Marin Energ
y
Authority
-
Joint Powers Agreement
-
Effective
December 19, 2008
As amended by Amendment No. 1 dated December 3, 2009
As further amended by Amendment No. 2 dated March 4, 2010
As further amended by Amendment No. 3 dated May 6, 2010
As
further amended by Amendment No. 4 dated December 1, 2011
As further amended by Amendment No. 5 dated July 5, 2012
As further amended by Amendment No. 6 dated September 5, 2013
As further amended by Amendment No. 7 dated December 5, 2013
As further amended
by Amendment No. 8 dated September 4, 2014
As further amended by Amendment No. 9 dated December 4, 2014
As further amended by Amendment No. 10 dated April 21, 2016
As further ame
nded by Amendment No. 11 dated
May
19 , 2016
As further amended by Amendment No. 12 dated
July 20, 2017
As further amended by Amend
m
ent No. 13 dated October 18, 2018
As further
amended by Amendment No. 14 dated November 21, 2019
As further amended by Amendment No. 15 dated November 19, 2020
Among
t
he Following Parties:
City of American Canyon
City of Belvedere
City of Benicia
City of Calistoga
City of Concord
Town of Corte Madera
Town of Danville
City of El Cerrito
Town of Fairfax
City of Fairfield
City of Lafayette
City of Larkspur
City of
Martinez
Town of Moraga
City of Mill Valley
City of Napa
City of Novato
City of Oakley
City of Pinole
ATTACHMENT 1
City of Pittsburg
City of Pleasant Hill
City of Richmond
Town of Ross
Town of San Anselmo
City of San Pablo
City of San Rafael
City of San Ramon
City of S
ausalito
City of St. Helena
Town of Tiburon
City of Vallejo
City of Walnut Creek
Town of Yountville
County of Contra Costa
County of Marin
County of Napa
County of Solano
MARIN ENERGY AUTHORITY
JOINT POWERS AGREEMENT
This
Joint Powers
Agreement
(“Agreement”), effective as of
December 19,
2008
, 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 a
mong the parties set forth in Exhibit B (“Parties”). The term “Parties” shall also include an incorporated municipality or county added to this Agreement in accordance with Section 3.1.
RECITALS
1. The Parties are either incorporated municipalities or count ies sharing various
powers under California law, including but not limited to the power to purchase, supply, and aggregate electricity for themselves and their inhabitants.
2. In 2006, the State Legislature adopted AB 32, the Global Warming Solutions Act, wh
ich mandates a reduction in greenhouse gas emissions in 2020 to 1990 levels.
The California Air Resources Board is promulgating regulations to implement AB 32 which will require local government to develop programs to reduce greenhouse emissions.
3. The purp
oses for the Initial Participants (as such term is defined in Section 2.2 below) entering into this Agreement include addressing climate change by reducing energy related greenhouse gas emissions and securing energy supply and price stability, energy effic
iencies and local economic benefits. 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 and wind energy production.
4. The Parti
es desire to establish a separate public agency, known as the Marin Energy Authority (“Authority”), under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) in order to collectively
study, promote, develop, conduct, operate, and
manage energy programs.
5. The Initial Participants have each adopted an ordinance electing to implement through the Authority Community Choice Aggregation, an electric service enterprise agency available to citi
es and counties pursuant to California Public
Utilities Code Section 366.2 (“CCA Program”). The first priority of the Authority will be the consideration of those actions necessary to implement the CCA Program. Regardless of whether or not Program Agreemen
t 1 is approved and the
CCA Program becomes operational, the parties intend for the Authority to continue to study, promote, develop, conduct, operate and manage other energy programs.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, c ovenants, and
conditions hereinafter set forth, it is agreed by and among the Parties as follows:
ARTICLE 1
CONTRACT DOCUMENTS
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
1.3 Revision of Exhibits
. The Parties agree that Exhibits B, C and D to this
Agreement describe certain administrative matters that may be revised upon the approval of the Board, without such revision constituting an
amendment to this
Agreement, as described
in Section 8.
4 . The
Authority shall provide written
notice to the Parties of the revision of any such exhibit.
ARTICLE 2
FORMATION OF MARIN ENERGY AUTHORITY
2.1 Effective Date and Term
. This Agreement shall bec
ome effective and Marin
Energy Authority shall exist as a separate public agency on the date this Agreement is executed by at least two Initial Participants after the adoption of the ordinances required by Public Utilities Code Section 366.2(c)(10). The Au thority
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 7.4, subject to the rights of the Parties to with
draw from the Authority.
2.2 Initial Participants
. During the first 180 days after the Effective Date, all other Initial Participants may become a Party by executing this Agreement and delivering an executed copy of this Agreement and a copy of the adopt ed
ordinance required by Public Utilities Code Section 366.2(c)(10) to the Authority.
Additional conditions, described in Section 3.1, may apply (i) to either an incorporated municipality or county desiring to become a Party and is not an Initial Participa
nt and (ii) to Initial Participants that have not executed and delivered this Agreement within the time period described above.
2.3 Formation
.
There is formed as of the Effective Date a public agency named the Marin Energy Authority. Pursuant to Section
s 6506 and 6507 of the Act, the
Authority is a public agency separate from the Parties. The debts, liabilities or obligations of the Authority shall not be debts, liabilities or obligations of the individual Parties unless the governing board of a Party a grees 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 8.4 of this Agreement, this Section 2.3 may not be amended unless such amendment is approved by the governing board of each Party
.
2.4 Purpose
. The purpose of this Agreement is to establish an independent public agency in order to exercise powers common to each Party to study, promote, develop, conduct, operate, and manage energy and energy -
related climate change
programs, and to exercis
e 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 as a
group in the CCA Program, as further
described in Section 5.1. The Parties intend that subsequent agreements shall define the terms and conditions associated with the actual implementation of the CCA Program and any other energy programs approved by the A uthority.
2.5 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 p
rovisions of this Agreement and fulfill its purposes, including, but not limited to, each of the following:
2.5.1 make and enter into contracts;
2.5.2 employ agents and employees, including but not limited to an Executive Director;
2.5.3 acquire, contract, manage, maintain, and operate any buildings, works or improvements;
2.5.4 acquire by eminent domain, or otherwise, except as limited under Section 6508 of the Act, and to hold or dispose of any property;
2.5.5 lease any property;
2.5. 6
sue and be sued in its own name;
2.5.7 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 Section 53850 et seq. and authority unde r the
Act
;
2.5.8 issue revenue bonds and other forms of indebtedness;
2.5.9 apply for, accept, and receive all licenses, permits, grants, loans or other aids from any federal, state or local public agency;
2.5.10 submit documentation and notices, regist
er, and comply with orders,
tariffs and agreements for the establishment and implementation of the CCA Program and other energy programs;
2.5.11 adopt rules, regulations, policies, bylaws and procedures governing the operation of the Authority (“Operating
Rules and Regulations”); and
2.5.12 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 s
upply and the provision of retail and regulatory support services.
2.6 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 C
ounty of Marin.
2.7 Compliance with Local Zoning and Building Laws
.
Notwithstanding any other
provisions of this Agreement or state law, any facilities, buildings or structures located, constructed or caused to be constructed by the Authority within the territory of the Authority shall comply with
the General Plan,
zoning and building
laws of the local jurisdiction within which the facilities, buildings or structures are constructed.
ARTICLE 3
AUTHORITY PARTICIPATION
3.1 Addition of Parties
. Subject to
Section 2.2, relating to certain rights of Initial
Participants, other incorporated municipalities and counties may become Parties upon (a) the adoption of a resolution by the governing body of such incorporated municipality or such county requesting that
the incorporated municipality or
county, as the case may be, become a member of the Authority, (b) the adoption, by an affirmative vote of the Board satisfying the requirements described in Section 4.9.1, of a resolution authorizing membership of the addi tional
incorporated municipality or county, specifying the membership payment, if any, to be made by the additional incorporated municipality or county to reflect its pro rata share of organizational, planning and other pre
-
existing expenditures, and
descr
ibing additional conditions, if any, associated with membership, (c) the adoption of an ordinance required by Public Utilities Code Section 366.2(c)(10) and execution of this Agreement and other necessary program agreements by the incorporated municipality
or county, (d) payment of the membership payment, if
any, and (e) satisfaction of any conditions established by the Board.
Notwithstanding the foregoing, in the event the Authority decides to not implement a CCA Program, the requirement that an additiona l party adopt the
ordinance required by Public Utilities Code Section 366.2(c)(10) shall not apply.
Under such circumstance, the Board resolution authorizing membership of an additional incorporated municipality or county shall be adopted in accordance wi
th the voting requirements of Section 4.10.
3.2 Continuing Participatio
n
. The Parties acknowledge that membership in the
Authority may change by the addition and/or withdrawal or termination of Parties.
The Parties agree to participate with such other
Parties as may later be added, as
described in Section 3.1. The Parties also agree that the withdrawal or termination of a Party shall not affect this Agreement or the remaining Parties’ continuing obligations under this Agreement.
ARTICLE 4
GOVERNANCE AND INTERNAL ORGANIZATION
4.1 Board of Directors
. The governing body of the Authority shall be a Board of Directors (“Board”) consisting of one director for each Party appointed in accordance with Section 4.2.
4.2 Appointment and
Removal of Directors
. The Directors shall be appointed and
may be removed as follows:
4.2.1 The governing body of each Party shall appoint and designate in writing one regular Director who shall be authorized to act for and on behalf of the Party on mat
ters within the powers of the Authority. The governing body of each Party also shall appoint and designate in writing one alternate Director who may vote on matters when the regular Director is absent from a Board meeting. The person appointed and designat ed as the
Director or the alternate Director shall be a member of the governing body of the Party.
As an alternative to appointing its own Director and alternate Director, the governing body of any Party may elect to designate another Party within the same
county (the “designated Party”) to represent it on
the Board with the Director and alternate Director from the designated Party (the “consolidated Parties”). Notwithstanding any provision in this Agreement to the contrary, in the case of such an election by one or more
Parties in the same county, the designated Party shall have the combined votes and voting shares of the consolidated Parties and shall vote on behalf of the consolidated Parties. The governing body of a Party may revoke its designation of a
nother Party to vote on its behalf at any time. Neither an election by a Party to designate another Party to vote on its behalf or a revocation of this election shall be effective unless provided in a written notice to the Authority.
4.2.2 The Operati
ng Rules and Regulations, to be developed and approved by the Board in accordance with Section 2.5.11, shall specify the reasons for and process associated with the removal of an individual Director for cause. Notwithstanding the foregoing, no Party shall
be deprived of its
right to seat a Director on the Board and any such Party for which its
Director and/or alternate Director has been removed may appoint a replacement.
4.3 Terms of Office
. Each Director shall serve at the pleasure of the governing body
of the Party that the Director represents, and may be removed as Director by such governing body at any time. If at any time a vacancy occurs on the Board, a replacement shall be appointed to fill the position of the previous Director in accordance with t
he provisions of Section 4.2 within 90 days of the date that such position becomes vacant.
4.4 Quorum
. A majority of the Directors shall constitute a quorum, except that less than a quorum may adjourn from time to time in accordance with law.
4.5 Powers
and Function of the Board
. The Board shall conduct or authorize to be
conducted all business and activities of the Authority, consistent with this Agreement, the Authority Documents, the Operating Rules and Regulations, and applicable law.
4.6 Executive Com
mittee
. The Board may establish an executive committee
consisting of a smaller number of Directors. The Board may delegate to the executive committee such authority as the Board might otherwise exercise, subject to limitations placed on the Board’s author
ity to delegate certain essential
functions, as described in the Operating Rules and Regulations. The Board may not delegate to the Executive Committee or any other committee its authority under Section 2.5.11 to adopt and amend the Operating Rules and Re gulations.
4.7 Commissions, Boards and Committees
. The Board may establish any advisory
commissions, boards and committees as the Board deems appropriate to assist the Board in carrying out its functions and implementing the CCA Program, other energy pro
grams and the provisions of this Agreement.
4.8 Director Compensation
. Compensation for work performed by Directors on
behalf of the Authority shall be borne by the Party that appointed the Director.
The Board, however, may adopt by resolution a
policy relating to the
reimbursement of expenses incurred by Directors.
4.9 Board Voting Related to the CCA Program
.
4.9.1. To be effective, on all matters specifically related to the CCA Program, a vote of the Board shall consist of the following: (1) a majority of all
Directors shall vote in the affirmative or such higher voting percentage expressly set forth in Sections 7.2
and 8.
4 (the
“percentage vote”) and (2)
the corresponding voting shares (as described in Section 4.9.2 and Exhibit D) of all such D
irectors voting in the affirmative shall exceed 50%, or such other higher voting shares percentage expressly set forth in Sections
7.2 and 8.
4 (the
“percentage voting shares”), provided that, in instances in which such other higher voting share percentage
would result in any one
Director having a voting share that equals or exceeds that which is necessary to disapprove the matter being voted on by the Board, at least one other Director shall be required to vote in the negative in order to disapprove such m
atter.
4.9.2. Unless otherwise stated herein, voting shares of the Directors shall be determined by combining the following: (1) an equal voting share for each Director determined in accordance with the formula detailed in Section
4.9.2.1, below; and (2)
an additional voting share determined in
accordance with the formula detailed in Section 4.9.2.2, below.
4.9.2.1 Pro Rata Voting Share
. Each Director shall have an equal voting
share as determined by the following formula: (1/total number of Directors)
multiplied by 50, and
4.9.2.2 Annual Energy Use Voting Share
. Each Director shall have an
additional voting share as determined by the following formula:
(Annual Energy Use/Total Annual Energy) multiplied by 50, where (a) “Annual Energy Use” means, (i)
with respect to the first 5 years
following the Effective Date, the annual electricity usage, expressed in kilowatt hours (“kWhs”), within the Party’s respective jurisdiction and (ii) with respect to the period after the fifth anniversary of the
Effect
ive Date, the annual electricity usage, expressed in kWhs, of accounts within a Party’s respective jurisdiction
, and any additional
jurisdictions which they represent,
that are served by the Authority
and (b) “Total Annual Energy” means the sum of all Part ies’ Annual
Energy Use. The initial values for Annual Energy use are designated in Exhibit C, and shall be adjusted annually as soon as reasonably practicable after January 1, but no later than March 1 of each year
4.9.2.3 The voting shares are set forth in Exhib
it D. Exhibit D may be
updated to reflect revised annual energy use amounts and any changes in the parties to the Agreement without amending the Agreement provided that the Board is provided a copy of the updated Exhibit D
.
4.10 Board Voting on
General Administrative Matters and Programs Not
Involving CCA
.
Except as otherwise provided by this Agreement or the
Operating Rules and Regulations, each member shall have one vote on general administrative matters, including but not limited to the adopt ion and amendment
of the Operating Rules and Regulations, and energy programs not involv ing CCA.
Action on these items
shall be determined by a majority vote of the quorum
present and voting on the item or such higher voting percentage expressly set forth
in Sections 7.2 and 8.
4 .
4.11 Board Voting on CCA Programs Not Involving CCA That Require Financial Contributions
.
The approval of any program or other activity not involving CCA that requires financial contributions by individual Parties shall be appro ved
only by a majority vote of the full membership of the Board subject to the right of any Party who votes against the program or activity to opt -
out of such program or
activity pursuant to this section. The Board shall provide at least 45 days prior wri
tten notice to each Party before it considers the program or activity for adoption at a Board meeting. Such notice shall be provided to the governing body and the chief administrative officer, city manager or town manager of each Party.
The Board also sh
all provide written notice of such program or activity adoption to the above
-
described officials of each Party within 5 days after the Board adopts the program or activity. Any Party voting against the approval of a program or other activity of the Author
ity requiring financial contributions by individual
Parties may elect to opt
-
out of participation in such program or activity by
providing written notice of this election to the Board within 30 days after the program or activity is approved by the Board.
Upon timely exercising its opt
-
out
election, a Party shall not have any financial obligation or any liability whatsoever for the conduct or operation of such program or activity .
4.12 Meetings and Special Meetings of the Board
. The Board shall hold at lea
st four
regular meetings per year, but the Board may provide for the holding of regular meetings at more frequent intervals. The date, hour and place of each regular meeting shall be fixed by resolution or ordinance of the Board. Regular meetings may be ad
journed to another meeting time. Special meetings of the Board may be called in accordance with the provisions of California Government Code Section 54956. Directors may participate in meetings telephonically, with full voting rights, only to the extent p
ermitted by law. All meetings of the Board shall be
conducted in accordance with the provisions of the Ralph M. Brown Act (California Government Code Section 54950 et seq.).
4.13 Selection of Board Officers
.
4.13 .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 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 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 form the Authority pursuant to the provisions of this Agreement.
4.13 .2
Secretary
. The Board shall appoint a Secretary, who need
not be a
member of the Board, who shall be responsible for keeping the minutes of
all meetings of the Board and all other official records of the Authority.
4.13 .3
Treasurer and Auditor
. The Board shall appoint a qualified person to
act as the Treasure
r and a qualified person to act as the Auditor, neither of whom needs to be a 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
act as the depositary of the Authority and have
custody of all the money of the Authority, from whatever source, and as such, shall have all of the duties and responsibilities specified in Section 6505.5 of the Act. The Board may require the Treasurer and/ or Auditor to
file with the Authority an official bond in an amount to be fixed by the Board, and if so requested the Authority shall pay the cost of premiums associated with the bond. 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 Articl e 6.
4.14 Administrative Services Provider
.
The Board 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 a written agreement between the Authority and the appointed administrative services provider or providers that will be known as an Administrative Services Agreement. The Administrative Services Agreement sha
ll 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. T he
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 discretio
n of the Authority to hire its own employees to administer the CCA Program or any other program.
ARTICLE 5
IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
5.1 Preliminary Implementation of the CCA Program.
5.1.1 Enabling Ordinance
. Except as
otherwise provided by Section 3.1, prior
to the execution of this Agreement, each Party shall adopt an ordinance in accordance with Public Utilities Code Section 366.2(c)(10) for the purpose of specifying that the Party intends to implement a CCA Program b y and
through its participation in the Authority.
5.1.2 Implementation Plan
. The Authority shall cause to be prepared an
Implementation Plan meeting the requirements of Public Utilities Code Section 366.2 and any applicable Public Utilities Commission r egulations
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 4.9.
5.1.3 Effect of Vote On Re
quired Implementation Action
. In the event that
two or more Parties vote to approve Program Agreement 1 or any earlier action required for the implementation of the CCA Program (“Required Implementation Action”), but such vote is insufficient to approve t he
Required Implementation Action under Section 4.9, the following will occur:
5.1.3.1 The Parties voting against the Required Implementation Action shall no longer be a Party to this Agreement and this Agreement shall be terminated, without further not ice,
with respect to each of the Parties voting against the
Required Implementation Action at the time this vote is final. The Board may take a provisional vote on a
Required
Implementation Action in order to initially
determine the position of the Partie
s on the Required
Implementation Action. A vote, specifically stated in the record of the Board meeting to be a provisional vote, shall not be considered a final vote with the consequences
stated above. A Party who is terminated from this
Agreement pursu
ant to this section shall be considered the
same as a Party that voluntarily withdrew from the
Agreement under Section 7.1.1.1.
5.1.3.2 After
the termination of any Parties pursuant to Section
5.1. 3
.1, the
remaining Parties to this Agreement shall be
o
nly the Parties who voted in favor of the Required
Implementation Action.
5.1.4 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.
5. 2
Authority Documents
. The Parties acknowledge and agree that the affairs of the Authority will be implemented through various documents duly adopted by the Board through Board resolution, including but not necessarily limited to the Operating Rules and R
egulations, the annual budget, and specified plans and
policies defined as the Authority Documents by this Agreement. The Parties agree to abide by and comply with the terms and conditions of all such Authority Documents that may be adopted by the Board, s
ubject to the Parties’ right to
withdraw from the Authority as described in Article 7.
ARTICLE 6
FINANCIAL PROVISIONS
6.1 Fiscal Year
. The Authority’s fiscal year shall be 12 months commencing April
1 and ending
March
3 1
. The fiscal year may be change
d by Board resolution.
6.2 Depository
.
6.2.1 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.
6.2.2 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 rea sonable times.
The Board 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.
6.2.3 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 payment
s by other means for claims or
disbursements not within an applicable budget only upon the prior approval of the Board.
6.3 Budget and Recovery Costs
.
6.3.1 Budget
. The initial budget shall be approved by the Board. The Board may revise the budget fro
m time to time through an Authority Document
as may be reasonably necessary to address contingencies and unexpected
expenses. All subsequent budgets of the Authority shall be prepared and approved by the Board in accordance with the Operating Rules and Re
gulations.
6.3.2 County
Funding of Initial Costs
.
The County of Marin shall fund the
Initial Costs of the Authority in implementing the CCA Program in an amount not to exceed $500,000 unless a larger amount of funding is approved by the Board of Supervis
ors of the County
.
This funding shall
be paid by the County at the times and in the amounts required by the Authority.
In the event that the CCA Program becomes operational, these Initial Costs paid by the County of Marin shall be included in the custome r
charges for electric services as provided by Section 6.3. 4 to the extent
permitted by law, and the County of Marin shall be reimbursed from the payment of such charges by customers of the Authority. The Authority may establish a reasonable time period o
ver which such costs are
recovered. In the event that the CCA Program does not become operational, the County of Marin shall not be entitled to any reimbursement of the Initial Costs it has paid from the Authority or any Party.
6.3. 3
CCA Program Costs
.
The Parties desire that, to the extent reasonably
practicable, all costs incurred by the Authority that are directly or indirectly attributable to the provision of electric services under the CCA Program, including the establishment and maintenance of var ious reserve
and performance funds, shall be recovered through charges to CCA customers receiving such electric services.
6.3. 4
General Costs
. Costs that are not directly or indirectly attributable to the provision of electric services under the CCA Pr
ogram, as determined by
the Board, shall be defined as general costs. General costs shall be shared among the Parties on such basis as the Board shall determine pursuant to an Authority Document.
6.3. 5
Other Energy Program Costs
.
Costs that are directl
y or indirectly
attributable
to energy programs approved by the Authority other than the CCA Program shall be shared among the Parties on such basis as the Board shall determine pursuant to an Authority Document.
ARTICLE 7
WITHDRAWAL AND
TERMINATION
7.1 Withdrawal
.
7.1.1 General.
7.1.1.1 Prior to the Authority’s execution of Program Agreement 1, any Party may withdraw its membership in the Authority by giving no less than 30 days advance written notice of its election to do so, which
notice shall be given to the Authority and each Party.
To
permit consideration by the governing body of each Party, the
Authority shall provide a copy of the proposed Program Agreement 1 to each Party at least 90 days prior to the consideration of such a
greement by the Board.
7.1.1.2 Subsequent to the Authority’s execution of Program Agreement 1, a Party may withdraw its membership in the Authority, effective as of the beginning of the Authority’s fiscal year, by giving no less than 6 months advance w
ritten notice of its election to do so, which notice
shall be given to the Authority and each Party, and upon such other conditions as may be prescribed in Program Agreement 1.
7.1.2 Amendment
. Notwithstanding Section 7.1.1, a Party may withdraw its membership in the Authority following an amendment to this Agreement in the manner provided
b
y Section 8.4
.
7.1.3 Continuing Liability; Further Assurances
. A Party that withdraws its
membership
in the Authority may be subject to certain continuing
liabilities, as described in Section 7.3. The withdrawing Party and the Authority shall execute and deliver all further instruments and documents, and take any further action that may be reasonably nece ssary, as
determined by the Board, to effectuate the orderly withdrawal of such Party from membership in the Authority. The Operating Rules and Regulations shall prescribe the rights if any of a withdrawn Party to continue to participate in those Board di
scussions and decisions affecting
customers of the CCA Program that reside or do business within the jurisdiction of the Party.
7.2 Involuntary Termination of a Party
. This Agreement may be terminated with
respect to a Party for material non
-
compliance
with provisions of this Agreement
or the Authority Documents upon an affirmative vote of the Board in which the minimum percentage vote and percentage voting shares, as described in Section
4.9.1, shall be no less than 67%, excluding the vote and voting sh ares of the Party
subject to possible termination. Prior to any vote to terminate this Agreement with respect to a Party, written notice of the proposed termination and the reason(s) for such termination shall be delivered to the Party whose termination is
proposed at
least 30 days prior to the regular Board meeting at which such matter shall first be discussed as an agenda item. The written notice of proposed termination shall specify the particular provisions of this Agreement or the Authority Documents t
hat 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 t
ermination. A Party that has had its membership in the Authority terminated may be subject to certain continuing liabilities, as described in Section
7.3. In the event that the Authority decides to not implement the CCA Program, the minimum percentage vot
e of 67% shall be conducted in accordance with
Section 4.10 rather than Section 4.9.1.
7.3 Continuing Liability; Refund
. Upon a withdrawal or involuntary termination of
a Party, the Party shall remain responsible for any claims, demands, damages, or liab
ilities arising from the Party’s membership in the Authority through the date of its withdrawal or involuntary termination, it being agreed that the Party shall not be responsible for any claims, demands, damages, or liabilities arising after the date of t
he Party’s withdrawal or involuntary termination. In addition, such Party also shall be responsible for any costs or obligations associated with the Party’s participation in any program in accordance with the provisions of any agreements relating to such p
rogram provided such costs or obligations were
incurred prior to the withdrawal of the Party. The Authority may withhold funds otherwise owing to the Party or may require the Party to deposit sufficient funds with the Authority, as reasonably determined by
the Authority, to cover the
Party’s liability for the costs described above. Any amount of the Party’s funds held on deposit with the Authority above that which is required to pay any liabilities or obligations shall be returned to the Party.
7.4 Mutual
Termination
. This Agreement may be terminated by mutual agreement of all the Parties; provided, however, the foregoing shall not be construed as limiting the rights of a Party to withdraw its membership in the Authority, and thus terminate this Agreement
with respect to such withdrawing Party, as
described in Section 7.1.
7.5 Disposition of Property upon Termination of Authority . Upon termination of
this Agreement as to all Parties, 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.
ARTICLE 8
MI
SCELLANEOUS PROVISIONS
8.1 Dispute Resolution
. The Parties and the Authority shall make reasonable efforts to settle all disputes arising out of or in connection with this Agreement. Should
such efforts to settle a dispute, after reasonable efforts, fail , the dispute shall be
settled by binding arbitration in accordance with policies and procedures established by the Board.
8.2 Liability of Directors, Officers, and Employees
. The Directors, officers, and
employees of the Authority shall use ordinary car
e 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 e mployee. The
Authority shall defend, indemnify and hold harmless the individual current and former Directors, officers, and employees for any acts or omissions in the scope of their employment or duties in the manner provided by Government Code Section 995
et seq. Nothing in this section shall be construed to limit the defenses available under the law, to the Parties, the Authority, or its Directors, officers, or employees.
8.3 Indemnification
of Parties
.
The Authority shall acquire such insurance coverag
e
as is necessary to protect the interests of the Authority, the Parties and the public.
The Authority shall defend, indemnify and hold harmless the Parties and each of their respective Board or Council members, officers, agents and employees, from any an
d 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.
8. 4
Amendment of this Agreement
. This
Agreement may be amended by an
affirmative vote of the Board in which the minimum percentage vote and percentage voting shares, as described in Section 4.9.1, shall be no less than 67%.
The Authority shall provide written notice to all Parties of amendment s to this
Agreement, including the effective date of such amendments. A Party shall be deemed to have withdrawn its membership in the Authority effective immediately upon the vote of the Board approving an amendment to this Agreement if the Director repres
enting such Party has provided notice to the other Directors immediately preceding the Board’s vote of the Party’s intention to withdraw its membership in the Authority should the amendment be approved by the Board.
As described in Section 7.3, a Party tha
t withdraws its membership in the
Authority in accordance with the above
-
described procedure may be subject to
continuing liabilities incurred prior to the Party’s withdrawal. In the event that the Authority decides to not implement the CCA Program, the m inimum
percentage vote of 67% shall be conducted in accordance with Section 4.10 rather than Section 4.9.1.
8.5 Assignment
. Except as otherwise expressly provided in this Agreement, the rights and duties of the Parties may not be assigned or delegated wi thout the
advance written consent of all of the other Parties, and any attempt to assign or delegate such rights or duties in c
ontravention of
this Section 8.5
shall be null and
void. This Agreement shall inure to the benefit of, and be binding upon, the
s
uccessors and assigns
of the Parties. This Section 8.5
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 o
f 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.
8.6 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 prov
ision shall be deemed
reformed so as to be lawful, valid and enforced to the maximum extent possible.
8. 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.
8. 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 f
orce 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 ma
y be attached to another counterpart of
this Agreement identical in form hereto but having attached to it one or more signature pages.
8. 9
Parties to be Served Notice
. Any notice authorized or required to be given
pursuant to this Agreement shall be vali
dly 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 sha ll be copied
to all Parties.
ARTICLE 9
SIGNATURE
IN WITNESS WHEREOF, the parties hereto have executed this Joint Powers Agreement
establishing Marin Clean Energy
(formerly, Marin Energy Authority)
By:
Name:
Title
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Party: City of Vallejo
Exhibit A
To the
Joint Powers Agreement
Marin Energy Authority
-
Definitions
-
“AB 117” means Assembly Bill 117 (Stat. 2002, ch.
838, codified at Public
Utilities Code Section 366.2), which created CCA.
“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 agree ments 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 4.9.2.2.
“Authority” means the Marin Energy Authority.
“Authority Document(s)” means document(s) duly adopted by the Board by resolution or motion implementing the pow
ers, 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 Board of Directors of the Authority.
“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 Sections 2.4 and 5.1.
“Director” means a m
ember of the Board of Directors representing a Party.
“Effective Date” means the date on which this Agreement shall become effective and the Marin Energy Authority shall exist as a separate public agency, as further described in Section 2.1.
“Implementation Plan” means the plan generally described in Section 5.1.2 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 Authority relating to the establishment and initial operation of the Authority, such as the hiring of an Executive Director and any administrative staff, any required accounting, administrative, te chnical
and 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 Provider Agreements and Program Agreement 1. Administrative and operational costs
incurred
after the approval of Program Agreement 1 shall not be considered Initial Costs.
“Initial Participants” means, for the purpose of this Agreement, the signatories to this JPA as of May 5, 2010 including City of Belvedere, Town of Fairfax, City of
Mill Valley,
Town of San Anselmo, City of San Rafael, City of Sausalito, Town of Tiburon and County of Marin.
“Operating Rules and Regulations” means the rules, regulations, policies, bylaws and procedures governing the operation of the
Authority.
“Parties” means, collectively, the signatories to this Agreement that have satisfied the conditions in Sections 2.2 or 3.2 such that it is considered a member of the Authority.
“Party” means, singularly, a signatory to this Agreement that ha s satisfied the
conditions in Sections 2.2 or 3.2 such that it is considered a member of the Authority.
“Program Agreement 1” means the agreement that the Authority will enter into with an energy service provider that will provide the electricity to be d istributed to
customers participating in the CCA Program.
“Total Annual Energy” has the meaning given in Section 4.9.2.2.
Exhibit B
To the
Joint Powers Agreement
Marin Energy Authority
-
List of
the
Parties
-
City of American Canyon
City of
Belvedere
City of Benicia
City of Calistoga
City of Concord
Town of Corte Madera
Town of Danville
City of El Cerrito
Town of Fairfax
City of Fairfield
City of Lafayette
City of Larkspur
City of Martinez
Town of Moraga
City of Mill Valley
City of Napa
City of Novato
City of Oakley
City of Pinole
City of Pittsburg
City of Pleasant Hill
City of Richmond
Town of Ross
Town of San Anselmo
City of San Pablo
City of San Rafael
City of San Ramon
City of Sausalito
St. Helena
Town of Tiburon
City of
Vallejo
City of Walnut Creek
Town of Yountville
County of Contra Costa
County of Marin
County of Napa
County of Solano
Exhibit C
Marin Clean Energy
This Exhibit C is effective as of November 19, 2020.
MCE Member Communities
-
Annual Energy
Use
-
This
Exhibit C is effective as of November 19, 2020.
MCE Member Community
kWh (2019)
City of American Canyon
76,695,933
City of Belvedere
7,577,958
City of Benicia
113,063,212
City of Calistoga
25,994,261
City of Concord
498,162,604
Town of Corte Madera
46,419,358
County of Contra Costa
673,004,355
Town of Danville
159,347,837
City of El Cerrito
57,817,586
Town of Fairfax
17,969,915
City of Fairfield*
452,596,498
City of Lafayette
94,682,154
City of Larkspur
42,611,547
City of Martinez
151,009,009
City of Mill Valley
44,571,991
County of Marin
231,346,718
Town of Moraga
43,994,965
City of Napa
306,136,179
County of Napa
299,606,262
City of Novato
184,366,404
City of Oakley
105,972,646
City of Pinole
64,070,289
City of Pittsburg
404,506,338
City of Pleasant Hill*
125,951,493
City of Richmond
374,022,160
Town of Ross
9,855,768
Town of San Anselmo
32,381,273
City of San Ramon
301,946,012
City of Saint Helena
48,784,002
City of San Pablo
63,337,637
City of San Rafael
218,232,540
City of Sausalito
32,001,734
County of Solano*
176,902,587
Town of Tiburon
29,057,049
City of Vallejo*
332,927,602
City of Walnut Creek
344,139,693
Town of Yountville
30,941,216
MCE Total Energy Use
6,222,004,783
*2019 usage data as provided by PG&E.
All other usage data reflects MCE custom
er billing records for
2019.
Exhibit D
Marin Clean Energy
-
Voting Shares
-
This Exhibit D is effective as of November 19,
2020.
MCE Member Community
kWh (2019)
Section
4.9.2.1 Section
4.9.2.2 Voting
Share
City of American Canyon
76,695,933
1.35%
0.62%
1.97%
City of Belvedere
7,577,958
1.35%
0.06%
1.41%
City of Benicia
113,063,212
1.35%
0.91%
2.26%
City of Calistoga
25,994,261
1.35%
0.21%
1.56%
City of Concord
498,162,604
1.35%
4.00%
5.35%
Town of Corte Madera
46,419,358
1.35%
0.37%
1.72%
County of Contra Costa
673,004,355
1.35%
5.41%
6.76%
Town of Danville
159,347,837
1.35%
1.28%
2.63%
City of El Cerrito
57,817,586
1.35%
0.46%
1.82%
Town of Fairfax
17,969,915
1.35%
0.14%
1.50%
City of Fairfield*
452,596,498
1.35%
3.64%
4.99%
City of Lafayette
94,682,154
1.35%
0.76%
2.11%
City of Larkspur
42,611,547
1.35%
0.34%
1.69%
City of Martinez
151,009,009
1.35%
1.21%
2.56%
City of Mill Valley
44,571,991
1.35%
0.36%
1.71%
County of Marin
231,346,718
1.35%
1.86%
3.21%
Town of Moraga
43,994,965
1.35%
0.35%
1.70%
City of Napa
306,136,179
1.35%
2.46%
3.81%
County of Napa
299,606,262
1.35%
2.41%
3.76%
City of Novato
184,366,404
1.35%
1.48%
2.83%
City of Oakley
105,972,646
1.35%
0.85%
2.20%
City of Pinole
64,070,289
1.35%
0.51%
1.87%
City of Pittsburg
404,506,338
1.35%
3.25%
4.60%
City of Pleasant Hill*
125,951,493
1.35%
1.01%
2.36%
City of Richmond
374,022,160
1.35%
3.01%
4.36%
Town of Ross
9,855,768
1.35%
0.08%
1.43%
Town of San Anselmo
32,381,273
1.35%
0.26%
1.61%
City of San Ramon
301,946,012
1.35%
2.43%
3.78%
City of Saint Helena
48,784,002
1.35%
0.39%
1.74%
City of San Pablo
63,337,637
1.35%
0.51%
1.86%
City of San Rafael
218,232,540
1.35%
1.75%
3.11%
City of Sausalito
32,001,734
1.35%
0.26%
1.61%
County of Solano*
176,902,587
1.35%
1.42%
2.77%
Town of Tiburon
29,057,049
1.35%
0.23%
1.58%
City of Vallejo*
332,927,602
1.35%
2.68%
4.03%
City of Walnut Creek
344,139,693
1.35%
2.77%
4.12%
Town of Yountville
30,941,216
1.35%
0.25%
1.60%
MCE Total Energy Use
6,222,004,783
50.00%
50.00%
100.00%
*2019 usage data as provided by PG&E.
All other usage data reflects MCE
customer billing
records for 2019.