HomeMy WebLinkAboutMBCP-Amended-JPAAMENDMENT NO. 1 TO MONTEREY BAY COMMUNITY POWER AUTHORITY
JOINT EXERCISE OF POWERS AGREEMENT
This Amendment No. 1 amends the Monterey Bay Community Power Authority Joint Exercise of
Powers Agreement (“Agreement”) as follows:
1.The title to the Agreement is hereby amended to read:
JOINT EXERCISE OF POWERS AGREEMENT RELATING TO AND CREATING THE
Monterey Bay Community Power Authority
OF
Monterey, Santa Cruz, and San Benito Counties and Certain Cities in San Luis Obispo County
2.The introductory paragraph to the Agreement is hereby amended to read:
This Joint Exercise of Powers Agreement, effective on the date determined by Section 2.1, is
made and entered into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1
(Sections 6500 et seq.) of the California Government Code relating to the joint exercise of
powers among the Parties set forth in Exhibit B, establishes the Monterey Bay Community
Power Authority (“Authority”), and is by and among the Counties of Monterey, Santa Cruz, and
San Benito who become signatories to this Agreement (“Counties”), those cities and towns
within the Counties of Monterey, Santa Cruz, and San Benito who become signatories to this
Agreement and the Cities of San Luis Obispo and Morro Bay who become signatories to this
Agreement, and relates to the joint exercise of powers among the signatories hereto.
3.Section 3.1.1 of the Agreement is hereby amended to read:
3.1.1 Both Boards shall consist of Directors representing any of the three Counties of
Monterey, Santa Cruz, or San Benito that become a signatory to the Agreement,
Directors representing any of the Cities or Towns within those counties that becomes a
signatory to the Agreement, and Directors representing the cities of San Luis Obispo and
Morro Bay (“Directors”). Each Director shall serve at the pleasure of the governing
board of the Party who appointed 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 90
days of the date that such position becomes vacant.
4. Section 3.1.5 of the Agreement is hereby amended to read:
3.1.5 Shared Board seats will be determined through the Mayors and Councilmembers’ city
selection process in their respective counties, with a term of two years except that the
Cities of San Luis Obispo and Morro Bay shall determine the manner in which their
shared seats shall be allocated. Directors may be reappointed, following the Mayors and
Councilmembers’ city selection process in their respective counties, or as determined by
the Cities of San Luis Obispo and Morro Bay for their shared seats and serve multiple
terms. In the event of an established Board seat transitioning to a shared seat due to
the addition of a new party, the sitting Director will automatically be the first
representative for that shared seat to ensure continuity and maintain experience.
5. Exhibit B, List of Parties, to the Agreement is hereby amended to add the City of San Luis
Obispo and the City of Morro Bay.
6. Exhibit C, Regional Allocation, to the Agreement is hereby amended to add a new subsection
xii to read:
xii. One shared seat for the Cities of San Luis Obispo and Morro Bay selected by the
agreement of these two cities.
This Amendment No. 1 to the Monterey Bay Community Power Authority Joint Exercise of
Powers Agreement was duly adopted by the Policy Board of Directors in accordance with
Section 7.4 of this Agreement on December 5, 2018.
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JOINT EXERCISE OF POWERS AGREEMENT RELATING TO AND CREATING THE
Monterey Bay Community Power Authority
OF
Monterey, Santa Cruz, and San Benito Counties and Certain
Cities in San Luis Obispo County
This Joint Exercise of Powers Agreement, effective on the date determined by Section
2.1, is made and entered into pursuant to the provisions of Title 1, Division 7, Chapter 5,
Article 1 (Sections 6500 et seq.) of the California Government Code relating to the joint
exercise of powers among the Parties set forth in Exhibit B, establishes the Monterey Bay
Community Power Authority (“Authority”), and is by and among the Counties of
Monterey, Santa Cruz, and San Benito who become signatories to this Agreement
(“Counties”) those cities and towns within the Counties of Monterey, Santa Cruz, and
San Benito who become signatories to this Agreement and the Cities of San Luis Obispo
and Morro Bay who become signatories to this Agreement, and relates to the joint
exercise of powers among the signatories hereto.
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
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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 in Monterey,
Santa Cruz, and San Benito Counties and neighboring regions;
b. Providing electric power and other forms of energy to customers at
affordable rates that are competitive with the incumbent utility;
c. Carrying out programs to reduce energy consumption;
d. Stimulating and sustaining the local economy by lowering electric rates and
creating local jobs as a result of MBCP’s CCE program; and
e. Promoting long-term electric rate stability and energy security and reliability
for residents through local control of electric generation resources.
D. It is the intent of this Agreement to promote the development and use of a wide
range of renewable energy sources and energy efficiency programs, including but
not limited to solar, wind, and geothermal energy production. The 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.
a. It is further desired to establish a short-term and long-term energy portfolio
that prioritizes the use and development of State, local and regional
renewable resources and carbon free resources.
b. In compliance with State law and in alignment with the Authority’s desire to
stimulate the development of local renewable power, the Authority shall draft
an Integrated Resource Plan that includes a range of local renewable
development potential in the Monterey Bay Region and plans to incorporate
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local power into its energy portfolio as quickly as is possible and
economically feasible.
E. The Parties desire to establish a separate public Authority, known as the Monterey
Bay Community Power Authority, under the provisions of the Joint Exercise of
Powers Act of the State of California (Government Code Section 6500 et seq.)
(“Act”) in order to collectively study, promote, develop, conduct, operate, and
manage energy programs.
F. The Parties anticipate adopting an ordinance electing to implement through the
Authority 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(c) and 366.2. The first priority of the Authority 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: Regional Allocations
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ARTICLE 2: FORMATION OF MONTEREY BAY COMMUNITY POWER
AUTHORITY
2.1. Effective Date and Term. This Agreement shall become effective and “Monterey Bay
Community Power Authority” shall exist as a separate public Authority on the date that
this Agreement is executed by at least three Initial Participants from the Counties of
Monterey, Santa Cruz, and San Benito and the municipalities within those counties, after
the adoption of the ordinances required by Public Utilities Code Section 366.2(c)(12).
The Authority shall provide notice to the Parties of the Effective Date. The Authority
shall continue to exist, and this Agreement shall be effective, until this Agreement is
terminated in accordance with Section 6.4, subject to the rights of the Parties to withdraw
from the Authority.
2.2. Formation. There is formed as of the Effective Date a public Authority named the
Monterey Bay Community Power Authority. Pursuant to Sections 6506 and 6507 of the
Act, the Authority is a public Authority separate from the Parties. Pursuant to Sections
6508.1 of the Act, the debts, liabilities or obligations of the Authority 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 the Authority. 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 the Authority. 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.
2.3. Purpose. The purpose of this Agreement is to establish an independent public
Authority in order to exercise powers common to each Party to 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
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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 the
Authority.
2.4. Powers. The Authority shall have all powers common to the Parties and such
additional powers accorded to it by law. The Authority is authorized, in its own name, to
exercise all powers and do all acts necessary and proper to carry out the provisions of this
Agreement and fulfill its purposes, including, but not limited to, each of the following
powers, subject to the voting requirements set forth in Section 3.7 through 3.7.1:
2.4.1. to make and enter into contracts;
2.4.2. to employ agents and employees, including but not limited to a Chief
Executive Officer;
2.4.3. to acquire, contract, manage, maintain, and operate any buildings,
infrastructure, works, or improvements;
2.4.4. 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, the Authority shall not exercise the power of eminent domain
within the jurisdiction of a Party without approval of the affected Party’s
governing board;
2.4.5. to lease any property;
2.4.6. to sue and be sued in its own name;
2.4.7. to incur debts, liabilities, and obligations, including but not limited to
loans from private lending sources pursuant to its temporary borrowing
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powers such as Government Code Sections 53850 et seq. and authority
under the Act;
2.4.8. 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;
2.4.9. to issue revenue bonds and other forms of indebtedness;
2.4.10. to apply for, accept, and receive all licenses, permits, grants, loans or
other aids from any federal, state, or local public agency;
2.4.11. 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;
2.4.12. to adopt Operating Rules and Regulations;
2.4.13. to make and enter into service agreements relating to the provision of
services necessary to plan, implement, operate and administer the CCA
Program and other energy programs, including the acquisition of electric
power supply and the provision of retail and regulatory support services;
and
2.4.14. 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 the Authority to act as the community
choice aggregator on its behalf.
2.5. Limitation on Powers. As required by Government Code Section 6509, the power
of the Authority is subject to the restrictions upon the manner of exercising power
possessed by the City of Santa Cruz and any other restrictions on exercising the powers
of the authority that may be adopted by the board.
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2.6. Compliance with Local Zoning and Building Laws and CEQA. Unless state or
federal law provides otherwise, any facilities, buildings or structures located, constructed,
or caused to be constructed by the Authority within the territory of the Authority shall
comply with the General Plan, zoning and building laws of the local jurisdiction within
which the facilities, buildings or structures are constructed and comply with the
California Environmental Quality Act (“CEQA”).
ARTICLE 3: GOVERNANCE AND INTERNAL ORGANIZATION
3.1. Boards of Directors. The governing bodies of the Authority shall consist of a Policy
Board of Directors (“Policy Board”) and an Operations Board of Directors (“Operations
Board”).
3.1.1. Both Boards shall consist of Directors representing any of the three
Counties of Monterey, Santa Cruz, or San Benito that become a signatory
to the Agreement, Directors representing any of the Cities or Towns
within those counties that becomes a signatory to the Agreement, and
Directors representing the Cities of San Luis Obispo and Morro Bay
(“Directors”). Each Director shall serve at the pleasure of the governing
board of the Party who appointed 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 90 days of the date that such position
becomes vacant.
3.1.2. Policy Board Directors must be elected members of the Board of
Supervisors or elected members of the City or Town Council of the
municipality that is the signatory to this Agreement. Jurisdictions may
appoint an alternate to serve in the absence of its Director on the Policy
Board. Alternates for the Policy Board must be members of the Board of
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Supervisors or members of the governing board of the municipality that is
the signatory to this Agreement.
3.1.3. Operations Board Directors must be the senior executive/County
Administrative Officer of any County that is the signatory to this
Agreement, or senior executive/City Manager from any municipality that
is the signatory to this Agreement. Jurisdictions may appoint an alternate
to serve in the absence of its Director on the Operations Board. Alternates
for the Operations Board must be administrative managers of the County
or administrative managers of the governing board of the municipality
that is the signatory to this Agreement.
3.1.4. Board seats will be allocated under the following formulas. Policy and
Operations Board seats for founding JPA members (i.e. those jurisdictions
that pass a CCA ordinance by February 28, 2017) will be allocated on a
one jurisdiction, one seat basis until such time as the number of member
jurisdictions exceeds eleven. Once the JPA reaches more than eleven-
member agencies, the Policy and Operations Boards’ composition shall
shift to a regional allocation based on population size. This allocation
shall be one seat for each jurisdiction with a population of 50,000 and
above, and shared seats for jurisdictions with populations below 50,000
allocated on a sub-regional basis, as set forth in Exhibit C.
Notwithstanding the above, the County of San Benito shall be allotted one
seat.
3.1.5. Shared board seats will be determined through the Mayors and
Councilmembers’ city selection process in their respective counties, with
a term of two years except that the Cities of San Luis Obispo and Morro
Bay shall determine the manner in which their shared seats shall be
allocated. Directors may be reappointed, following the Mayors and
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Councilmembers’ city selection process in their respective counties, or as
determined by the Cities of San Luis Obispo and Morro Bay for their
shared seats and serve multiple terms. In the event of an established board
seat transitioning to a shared seat due to the addition of a new party, the
sitting Director will automatically be the first representative for that
shared seat to ensure continuity and maintain experience.
3.2. Quorum. A majority of the appointed Directors shall constitute a quorum, except
that less than a quorum may adjourn in accordance with law.
3.3. Powers and Functions of the Boards. The Boards shall exercise general
governance and oversight over the business and activities of the Authority, consistent
with this Agreement and applicable law. The Boards shall provide general policy
guidance to the CCA Program.
3.3.1. The Policy Board will provide guidance/approval in the areas of strategic
planning and goal setting, passage of Authority budget and customer
rates, and large capital expenditures outside the typical power
procurement required to provide electrical service.
3.3.2. The Operations Board will provide oversight and support to the Chief
Executive Officer on matters pertaining to the provision of electrical
service to customers in the region, focusing on the routine, day-to-day
operations of the Authority.
3.3.3. Policy Board approval shall be required for any of the following actions,
including but not limited to:
(a) The issuance of bonds, major capital expenditures, or any other
financing even if program revenues are expected to pay for such
financing;
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(b) The appointment or removal of officers described in Section 3.9,
subject to Section 3.9.3;
(c) The appointment and termination of the Chief Executive Officer;
(d) The adoption of the Annual Budget;
(e) The adoption of an ordinance;
(f) The setting of rates for power sold by the Authority and the setting
of charges for any other category of service provided by the
Authority;
(g) The adoption of the Implementation Plan;
(h) The selection of General Counsel, Treasurer and Auditor;
(i) The amending of this Joint Exercise of Powers Agreement; and
(j) Termination of the CCA Program.
3.3.4. Operations Board approval shall be required for the following actions,
including but not limited to:
(a) The approval of Authority contracts and agreements, except as
provided by Section 3.4; and
(b) Approval of Authority operating policies and other matters
necessary to ensure successful program operations.
3.3.5. Joint approval of the Policy and Operations Boards shall be required for
the initiation or resolution of claims and litigation where the Authority
will be the defendant, plaintiff, petitioner, respondent, cross complainant
or cross petitioner, or intervenor; provided, however, that the Chief
Executive Officer or General Counsel, on behalf of the Authority, may
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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
authority, without approval of the Boards as long as such action is
consistent with any adopted Board policies.
3.4. Chief Executive Officer. The Authority shall have a Chief Executive Officer
(“CEO”). The Operations Board shall present nomination(s) of qualified candidates to the
Policy Board. The Policy Board shall make the selection and appointment of the CEO
who will be an employee of the Authority and serve at will and at the pleasure of the
Policy Board.
The CEO shall be responsible for the day-to-day operation and management of the
Authority and the CCA Program. The CEO may exercise all powers of the Authority,
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 falls within the
Authority’s fiscal policies to be set by the Policy Board, except the powers specifically
set forth in Section 3.3 or those powers which by law must be exercised by the Board(s)
of Directors. The CEO shall report to the Policy Board on matters related to strategic
planning and goal setting, passage of Authority budget and customer rates, and large
capital expenditures outside the typical power procurement required to provide electrical
service. The CEO shall report to the Operations Board on matters related to Authority
policy and the provision of electrical service to customers in the region, focusing on the
routine, day-to-day operations of the Authority. It shall be the responsibility of the CEO
to keep both Board(s) appropriately informed and engaged in the discussions and actions
of each to ensure cooperation and unity within the Authority.
3.5. Commissions, Boards, and Committees. The Boards may establish any advisory
committees they deem appropriate to assist in carrying out the CCA Program, other
energy programs, and the provisions of this Agreement which shall comply with the
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requirements of the Ralph M. Brown Act. The Boards may establish rules, regulations,
policies, b ylaws or procedures to govern any such commissions, boards, or committees if
the Board(s) deem it appropriate to appoint such commissions, boards or committees, and
shall determine whether members shall be compensated or entitled to remboursement for
expanses.
3.6. Director Compensation. Directors shall serve without compensation from the
Authority. However, Directors may be compensated by their respective appointing
authorities. The Boards, however, may adopt by resolution a policy relating to the
reimbursement by the Authority of expenses incurred by their respective Directors.
3.7. Voting. Except as provided in Section 3.7.1 below, actions of the Boards shall
require the affirmative vote of a majority of Directors present at the meeting.
3.7.1. Special Voting Requirements for Certain Matters.
(a) Two-Thirds 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 Party), or Section 7.4 (amendment of
this Agreement) shall require the affirmative vote of at least two-
thirds of Directors present.
(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 the Authority to acquire any property interest other than an
easement, right-of-way, or temporary construction easement
shall require a vote of at least 75% of all Directors present.
ii. The imposition on any Party 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
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75% of all Directors and the approval of the governing boards
of the Parties who are being asked to make such contribution or
pledge.
iii. For purposes of this section, “imposition on any Party 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 party
imposed under Section 6.3.
3.8. Meetings and Special Meetings of the Board. The Policy Board shall hold up to
three regular meetings per year, with the option for additional or special meetings as
determined by the Chief Executive Officer or Chair of the Policy Board after consultation
with the Chief Executive Officer. The Operations Board shall hold at least eight meetings
per year, with the option for additional or special meetings. 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 Boards 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.).
3.9. Selection of Board Officers.
3.9.1. Policy Board Chair and Vice Chair. The Policy Board shall select, from
among themselves, a Chair, who shall be the presiding officer of all
Policy Board meetings, and a Vice Chair, who shall serve in the absence
of the Chair. The Policy Board Chair and Vice Chair shall act as the
overall Chair and Vice Chair for Monterey Bay Community Power
Authority. The term of office of the Chair and Vice Chair shall continue
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for one year, but 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:
(a) the person serving dies, resigns, is no longer holding a qualifying
public office, or the Party that the person represents removes the
person as its representative on the Board; or
(b) the Party that he or she represents withdraws from the Authority
pursuant to the provisions of this Agreement.
3.9.2. Operations Board Chair and Vice Chair. The Operations Board shall
select, from among themselves, a Chair, who shall be the presiding officer
of all Operations Board meetings, and a Vice Chair, who shall serve in the
absence of the Chair. The term of office of the Chair and Vice Chair shall
continue for one year, but there shall be no limit on the number of terms
held by either the Chair or Vice Chair. The office of either the Chair or
Vice Chair shall be declared vacant and a new selection shall be made if:
(a) the person serving dies, resigns, or is no longer the senior
executive of the Party that the person represents or;
(b) the Party that he or she represents withdraws from the Authority
pursuant to the provisions of this Agreement.
3.9.3. Secretary. Each Board shall appoint a Secretary, who need not be a
member of the Board, who shall be responsible for keeping the minutes of
all meetings of each Board and all other official records of the Authority.
If the Secretary appointed is an employee of the Authority, that employee
may serve as Secretary to both Boards.
3.9.4. The Policy Board shall appoint a qualified person to act as the Treasurer
and a qualified person to act as the Auditor, neither of whom needs to be a
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member of the Board. If the Board so designates, and in accordance with
the provisions of applicable law, a qualified person may hold both the
office of Treasurer and the office of Auditor of the Authority. Unless
otherwise exempted from such requirement, the Authority shall cause an
independent audit to be made by a certified public accountant, or public
accountant, in compliance with Section 6505 of the Act. The Treasurer
shall report directly to the Policy 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.
3.10. Administrative Services Provider. The Board(s) may appoint one or more
administrative services providers to serve as the Authority’s agent for planning,
implementing, operating and administering the CCA Program, and any other program
approved by the Board, in accordance with the provisions of an Administrative Services
Agreement. The appointed administrative services provider may be one of the Parties. An
Administrative Services Agreement shall set forth the terms and conditions by which the
appointed administrative services provider shall perform or cause to be performed all
tasks necessary for planning, implementing, operating and administering the CCA
Program and other approved programs. The Administrative Services Agreement shall set
forth the term of the Agreement and the circumstances under which the Administrative
Services Agreement may be terminated by the Authority. This section shall not in any
way be construed to limit the discretion of the Authority to hire its own employees to
administer the CCA Program or any other program. The Administrative Services
Provider shall be either an employee or a contractor of the Authority unless a member
agency is providing the service.
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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
intends to implement a CCA Program by and through its participation in
the Authority.
4.1.2. Implementation Plan. The Policy Board 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 Policy Board in the manner
provided by Section 3.7.
4.1.3. Termination of CCA Program. Nothing contained in this Article or this
Agreement shall be construed to limit the discretion of the Authority to
terminate the implementation or operation of the CCA Program at any
time in accordance with any applicable requirements of state law.
4.2. Authority Documents. The Parties acknowledge and agree that the affairs of the
Authority will be implemented through various documents duly adopted by the Board(s)
through resolution, including but not limited to the MBCP Implementation Plan and
Operating Policies. The Parties agree to abide by and comply with the terms and
conditions of all such documents that may be adopted by the Board(s), subject to the
Parties’ right to withdraw from the Authority as described in Article 6.
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ARTICLE 5: FINANCIAL PROVISIONS
5.1. Fiscal Year. The Authority’s fiscal year shall be 12 months commencing April 1
or the date selected by the Authority. The fiscal year may be changed by Policy
Board resolution.
5.2. Depository.
5.2.1. All funds of the Authority shall be held in separate accounts in the name
of the Authority and not commingled with funds of any Party or any other
person or entity.
5.2.2. All funds of the Authority shall be strictly and separately accounted for,
and regular reports shall be rendered of all receipts and disbursements, at
least quarterly during the fiscal year. The books and records of the
Authority shall be open to inspection by the Parties at all reasonable
times. The Board(s) shall contract with a certified public accountant or
public accountant to make an annual audit of the accounts and records of
the Authority, 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(s) 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(s).
5.3. Budget and Recovery of Costs.
5.3.1. Budget. The initial budget shall be approved by the Policy Board. The
Board may revise the budget from time-to-time as may be reasonably
necessary to address contingencies and unexpected expenses. All
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subsequent budgets of the Authority shall be approved by the Policy
Board in accordance with the Operating Rules and Regulations.
5.3.2. Funding of Initial Costs. The County of Santa Cruz has funded certain
activities necessary to implement the CCA Program. If the CCA Program
becomes operational, these Initial Costs paid by the County of Santa Cruz
shall be included in the customer charges for electric services as provided
by Section 5.3.3 to the extent permitted by law, and the County of Santa
Cruz shall be reimbursed from the payment of such charges by customers
of the Authority. Prior to such reimbursement, the County of Santa Cruz
shall provide such documentation of costs paid as the Board may request.
The Authority may establish a reasonable time-period over which such
costs are recovered. In the event, that the CCA Program does not become
operational, the County of Santa Cruz shall not be entitled to any
reimbursement of the Initial Costs it has paid from the Authority or any
Party.
5.3.3. CCA Program Costs. The Parties desire that all costs incurred by the
Authority 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. Credit Guarantee Requirement. The Parties acknowledge that there will
be a shared responsibility to provide some level of credit support (in the
form of a letter of credit, cash collateral or interagency agreement) for
1/20/17 as amended 12/5/18 Page 19
Authority start-up and initial working capital as may be required by a
third-party lender. Guarantee requirements shall be released after program
launch and as soon as possible under the terms of the third-party credit
agreement(s). The credit guarantee will be distributed on a per-seat basis.
Shared seat members will divide the credit guarantee among the cities
sharing those seats. The term of the credit guarantee shall be the same
term as specified in the banking agreement. Once a Party has made a
credit guarantee, that guarantee shall remain in place until released, even
if that Party withdraws from the Authority.
5.3.5. The County of Santa Cruz has agreed to provide initial administrative
support on a cost reimbursement basis to the JPA once formed. This
includes, but is not limited to, personnel, payroll, legal, risk management.
ARTICLE 6: WITHDRAWAL
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 the Authority’s fiscal year, by
giving no less than 6 months advance written notice of its election to do
so, which notice shall be given to the Authority and each Party.
Withdrawal of a Party shall require an affirmative vote of the Party’s
governing board.
6.1.2. Right to Withdraw After Amendment. Notwithstanding Section 6.1.1, a
Party may withdraw its membership in the Authority following an
amendment to this Agreement adopted by the Policy 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
shall not be subject to the six-month advanced notice provided in Section
1/20/17 as amended 12/5/18 Page 20
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, the Authority must provide to the Parties the report
from the electrical utility consultant retained by the Authority that
compares the total estimated electrical rates that the Authority 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. If the report provides that the Authority is unable to
provide total electrical rates, as part of its baseline offering, to the
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 after an affirmative vote of the Party’s governing board,
withdraw its membership in the Authority without any financial
obligation, except those financial obligations incurred through the Party’s
share of the credit guarantee described in 5.3.4, as long as the Party
provides written notice of its intent to withdraw to the Authority Board no
more than fifteen business days after receiving the report. Costs incurred
prior to withdrawal will be calculated as a pro-rata share of start-up costs
expended to the date of the Party’s withdrawal, and it shall be the
responsibility of the withdrawing Party to pay its share of said costs if
they have a material/adverse impact on remaining Authority members or
ratepayers.
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 the Authority shall
1/20/17 as amended 12/5/18 Page 21
execute and deliver all further instruments and documents and take any
further action that may be reasonably necessary, as determined by the
Board, to effectuate the orderly withdrawal of such Party from
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
the Policy Board as provided in Section 3.7.1. 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 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
the Party membership or participation in the CCA Program through the date of its
withdrawal or involuntary termination, it being agreed that the Party shall not be
responsible for any 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 the Authority to serve the Party’s
load. With respect to such financial obligations, upon notice by a Party that it wishes to
1/20/17 as amended 12/5/18 Page 22
withdraw from the CCA Program, the Authority 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. The Authority may withhold funds otherwise owing to the Party
or may require the Party to deposit sufficient funds with the Authority, as reasonably
determined by the Authority and approved by a vote of the Policy Board, to cover the
Party’s financial obligations for the costs described above. Any amount of the Party’s
funds held on deposit with the Authority above that which is required to pay any financial
obligations shall be returned to the Party. 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 the Authority 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.
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ARTICLE 7: MISCELLANEOUS PROVISIONS
7.1. Dispute Resolution. The Parties and the Authority 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 Authority. The
costs of any such mediation shall be shared equally among the Parties participating in the
mediation.
7.2. Liability of Directors, Officers, and Employees. The Directors, officers, and
employees of the Authority shall use ordinary care and reasonable diligence in the
exercise of their powers and in the performance of their duties pursuant to this
Agreement. No current or former Director, officer, or employee will be responsible for
any act or omission by another Director, officer, or employee. The Authority shall
defend, indemnify and hold harmless the individual current and former Directors,
officers, and employees for any acts or omissions in the scope of their employment or
duties in the manner provided by Government Code Sections 995 et seq. Nothing in this
section shall be construed to limit the defenses available under the law, to the Parties, the
Authority, or its Directors, officers, or employees.
7.3. Indemnification of Parties. The Authority shall acquire such insurance coverage as
is necessary to protect the interests of the Authority and the Parties. The Authority shall
defend, indemnify, and hold harmless the Parties and each of their respective Boards of
Supervisors or City Councils, officers, agents and employees, from any and all claims,
losses, damages, costs, injuries, and liabilities of every kind arising directly or indirectly
from the conduct, activities, operations, acts, and omissions of the Authority under this
Agreement.
7.4. Amendment of this Agreement. This Agreement may not be amended except by a
written amendment approved by a vote of Policy Board members as provided in Section
3.7.1. The Authority shall provide written notice to all Parties of proposed amendments to
1/20/17 as amended 12/5/18 Page 24
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.
7.5. 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 the Authority, 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 the Authority or the Parties under this Agreement.
7.6. 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 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.
7.7. 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.
7.8. 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.
1/20/17 as amended 12/5/18 Page 25
7.9. 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 mail, 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 the Authority or Party, as the
case may be, or such other person designated in writing by the Authority or Party.
Notices given to one Party shall be copied to all other Parties. Notices given to the
Authority shall be copied to all Parties.
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Exhibit A
Definitions
“Act” means the Joint Exercise of Powers Act of the State of California (Government
Code Section 6500 et seq.)
“Administrative Services Agreement” means an agreement or agreements entered into
after the Effective Date by the Authority with an entity that will perform tasks necessary
for planning, implementing, operating and administering the CCA Program or any other
energy programs adopted by the Authority.
“Agreement” means this Joint Powers Agreement.
“Annual Energy Use” has the meaning given in Section 3.7.1.
“Authority” means the Monterey Bay Community Power Authority.
“Authority Document(s)” means document(s) duly adopted by one or both Boards by
resolution or motion implementing the powers, functions, and activities of the Authority,
including but not limited to the Operating Rules and Regulations, the annual budget, and
plans and policies.
“Board” means the Policy Board of Directors of the Authority and/or the Operations
Board of Directors of the Authority unless one or the other is specified in this Agreement.
“CCA” or “Community Choice Aggregation” means an electric service option available
to cities and counties pursuant to Public Utilities Code Section 366.2.
“CCA Program” means the Authority’s program relating to CCA that is principally
described in this Agreement.
“Director” means a member of the Policy Board of Directors or Operations Board of
Directors representing a Party.
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“Effective Date” means the date that this Agreement is executed by at least three Initial
Participants from the Counties of Monterey, Santa Cruz, and San Benito and the
municipalities within those counties, as further described in Section 2.1.
“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.
“Initial Costs” means all costs incurred by the County of Santa Cruz and/or Authority
relating to the establishment and initial operation of the Authority, such as the hiring of a
Chief Executive Officer and any administrative staff, and any required accounting,
administrative, technical, or legal services in support of the Authority’s initial activities
or in support of the negotiation, preparation, and approval of one or more Administrative
Services Agreements.
“Initial Participants” means those initial founding JPA members whose jurisdictions
pass a CCA ordinance, whose Board seats will be allocated on a one jurisdiction, one seat
basis (in addition to one seat for San Benito County) until such time as the number of
member jurisdictions exceeds eleven, as described in Section 3.1.4.
“Operating Rules and Regulations” means the rules, regulations, policies, bylaws and
procedures governing the operation of the Authority.
“Operations Board” means the board composed of City Managers and CAOs
representing their respective jurisdictions as provided in section 3.1.4 who will provide
oversight and support to the Chief Executive Officer on matters pertaining to the
provision of electrical service to customers in the region, focusing on the routine, day-to-
day operations of the Authority, as further set forth in section 3.3.
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“Parties” means, collectively, the signatories to this Agreement that have satisfied the
conditions in Sections 2.1 or 4.1.1 such that it is considered a member of the Authority.
“Party” means singularly, a signatory to this Agreement that has satisfied the conditions
in Sections 2.1 or 4.1.1 such that it is considered a member of the Authority.
“Policy Board” means the board composed of elected officials representing their
respective jurisdictions as provided in section 3.1.4 who will provide guidance/approval
in the areas of strategic planning and goal setting, passage of Authority budget and
customer rates, large capital expenditures outside the typical power procurement required
to provide electrical service, and such other functions as set forth in section 3.3.
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Exhibit B
Monterey Bay Community Power Authority of Monterey, Santa Cruz, and San
Benito Counties, and Certain Cities in San Luis Obispo County
List of Parties
County of Santa Cruz
City of Santa Cruz
City of Watsonville
City of Capitola
City of Scotts Valley
County of Monterey
City of Salinas
City of Monterey
City of Pacific Grove
City of Carmel
City of Seaside
City of Marina
Sand City
Soledad
Greenfield
Gonzales
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County of San Benito
City of Hollister
City of San Juan Bautista
City of Morro Bay
City of San Luis Obispo
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Exhibit C
Regional Allocation
Board seats in the Monterey Bay Community Power Authority will be allocated as
follows:
i. One seat for Santa Cruz County;
ii. One seat for Monterey County;
iii. One seat for San Benito County;
iv. One seat for the City of Santa Cruz;
v. One seat for the City of Salinas;
vi. One seat for the City of Watsonville;
vii. One shared seat for remaining Santa Cruz cities including Capitola and Scotts
Valley selected by the City Selection Committee;
viii. One shared seat for Monterey Peninsula cities including Monterey, Pacific
Grove, and Carmel selected by the City Selection Committee;
ix. One shared seat for Monterey Coastal cities including Marina, Seaside, and Sand
City selected by the City Selection Committee;
x. One shared seat for Salinas Valley cities including Greenfield, Soledad,
Gonzales selected by the City Selection Committee;
xi. One shared seat for San Benito County cities including Hollister and San Juan
Bautista selected by the City Selection Committee; and
xii. One shared seat for the Cities of San Luis Obispo and Morro Bay selected by the
agreement of these two cities.
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