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CC Resolution No. 9476RESOLUTION NO. 9476 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING PARTICIPATION IN THE ASSOCIATION OF BAY AREA GOVERNMENTS' POWER PURCHASING POOL WHEREAS, the City of Cupertino is currently purchasing natural gas and related transportation and distribution services from Pacific Gas & Electric (PG &E); and WHEREAS, energy rates in the Bay Area are among the highest in the nation, particularly for natural gas and electricity; and WHEREAS, deregulation of the natural gas industry in 1986 and deregulation of the electric services industry currently under consideration by the California Public Utilities Commission and the State legislature is creating new opportunities for local governments to lower their energy costs through collective action; and WHEREAS, there are no existing power purchasing pools for Bay Area local governments interested in lower energy costs; and WHEREAS, bulk purchasing of natural gas has proven itself to be a legal and cost - effective means to achieve reduction in energy costs through the use of a competitive bid program; and WHEREAS, it would greatly benefit the City of Cupertino to be prepared to take advantages of any coming changing in the regulation of the electric market; and WHEREAS, the City of Cupertino is a member /associate member of the Association of Bay Area Governments (ABAG); and WHEREAS, ABAG, in conjunction with New Energy Ventures, Inc. (NEV), proposes to form a Power Purchasing Pool Program to aggregate natural gas needs of interested ABAG members and associate members, to collectively negotiate a purchase of natural gas and transportation services through a competitive request for proposals, and to negotiate an agreement with PG &E for distribution of natural gas. NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby authorizes the participation of the City of Cupertino in the ABAG Power Purchasing Pool to undertake a bulk purchasing program for natural gas on behalf of the City of Cupertino and other ABAG members or cooperating members. BE IT FURTHER RESOLVED, that the City Manager, or his/her designee, is authorized to enter into a subscription agreement with ABAG, in substantially the form set forth in the attached Exhibit A appointing ABAG as the agent for the City of Cupertino in negotiating a Resolution No. 9476 • • Page 2 distribution agreement with PG &E, issuing a Request for Proposal for the purchase and transportation of natural gas and negotiation of a contract with the responsive, responsible contractor proposing the lowest costs. BE IT ALSO RESOLVED, that the City Manager is authorized to execute and deliver the contracts negotiated by ABAG on behalf of the City of Cupertino and is appointed the City's representative on ABAG's Power Purchasing Committee to oversee the operation of Power Purchasing Pool program. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 16th day of October, 1995, by the following vote: Y= AYES: Bautista, Burnett, Koppel, Sorensen, Dean NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: City Clerk Mayor, City Cupertino 0 Exhibit A POWER PURCHASING PROGRAM SUBSCRIPTION AGREEMENT No. 96.01 This Agreement made effective the day of , 1995, between the Association of Bay Area Governments (ABAG), a joint powers entity created pursuant to California Government Code Sections 6500 et. seq., and the City of Cupertino (City), a California Corporation. RECITALS . A. The City currently purchases natural gas, and natural gas transportation and distribution from Pacific Gas & Electric (PG &E). B. ABAG, with the assistance of New Energy Ventures, Inc. (NEV), has organized a program for the bulk purchase of natural gas and for natural gas transportation and distribution services on behalf of interested members of ABAG (Power Purchasing Program). C. ABAG's Power Purchasing Program has the potential to generate cost savings in the City's use of natural gas. Therefore, in consideration of the mutual promises contained in this Agreement, the parties agree to perform as follows: 1. Scope of Services. (a) The City hereby appoints ABAG its exclusive agent from the effective date of this Agreement until the Expiration Date as defined in Section 2 or until this Agreement is terminated in accordance with its terms, with all powers reasonably necessary to accomplish the following: (1) Negotiate an agreement with PG &E for the distribution of natural gas to some or all of the locations at which PG &E currently distributes natural gas to the City (PG &E Agreement) . (2) Issue a Request for Proposal (RFP) for the purchase and delivery of natural gas to the PG &E distribution system. (3) Negotiate a contract with the responsive, responsible entity proposing the lowest cost for furnishing and transporting natural gas (Natural Gas Purchase Contract). 0 0 (b) City acknowledges that ABAG will be aggregating some or all of the natural gas requirements of the City and other members and associate members of ABAG and that the RFP process, negotiations and contracts contemplated under subsection 1(a) will be performed on behalf of the City and other ABAG members. City will use reasonable efforts to transmit, or cause to be transmitted to ABAG such information as may be necessary for ABAG to determine the City's natural gas needs based on past usage patterns and to efficiently aggregate the City's natural gas needs with those of other ABAG members participating in the Power Purchasing Program, including utility bills and locations of utility meters. (c) ABAG will act on behalf of the City and other members of ABAG participating in the Power Purchasing Program as described in subsection 1(a) of this Agreement. 2. Term. This Agreement is effective as the date first set forth above and shall expire on the earlier of the projected date of the expiration of the fast Natural Gas Purchase Contract or the date the City fails to execute and deliver the Natural Gas Purchase Contract or the PG &E Agreement pursuant to Section 4(b) (Expiration Date). This Agreement may terminate prior to the expiration date in accordance with the provisions of Section 10 of Exhibit A. 3. Compensation. (a) Upon execution and delivery of the Natural Gas Purchase Contract and PG &E Agreement, the City shall be obligated to pay transaction fees to ABAG to cover ABAG's costs in implementing the Power Purchasing Program. ABAG's transaction fees will not exceed six cents ($.06) per decatherm of natural gas delivered to the City during the term of the Natural Gas Purchase Contract. (b) The amount or method of determining of ABAG's fees will be identified in the Rate Proposal described in Section 4(a). (c) Subject to Section 3(a), on the first day of each [month/quarter /or exact dates], ABAG will send an invoice for its fees to City for review. City will pay the invoice within thirty (30) days of receipt or submit a written statement within that time stating the basis for the City's disapproval of all or a portion of the invoice. Fee disputes will be resolved by mutual agreement [or submitted to arbitration under Section 13 of Exhibit A]. 4. Participation. (a) Upon completion of ABAG's negotiation of a PG &E Agreement and a Natural Gas Purchase Contract, such agreements and a Rate Schedule containing (1) the proposed total unit cost of natural gas as transported to identified City meter locations; (2) the total unit cost of natural gas transferred to identified City locations last year; and (3) ABAG's fees shall be submitted to the individual identified in Section 0 0 (b) The City shall within ( working days of the date of the Rate Schedule deliver to ABAG: (1) Duly authorized and validly executed originals of the Natural Gas Purchase Contract and PG &E Agreement; or (2) The City's rejection of the agreements and/or fees; or (3) The City Council resolution withdrawing from the Power Purchasing Program. 5. Power Purchasing Pool Committee. Upon execution and delivery of the PG &E Agreement and the Natural Gas Purchase Contract, the City Manager or his designee, shall be the City's representative to the Power Purchasing Pool Committee. The Power Purchasing Pool Committee shall provide policy direction for the Power Purchasing Program. The Committee's powers shall include admission of new Participants and the extension of the PG &E Agreement and the Natural Gas Purchase Contract, under rules and procedures adopted by the Committee. 6. Approvals. The City Representative may grant any approval, or give any direction required by this Agreement, in writing or orally. Written approvals or directions may be transmitted physically, by facsimile or electronically. Oral approvals will be confirmed in writing by either party. 7. Written Notices. Written notices shall be transmitted to the following: ABAG: , Association of Bay Area Governments P.O. Box 2050 Oakland, CA 94604 -2050 Facsimile: Electronic Mail: Public Agency: Carol Atwood City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 8. Attorneys' Fees. In the event either of the parties brings an action or legal proceeding due to an alleged breach of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs as determined by a court of competent jurisdiction. 9. Subcontractors. ABAG may not subcontract any portion of the work under this Agreement without the City's prior written consent. The City hereby consents to ABAG's contracting with NEV. 10. Ownership of Files, Reports, Photographs, and Related Documents. Upon completion of the work or termination of the Agreement, any and all files, reports, photographs, plans, specifications, drawings, data, maps, models and related documents respecting in any way the subject matter of this Agreement, whether prepared by ABAG, the City or third parties and in whatever media they are stored shall remain or shall become the property of the City and the City shall acquire title to, and copyright ownership of, all such documents. The City hereby grants to ABAG an irrevocable license to retain a copy of all records covered by this section for ABAG's files. 11. Other Contract Provisions. This Agreement shall be subject to the other standard provisions which are set forth in the attached Exhibit A -1, which is incorporated by this reference. IN WITNESS WHEREOF, the parties have hereunto set their hands effective the date and year first above written. ASSOCIATION OF BAY AREA GOVERNMENTS by: Eugene Y. Leong, Executive Director Approved as to legal form and content: by: Kenneth K. Moy, Legal Counsel City of Cupertino by: Donald D. Brown, City Manager Approved as to legal form and content: by: Charles T. Kilian, City Attorney 0 • EXHIBIT A -1 STANDARD CONTRACT PROVISIONS 1. Assignmen . This Agreement shall not be assigned, transferred, hypothecated, or pledged by either party without prior written consent of the other. 2. Amendment. This Agreement may be amended at any time, but only by a writing signed by both parties. 3. Time of Essence. Time is of the essence in this Agreement. 4. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or a different provision of this Agreement. 5. $ggdino-q. The descriptive headings used in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of its provisions. 6. Entire Agreement. This Agreement is entire as to all of the performances to be rendered under it. This Agreement supersedes any and all other contracts either oral or in writing between ABAG and City with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to such matter. Each party to this Agreement acknowledges that no representations, inducements, promises, or contracts, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other contract, statement, or promise not contained in this Agreement shall be valid or binding. 7. Controlling Law. This Agreement and all matters relating to it shall be governed by the laws of the State of California 8. Binding on Successors, Etc. This Agreement shall be binding upon the successors, assigns, or transferees of ABAG or City as the case may be. This provision shall not be construed as an authoriTation to assign, transfer, hypothecate, or pledge this Agreement other than as provided above. 9. Severability. Should any part of this Agreement be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect; provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties. r 10. Termination. If, through any cause, either party fails to fulfill in timely and proper manner its obligations under this Agreement, or if such party violates any of the covenants, conditions, contracts, or stipulations of this Agreement, the other party has the right to terminate this Agreement by giving written notice to the breaching party specifying the effective date of termination. Notice of termination shall be given at least five (5) days before its effective date. This section does not relieve the other party of liability to the other for damages arising out of a breach of this Agreement. 11. Records /Audit. ABAG shall keep complete and accurate books and records of all financial aspects of its relationship with City in accordance with generally- accepted accounting principles. ABAG shall permit authorized representatives of City and/or any of City's governmental grantors to Inspect, copy, and audit all data and records of ABAG relating to its performance of services under this Agreement. ABAG shall maintain all such data and records intact for a period of three (3) years after the date that services are completed hereunder or this Agreement is otherwise terminated. 12. Prohibited Interest. ABAG's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subcontracts. 13. Insurance Requirements. (a) ABAG shall, at its own expense, obtain and maintain in effect at all times during the life of this Agreement the following insurance: (1) Workers' compensation insurance as required by law. (2) Comprehensive general liability insurance coverage of One Million Dollars (51,000,000) in the aggregate for products and/or completed operations and One Million Dollars ($1,000,000) per occurrence for automobiles. (3) Professional liability insurance with minimum liability limits of Two Million Dollars ($2,000,000) in the aggregate. (b) All ABAG's insurance policies shall contain an endorsement providing that written notice shall be given to City at least thirty (30) days prior to termination, cancellation, or reduction of coverage in the policy or policies, and all policies shall be carried by an insurance company or companies acceptable to City. (c) In addition, each policy or policies of insurance described in subparagraph (2) above shall contain an endorsement providing for inclusion of City and its directors, officers, agents, and employees as additional insureds with respect to the work or operations in connection with this Agreement and providing that such insurance is primary insurance and that no insurance of City will be called upon to contribute to a loss. (d) Promptly upon execution of this Agreement, ABAG shall deliver to City certificates of insurance evidencing the above insurance coverages. Such certificates shall make reference to all provisions or endorsements required herein and shall be signed on behalf of the insurer by an authorized representative thereof. ABAG agrees that at any time upon written request by City to make available copies of such policies certified by an authorized representative of the insured. (e) The foregoing requirements as to types and limits of insurance coverage to be maintained by ABAG and approval of policies by City are not intended to, and shall not, in any manner limit or qualify the liabilities and obligations otherwise assumed by ABAG pursuant to this Agreement, including, but not limited to, liability assumed pursuant to ABAG's insurance policies under Subsections (a)(2) of this section. (� ABAG shall require all subcontractors to comply with the insurance requirements described in Section 13(a )-(d), inclusive. (14. Arbitration. Any dispute between ABAG and the City regarding the interpretation, effects, alleged breach or powers and duties arising out of this Agreement shall be submitted to binding arbitration. The arbitrator shall be selected by agreement between the parties by lot from a list of up to six (6) arbitrators with each party submitting up to three (3) arbitrators.]