Act.
5.2.3 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 Rules and Regulations. 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.
Coachella Valley Community Choice Aggregation 13
Draft JPA Agreement,June 2017—Ver.2
5.3 Budget and Recovery of Costs.
5.3.1 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 CVCEA shall be approved by the Board in accordance with
the Operating Rules and Regulations.
5.3.2 Fundina of Initial Costs. The Parties acknowledge that implementing the
CCA Program will require some form of funding either provided by all or
some of the Parties or attained in some other manner. If the CCA
Program becomes operational, these Initial Costs paid by such Parties or
attained from other sources shall be included in the customer charges for
electric services as provided by Section 5.3.3 to the extent permitted by
law, and respective Parties or other sources shall be reimbursed from the
payment of such charges by customers of CVCEA. CVAG shall also be
entitled to reimbursement for Initial Costs. CVCEA may establish a
reasonable time period over which such costs are recovered and repaid
to respective Parties or other sources. In the event that the CCA
Program does not become operational, respective Parties shall not be
entitled to any reimbursement of the funded Initial Costs from CVCEA or
any Party. If any of the initial member agencies or other sources assists
in funding initial costs, they shall also be entitled to reimbursement
pursuant to this section. The Board shall approve the manner of funding
and repayment of initial CCA program costs which may include
reasonable interest charges.
5.3.3 CCA Program Costs. The Parties desire that all costs incurred by
CVCEA that are directly or indirectly attributable to the provision of
electric, conservation, efficiency, incentives, financing, or other services
provided under the CCA Program, including but not limited to the
establishment and maintenance of various reserves and performance
funds and administrative, accounting, legal, consulting, and other similar
costs, shall be recovered through charges to CCA customers receiving
such electric services, or from revenues from grants or other third-party
sources.
5.3.4 Employee Retirement and Post-retirement Benefits. Should the Board
determine to provide a defined benefits retirement benefit to CVCEA
employees (such as PERS) or other post-retirements benefits that would
be within an Other Post-Retirement Benefits (OPEB) obligation to CVCEA
employees, prior to providing such benefit(s) to any employee, the Board
shall (1) obtain a third party independent actuarial report on the long term
costs of the benefit or benefits, (2) adopt a funding plan for the payment
of both current and long-term costs that provides for the payment of all
such costs on a current, pay-as-you-go, basis and eliminates any known
or reasonably anticipated unfunded liability associated with the benefit(s)
and (3) notice all Member agencies of the pending consideration of the
benefit(s) together with the actuarial report and funding plan, for at least
Coachella Valley Community Choice Aggregation 14
Draft IPA Agreement,June 2017—Ver.2
sixty (60) days and obtain the consent, by resolution of not less than 75
percent of the then current Member agency boards or councils.
ARTICLE 6: WITHDRAWAL AND TERMINATION
6.1 Withdrawal.
6.1.1 Right to Withdraw. A Party may withdraw its participation in the CCA
Program, effective as of the beginning of CVCEA's next fiscal year, by
giving no less than 6 months advance written notice of its election to do
so, which notice shall be given to CVCEA and each Party. Withdrawal of
a Party shall require an affirmative vote of the Pa y's governing board.
6.1.2 Right to Withdraw After Amendment. Notwithstanding Section 6.1.1, a
Party may withdraw its membership in CVCEA following an amendment
to this Agreement adopted by the Board which the Party s Director voted
against, provided such notice is given in writing within thirty (30) days
following the date of the vote. Withdrawal of a Party shall require an
affirmative vote of the Party's governing board and small not be subject to
the six month advance notice provided in Section 6.1.1. In the event of
such withdrawal, the Party shall be subject to the provisions of Section
6.3.
6.1.3 The Right to Withdraw Prior to Program Launch. After receiving bids from
power suppliers, CVCEA shall provide to the Parties the report from the
electrical utility consultant(s) retained by CVCEA that compares the total
estimated electrical rates that CVCEA will be charging to customers as
well as the estimated greenhouse gas emissions rate and the amount of
estimated renewable energy used with that of the incumbent utility (SCE).
If the report provides that CVCEA is unable to provide total electrical
rates, as part of its baseline offering, to customers that are equal to or
lower than the incumbent utility or to provide power in a manner that has
a lower greenhouse gas emissions rate or uses more renewable energy
than the incumbent utility, a Party may immediately withdraw its
membership in CVCEA without any further financial obligation, as long as
the Party provides written notice of its intent to withdraw to CVCEA Board
no more than fifteen (15) days after receiving the report. A Party may also
withdraw its membership in CVCEA prior to December 31, 2017 for any
reason. Any withdrawing Party shall not be entitled to any return of funds
it may have provided to CVCEA, provided, however, that if, after the
program is launched there are unobligated and unused funds, the
withdrawing member shall be refunded its pro rat@ share of the
unobligated and unused funds.
6.1.4 Continuing Financial Obligation: Further Assurances. Except as provided
by Section 6.1.3, a Party that withdraws its participation in the CCA
Program may be subject to certain continuing financial obligations, as
described in Section 6.3. Each withdrawing Party and CVCEA shall
execute and deliver all further instruments and documents, and take any
further action that may be reasonably necessary, as determined by the
Coachella Valley Community Choice Aggregation 15
Draft JPA Agreement,June 2017—Ver.2
Board, to effectuate the orderly withdrawal of such Party from
participation in the CCA Program.
6.2 Involuntary Termination of a Party. Participation of a Party in the CCA program
may be terminated for material non-compliance with provisions of this Agreement
or any other agreement relating to the Party's participation in the CCA Program
upon a vote of Board members as provided in Section 3.17.5. Prior to any vote
to terminate participation 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 thirty (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 other agreement 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 participation in the CCA Program terminated may be subject to
certain continuing liabilities, as described in Section 6.3.
6.3 Continuing Financial Obligations: Refund. Except as provided by Section 6.1.3,
upon a withdrawal or involuntary termination of a Party, the Party shall remain
responsible for any claims, demands, damages, or other financial obligations
arising from such Party's membership or participation in the CCA Program
through the effective date of its withdrawal or involuntary termination, it being
agreed that the Party shall not be responsible for any new financial obligations
arising after the date of the Party's withdrawal or involuntary termination. Claims,
demands, damages, or other financial obligations for which a withdrawing or
terminated Party may remain liable include, but are not limited to, losses from the
resale of powe,-contracted for by CVCEA to serve the Party's load and any
unfunded liabilities such as unfunded retirement contributions or costs and any
unfunded post-retirement benefits. With respect to such financial obligations,
upon notice by a Party that it wishes to withdraw from the CCA Program, CVCEA
shall notify the Party of the minimum waiting period under which the Parry would
have no costs for withdrawal if the Party agrees to stay in the CCA Program for
such period. The waiting period will be set to the minimum duration such that
there are no costs transferred to remaining ratepayers. If the Party elects to
withdraw before the end of the minimum waiting period, the charge for exiting
shall be set at a dollar amount that would offset actual costs to the remaining
ratepayers, and may not include punitive charges that exceed actual costs. In
addition, such Party shall also 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. CVCEA may
withhold funds otherwise owing to the Party or may require the Party to deposit
sufficient funds with CVCEA, as reasonably determined by CVCEA and approved
by a vote of the Board, to cover the Party's financial obligations for the costs
described above. Any amount of the Party's funds held on deposit with CVCEA
above that which is required to pay any existing or ongoing financial obligations
shall be returned to the Party. If there is a disagreement related to the charges)
for exiting, the Parties shall attempt to settle the amount through mediation or
other dispute resolution process as authorized by section 7.1. If the dispute is
Coachella Valley Community Choice Aggregation 16
Draft JPA Agreement,June 2017—Ver.2
not resolved, the Parties may agree to proceed to arbitration, or any party may
seek judicial review. The liability of any Party under this section 6.3 is subject and
subordinate to the provisions of Section 2.2, and nothing in this section 6.3 shall
reduce, impair, or eliminate any immunity from liability provided by Section 2.2.
6.4 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 participation in the CCA Program, as
described in Section 6.1.
6.5 Disposition of Propertv upon Termination of Authority. Upon termination of this
Agreement, any surplus money or assets in possession of CVCEA for use under
this Agreement, after payment of all liabilities, costs, expenses, and charges
incurred under this Agreement and under any program documents, shall be
returned to the then-existing Parties in proportion to the contributions made by
each.
ARTICLE 7: MISCELLANEOUS PROVISIONS
7.1 Dispute Resolution. The Parties and CVCEA shall make reasonable efforts to
informally settle all disputes arising out of or in connection with this Agreement.
Should such informal efforts to settle a dispute, after reasonable efforts, fail, the
dispute shall be mediated in accordance with policies and procedures
established by the Board.
7.2 Liability of Directors. Officers and Employees. The Directors, officers, and
employees of CVCEA 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. CVCEA 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 Sections 995 et seq.
Nothing in this section shall be construed to limit the defenses available under the
law, to the Parties, CVCEA, or its Directors, officers, or employees
7.3 Indemnification of Parties. CVCEA shall acquire such insurance coverage as is
necessary to protect the interests of CVCEA, the Parties, and the public.
Subject to the provisions of Section 7.4 and provided that a Party has acted in
good faith and in accordance with this Agreement, CVCEA shall defend with
counsel acceptable to said Party, indemnify and hold such Party free and
harmless from any loss, liability or damage incurred or suffered by such Party by
reason of litigation arising from or as a result of any of the following: the Party's
participation in the JPA; action taken to approve and/or implement the CCA; or
any other act performed or to be performed by the Party pursuant to this
Agreement; provided, however that such indemnification or agreement to hold
harmless pursuant to this section shall be recoverable only out of CVCEA assets
and not from other Parties. To the extent CVCEA's assets are insufficient to
satisfy its obligations under this Section, any member Agency forced to expend
its own funds to satisfy what would otherwise be CVCEA's obligations shall be
entitled to reimbursement from CVCEA.
Coachella Valley Community Choice Aggregation 17
Draft JPA Agreement,June 2017—Ver.2
7.4 Limitations on Liability. The Parties acknowledge that Section 895.2 of the
California Government Code provides that a Member is jointly and severally
liable for the torts of the joint powers agency, but that Sections 895.4 and 895.6
of that Code allow the members of a joint powers agency to contractually agree
to indemnity and contribution provisions that allow such liability to be apportioned
among the members based on their respective degree of fault giving rise to the
liability.The Parties further acknowledge that they have agreed at Section 7.3
above to indemnify and defend those Member agencies against loss, liability or
damage suffered by a Member Agency individually as a result of that Agency's
good faith acts taken pursuant to this Agreement. Now, therefore, in
contemplation of such authority, the Parties agree that, as among themselves,
each shall assume that portion of the liability imposed upon CVCEA or any of its
Members, officers, agents or employees by law for injury caused by any
negligent or wrongful act or omission occurring during the performance of this
Agreement that is not covered by insurance, that is determined by the CVCEA to
be that Member's proportionate share accruing during the Member's period of
participation in CVCEA. Said determination shall be by three-fourths vote of the
Member Agencies, meaning an affirmative vote of three-fourths of the total
number of Member Agencies. The Members acknowledge that, given the
possible variables, determination of a proper apportionment may be difficult_
Therefore, subject only to arbitration rights set out at Section 6.3, the Members
agree that the Board's good faith determination of a fair apportionment shall be
final, binding and enforceable as a term of this Agreement. Each Member shall to
the extent provided herein indemnify and hold harmless the other Members for
any loss, costs or expenses that may be imposed on such other Members solely
by virtue of Section 895.2.
7.6 Amendment of this Agreement. This Agreement may not be amended except by
a written amendment approved by a vote of Board members as provided in
Section 3.17.5. CVCEA shall provide written notice to all Parties of amendments
to this Agreement, including the effective date of such amendments, at least 30
days prior to the date upon which the Board votes on such amendments.
Exhibits A through E of this Agreement may be revised from time to time by
Board vote and copies of such revised exhibits shall be distributed to all Parties.
7.6 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 7.5 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 7.5 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 CVCEA, or the
disposition of 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 CVCEA or the Parties under this Agreement.
7.7 Severability. If one or more clauses, sentences, paragraphs or provisions of this
Agreement shall be held to be unlawful, invalid or unenforceable, it is hereby
Coachella Valley Community Choice Aggregation 18
Draft JPA Agreement,June 2017—Ver.2
agreed by the Parties, that the remainder of the Agreement shall not be affected
thereby. Such clauses, sentences, paragraphs or provision shall be deemed
reformed so as to be lawful, valid and enforced to the maximum extent possible.
7.8 Further Assurances. Each Party agrees to execute and deliver all further
instruments and documents, and take any further action that may be reasonably
necessary, to effectuate the purposes and intent of this Agreement.
7.9 Execution by 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.
7.10 Parties to be Served Notice. Any notice authorized or required to be given
pursuant to this Agreement shall be validly given if served in writing either
personally, by deposit in the United States mall, first class postage prepaid with
return receipt requested, or by a recognized courier service. Notices given (a)
personally or by courier service shall be conclusively deemed received at the
time of delivery and receipt and (b) by mail shall be conclusively deemed given
48 hours after the deposit thereof(excluding Saturdays, Sundays and holidays) if
the sender receives the return receipt. All notices shall be addressed to the
office of the clerk or secretary of CVCEA or Party, as the case may be, or such
other person designated in writing by CVCEA or Party. Notices given to one
Party shall be copied to all other Parties. Notices given to CVCEA shall be
copied to all Parties.
7.11 No Third Party Beneficiaries. This Agreement shall reflect the Parties' rights and
obligations as by and among themselves. Nothing herein shall create any right in
any third party to enforce any right or obligation set out in this Agreement as
against any Party hereto.
Coachella Valley Community Choice Aggregation 19
Draft JPA Agreement,June 2017—Ver.2
EXHIBIT A
DEFINITIONS
1. "Act" means the Joint Exercise of Powers Act of the State of California (Government
Code Section 6500 et seg.)
2. "Administrative Services Agreement' means an agreement or agreements entered into
after the Effective Date by CVCEA with one or more entity that will perform tasks
necessary for planning, implementing, operating and/or administering the CCA Program,
or any portion of the CCA Program or any other energy programs adopted by CVCEA.
3. "Agreement" means this Joint Powers Agreement.
4. "Annual Energy Use" has the meaning given in Section 3.17.1(b).
5. "Authority" means the CVCEA.
6. "Authority Document(s)" means document(s) duly adopted by the Board by resolution or
motion implementing the powers, functions, and activities of CVCEA, including but not
limited to the Operating Rules and Regulations, the annual budget, and plans and
policies.
7. "Board" means the Board of Directors of CVCEA.
8. "CCA" or"Community Choice Aggregation" means an electric service option available to
cities and counties pursuant to Public Utilities Code Section 366.2.
9. "CCA Program" means CVCEA's program relating to CCA that is principally described in
Article 2 of this Agreement.
10. "CVAG" shall mean the Coachella Valley Association of Governments.
11. "Director" means a member of the Board of Directors appointed by and representing a
Party.
12. "Effective Date" means 2017 or when initial members of CVCEA
execute this Agreement,whichever occurs later, as further described in Section 2.1.
13. "Implementation Plan" means the plan generally described in Section 4.1.2 of this
Agreement that is required under Public Utilities Code Section 366.2 to be filed with the
California Public Utilities Commission for the purpose of describing a proposed CCA
Program.
14. "Initial Costs" means all costs incurred by the CVCEA and or any Parties relating to the
establishment and initial operation of CVCEA, such as the hiring of an Executive Officer
and any administrative staff, and any required accounting, administrative, technical, or
legal services in support of CVCEA's initial activities or in support of the negotiation,
preparation, and approval of one or more Administrative Services Agreements.
Coachella Valley Community Choice Aggregation 20
Draft JPA Agreement,June 2017—Ver.2
15. "Operating Rules and Regulations' means one or more sets of rules, regulations,
policies, bylaws and procedures governing the operation of CVCEA.
16.'Parties" or"Members" means, collectively, the signatories to this Agreement.
17. 'Party',"Member" or"Member Agency" means a signatory to this Agreement.
18. "Total Annual Energy Use" has the meaning given in Section 3.17.1(b).
e
I -
Coachella Valley Community Choice Aggregation 21
Draft JPA Agreement,June 2017—Ver.2
EXHIBIT B
LIST OF PARTIES
Parties: City of Blythe
City of Cathedral City
City of Desert Hot Springs
City of Indian Wells
City of Palm Desert
City of Palm Springs
Coachella Valley Community Choice Aggregation 22
Draft JPA Agreement,June 2017—Ver.2
EXHIBIT C
PROFORMA
ANNUAL ENERGY USE
Member Number of Customers Annual Energy Use
MWh
Blythe 5,898 117,000
Cathedral City 24,137 329,000
Desert Hot Springs 11,421 140,000
Indian Wells 5,230 158,000
Palm Desert 39,459 699,000
Palm Springs 37,826 640,000
Total 123,971 21083,000
Coachella Valley Community Choice Aggregation 23
Draft JPA Agreement,June 2017—Ver.2
EXHIBIT D
PROFORMA
VOTING SHARES
CVCEA CCA Program Participation and Weighted Voting Shares
Participants Annual Energy Percent Annual Annual Energy Use Pro Rata Voting Weighted
Use MWh Enerqy Use Veflng Share % Share% Voting Share
Blythe 117,CO3 5.62% 2.81% 6.33% 11.14%
Cathedral City 329,OCO 15.79% 7.%% 8.33% 16.23%
Desert HctSprings 140,COO 6.72% 3.36% 8,33% 11.69%
Indian Wells 158.00 7.59% 3.79% 8.33% 12.13%
Palm Desert 699.1)m 33.560,5 16.78% 8,33% 25.11%
Palm Springs 640.000 30,72% 15.36% 8.33% 23.70%
TOTA!_S Z083,0001 100.00% HMO/. 50MIA 100.00%
I. [
FORMULAS USED:
1. Annual Energy Use Voting Share: Total Annual Energy Use(expressed in MWh) in the Member's
jurisdiction/combined Total Annual Energy Use all Members'jurisdictions] multiplied by'G),
expressed as a percentage to two decimal places. See section 3.17.1 (b)
2. Pro-rata Voting Share: [1 /total number of members]multiplied by%), expressed as a percentage to
two decimal places. See section 3.17.1 (a)
3. Weiohted Voting Share: [the respective sum of the values computed in(1) and (2)above, expressed
as a percentage to hvo decimal places_ See section 3.17.1 (c)
Coachella Valley Community Choice Aggregation 24
Draft JPA Agreement,June 2017—Ver.2
EXHIBIT E
SIGNATURES
IN WITNESS WHEREOF,the Parties hereto have executed this Joint Powers Agreement
establishing the Coachella Valley Community Energy Authority
By:
Name:
Title:
Date:
Party:
(One signature page for each Member)
Coachella Valley Community Choice Aggregation ZS
Draft JPA Agreement,June 2017—Ver.2