Loading...
HomeMy WebLinkAboutItem 7.1 - 1221 East Bay Community Energy Program Page 1 of 5 STAFF REPORT CITY COUNCIL DATE: November 15, 2016 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Consideration of Community Choice Aggregation for the City of Dublin and Authorization to Form the East Bay Community Energy Authority, a Joint Powers Authority, and City of Dublin Membership in the Authority. Prepared by: Shannan Young, Environmental Coordinator EXECUTIVE SUMMARY: At the November 1, 2016 meeting, the City Council received a report from Alameda County staff and consultants on the technical findings for the Community Choice Aggregation (CCA) Program and received an update on the status of the East Bay Community Energy Authority Joint Powers Agreement. CCA would provide an alternative to PG&E supplied electric power within City of Dublin, as well as the other cities in Alameda County. The City Council will consider joining the CCA, approving of the East Bay Community Choice Energy Joint Powers Agreement (“JPA”) and introducing the related Ordinance. STAFF RECOMMENDATION: Approve the East Bay Community Energy Authority Joint Powers Agreement in order to participate in a CCA JPA for East Bay municipalities, adopt the Resolution Approving an Agreement to Participate In a Joint Powers Agency for Community Choice Aggregation Program in Alameda County, and INTRODUCE an Uncodified Ordinance Authorizing the Implementation of a Community Choice Aggregation Program. FINANCIAL IMPACT: There is no impact to the General Fund. However, if the City were to later withdraw from the JPA, the City potentially incur liability in unknown amounts. DESCRIPTION: Background Community Choice Aggregation (“CCA”) enables cities and county governments to pool the electricity demand within their jurisdictions in order to procure or generate electrical power supplies on behalf of the residents and businesses in their communities. Primary Page 2 of 5 reasons for pursuing a CCA program include: 1) the ability to achieve Climate Action Plan goals through significant reductions in greenhouse gas emissions, 2) offering customers an energy choice and competitive electrical rates, and 3) local economic development benefits including jobs creation associated with the development of local power and new energy programs in the region. The CCA procures and/or generates electricity on behalf of its customers while PG&E continues to deliver power to homes and businesses, handles customer billing, and maintains the grid. CCAs can enhance consumer choice by giving customers the right to opt out. Customers may switch back to PG&E at any time, therefore they can choose between electricity providers and gain the ability to compare rates and energy sources. In June 2014, the Alameda County Board of Supervisors voted unanimously to allocate $1.3 million to explore the creation of a CCA program, and formulated a Joint Powers Agreement (“JPA”) for the East Bay Community Energy Authority (“Authority”). On October 4, 2016, the Alameda County Board of Supervisors approved the JPA, which will, upon approval of at least three initial participating jurisdictions, establish the Authority. The JPA document is included in Attachment 1. At the November 1, 2016 City Council meeting, Supervisor Scott Haggerty along with Alameda County staff and consultants presented to City Council findings from a final Technical Feasibility Study on the proposed CCA program. City Council then directed Staff to prepare an ordinance and resolution for adoption of the JPA for City Council consideration. Operation of the Joint Powers Authority The proposed Authority would be governed by a Board of Directors, comprising one elected representative from each city and county participating in the program. Final decisions regarding the specific level of renewable energy to be procured, prioritization of local renewable energy and job development, and other governance issues will be determined by the Board of Directors, as specified in the JPA. Once the CCA Program is implemented, the Authority will enter into agreements with electric power suppliers and other service providers and, based upon those agreements, work to provide electrical power to residents and businesses at competitive rates. The Authority will have the power to enter into long term power purchase agreements, acquire property, build energy-generating facilities, and issue revenue bonds. The Joint Powers Agreement provides that all Authority Board votes are initially one -jurisdiction- one-vote, but following an affirmative vote any three representatives may request a “voting shares vote” in which case a second vote is taken weighted based on each member's energy usage. Both must pass for a particular motion to pass. (JPA, § 4.12.2.) During the first two years, the voting shares are based on total e nergy usage within the jurisdiction, and they are adjusted to reflect CCA customer annual usage thereafter. Page 3 of 5 A proposed agreement titled “East Bay Community Energy Authority - Joint Powers Agreement” was prepared by the Office of the County Counsel and has been extensively reviewed by city attorneys in Alameda County. The draft is based on similar JPA Agreements for CCA programs in the Bay Area, and it creates a legal and financial separation of the assets and liabilities of the JPA and its member agencies. The Draft JPA Agreement includes a complete set of operating principles for the participating members and the roles/responsibilities of each member. The following is a summary of the key provisions in the Agreement: a. Separate Legal Entity. The JPA Agreement establishes the East Bay Community Energy Authority as a separate legal entity; the County and the member cities assume no obligations (except in narrow circumstances provided for in the JPA Agreement) for the debts and liabilities of the Authority. b. Board of Directors. The Board of Directors of the Authority shall be made up of a representative from each member agency and an alternate director from each member agency, both of whom must be members of the Board of Supervisors or respective city councils. c. Community Advisory Committee. The JPA shall establish a community advisory committee consisting of nine members to advise the JPA Board on matters relating to the operation of the Authority. The chairperson of the advisory committee shall be a non-voting member of the Board of Directors, and the vice-chairperson of the advisory committee shall be a non-voting alternate on the Board of Directors. d. Withdrawal. The JPA agreement provides a process for member entities to withdraw and provides that, in the event of a complete withdrawal of both municipal and all constituent accounts, the member agencies will reimburse the JPA for any stranded costs incurred as a result of serving the withdrawing agency and all of its community’s customers. Potential Liabilities for the City A key concern for the City could be whether its General Fund could become responsible for the Authority’s liabilities. The JPA eliminates this general concern by insulating from liability each member party, unless such liability is expressly assumed by a Party’s governing body (i.e., City Council). The Parties may be asked to expressly assume the Authority’s debts or liabilities. Such a request may occur if the CCA issues debt for construction of generating facilities or for favorable pricing in a long-term power purchase agreement. The Authority may request that the Parties provide some form of credit support, either in the form of a guarantee or otherwise. This is because the Authority only has customer revenues to pledge; it has no assets, nor (at the outset) any credit. It may find that it can obtain better interest rates when borrowing if it requests Parties to lend their credit, or it may Page 4 of 5 find that counter parties to power purchase agreements request credit enhancements from the member agencies. While the City would not be obligated by the JPA to provide such credit enhancement or guarantees or to accept any liability, there may be a benefit to the Authority if electric rates could be lowered by member guarantees. Withdrawal from the JPA In the event the City decides to withdraw from the JPA, it could face liabilities, despite the absence of a written assumption of responsibility. Section 7.2 of the JPA provides that a withdrawing Party remains liable for those matters incurred prior to its withdrawal and that the Authority “…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.” The withdrawing Party will remain responsible for “paying its fair share of costs incurred by the Authority resulting from the Party’s withdrawal, including costs from the resale of power contracts by the Authority to serve the Party’s load and any similar costs directly attributable to the Party’s withdrawal.” However, such costs would be “limited to those contracts executed while the withdrawing Party was a member, and administrative costs associated thereto.” Furthermore, those costs would “not constitute a debt of the withdrawing Party, accruing interest, or having a maturity date.” (JPA, § 7.2.) Benefits of Joining Now Although the City could opt to join the CCA at a later date, there are some financial benefits to adopting the ordinance by the December 31, 2016 dea dline and joining as an Initial Participant. Parties seeking to join after this deadline may be required to make additional membership payments. Furthermore, the CCA is overseeing and covering costs for community outreach, marketing and customer notification. If the City were to opt to join in at a later date, the City may be requested to cover the costs for and overseeing its own community outreach activities. Timeline The County and cities that elect to participate in the East Bay Community Energy Authority must do so by approving the execution of the Joint Powers Agreement and adopting an ordinance electing to implement a CCA program. Cities electing to join the CCA must do so by adopting the ordinance by December 31, 2016. The County is expected to conduct its second reading and take final steps to formalize the JPA following consideration by the cities, in either December 2016 or January 2017. If the Authority is formed, the plan is to provide electricity to the first phase of customers by fall 2017. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None required. Page 5 of 5 ATTACHMENTS: 1. East Bay Community Energy Joint Powers Authority Agreement 2. Resolution Approving an Agreement to Participate In a Joint Powers Agency for Community Choice Aggregation Program in Alameda County 3. An Uncodified Ordinance Authorizing the Implementation of a Community Choice Aggregation Program October 4, 2016 County Approval Agreement East Bay Community Energy Authority - Joint Powers Agreement – Effective _____________ Among The Following Parties: October 4, 2016 County Approval Agreement -1- EAST BAY COMMUNITY ENERGY AUTHORITY JOINT POWERS AGREEMENT This Joint Powers Agreement (“Agreement”), effective as of _________, is made and entered into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1 (Section 6500 et seq.) of the California Government Code relating to the joint exercise of powers among the parties set forth in Exhibit A (“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 counties 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, which mandates a reduction in greenhouse gas emissions in 2020 to 1990 levels. The California Air Resources Board is promulgating regulations to implement AB 32 which will require local government to develop programs to reduce greenhouse gas emissions. 3. The purposes for the Initial Participants (as such term is defined in Section 1.1.16 below) entering into this Agreement include securing electrical energy supply for customers in participating jurisdictions, addressing climate change by reducing energy related greenhouse gas emissions, promoting electrical rate price stability, and fostering local economic benefits such as jobs creation, community energy programs and local power development. 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 State, regional and local solar and wind energy production. 4. The Parties desire to establish a separate public agency, known as the East Bay Community Energy Authority (“Authority”), under the provisions of the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) (“Act”) in order to collectively study, promote, develop, conduct, operate, and manage energy programs. 5. The Initial Participants have each adopted an ordinance electing to implement through the Authority a Community Choice Aggregation program pursuant to California Public Utilities Code Section 366.2 (“CCA Program”). The first priority of the Authority will be the consideration of those actions necessary to implement the CCA Program. 6. By establishing the Authority, the Parties seek to: (a) Provide electricity rates that are lower or competitive with those offered by PG&E for similar products; October 4, 2016 County Approval Agreement -2- (b) Offer differentiated energy options (e.g. 33% or 50% qualified renewable) for default service, and a 100% renewable content option in which customers may “opt-up” and voluntarily participate; (c) Develop an electric supply portfolio with a lower greenhouse gas (GHG) intensity than PG&E, and one that supports the achievement of the parties’ greenhouse gas reduction goals and the comparable goals of all participating jurisdictions; (d) Establish an energy portfolio that prioritizes the use and development of local renewable resources and minimizes the use of unbundled renewable energy credits; (e) Promote an energy portfolio that incorporates energy efficiency and demand response programs and has aggressive reduced consumption goals; (f) Demonstrate quantifiable economic benefits to the region (e.g. union and prevailing wage jobs, local workforce development, new energy programs, and increased local energy investments); (g) Recognize the value of workers in existing jobs that support the energy infrastructure of Alameda County and Northern California. The Authority, as a leader in the shift to a clean energy, commits to ensuring it will take steps to minimize any adverse impacts to these workers to ensure a “just transition” to the new clean energy economy; (h) Deliver clean energy programs and projects using a stable, skilled workforce through such mechanisms as project labor agreements, or other workforce programs that are cost effective, designed to avoid work stoppages, and ensure quality; (i) Promote personal and community ownership of renewable resources, spurring equitable economic development and increased resilience, especially in low income communities; (j) Provide and manage lower cost energy supplies in a manner that provides cost savings to low-income households and promotes public health in areas impacted by energy production; and (k) Create an administering agency that is financially sustainable, responsive to regional priorities, well managed, and a leader in fair and equitable treatment of employees through adopting appropriate best practices employment policies, including, but not limited to, promoting efficient consideration of petitions to unionize, and providing appropriate wages and benefits. October 4, 2016 County Approval Agreement -3- 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 CONTRACT DOCUMENTS 1.1 Definitions. Capitalized terms used in the Agreement shall have the meanings specified below, unless the context requires otherwise. 1.1.1 “AB 117” means Assembly Bill 117 (Stat. 2002, ch. 838, codified at Public Utilities Code Section 366.2), which created CCA. 1.1.2 “Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.) 1.1.3 “Agreement” means this Joint Powers Agreement. 1.1.4 “Annual Energy Use” has the meaning given in Section 1.1.23. 1.1.5 “Authority” means the East Bay Community Energy Authority established pursuant to this Joint Powers Agreement. 1.1.6 “Authority Document(s)” means document(s) duly adopted by the Board by resolution or motion implementing the powers, functions and activities of the Authority, including but not limited to the Operating Rules and Regulations, the annual budget, and plans and policies. 1.1.7 “Board” means the Board of Directors of the Authority. 1.1.8 “Community Choice Aggregation” or “CCA” means an electric service option available to cities and counties pursuant to Public Utilities Code Section 366.2. 1.1.9 “CCA Program” means the Authority’s program relating to CCA that is principally described in Sections 2.4 and 5.1. 1.1.10 “Days” shall mean calendar days unless otherwise specified by this Agreement. 1.1.11 “Director” means a member of the Board of Directors representing a Party, including an alternate Director. 1.1.12 “Effective Date” means the date on which this Agreement shall become effective and the East Bay Community Energy Authority shall exist as a separate public agency, as further described in Section 2.1. October 4, 2016 County Approval Agreement -4- 1.1.13 “Ex Officio Board Member” means a non-voting member of the Board of Directors as described in Section 4.2.2. The Ex Officio Board Member may not serve on the Executive Committee of the Board or participate in closed session meetings of the Board. 1.1.14 “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. 1.1.15 “Initial Costs” means all costs incurred by the Authority relating to the establishment and initial operation of the Authority, such as the hiring of a Chief Executive Officer and any administrative staff, any required accounting, administrative, technical and legal services in support of the Authority’s initial formation activities or in support of the negotiation, preparation and approval of power purchase agreements. The Board shall determine the termination date for Initial Costs. 1.1.16 “Initial Participants” means, for the purpose of this Agreement the County of Alameda, the Cities of Albany, Berkeley, Emeryville, Oakland, Piedmont, San Leandro, Hayward, Union City, Newark, Fremont, Dublin, Pleasanton and Livermore. 1.1.17 “Operating Rules and Regulations” means the rules, regulations, policies, bylaws and procedures governing the operation of the Authority. 1.1.18 “Parties” means, collectively, the signatories to this Agreement that have satisfied the conditions in Sections 2.2 or 3.1 such that it is considered a member of the Authority. 1.1.19 “Party” means, singularly, a signatory to this Agreement that has satisfied the conditions in Sections 2.2 or 3.1 such that it is considered a member of the Authority. 1.1.20 “Percentage Vote” means a vote taken by the Board pursuant to Section 4.12.1 that is based on each Party having one equal vote. 1.1.21 “Total Annual Energy” has the meaning given in Section 1.1.23. 1.1.22 “Voting Shares Vote” means a vote taken by the Board pursuant to Section 4.12.2 that is based on the voting shares of each Party described in Section 1.1.23 and set forth in Exhibit C to this Agreement. A Voting Shares vote cannot take place on a matter unless the matter first receives an affirmative or tie Percentage Vote in the manner required by Section 4.12.1 and three or more Directors immediately thereafter request such vote. October 4, 2016 County Approval Agreement -5- 1.1.23 “Voting Shares Formula” means the weight applied to a Voting Shares Vote and is determined by the following formula: (Annual Energy Use/Total Annual Energy) multiplied by 100, where (a) “Annual Energy Use” means (i) with respect to the first two years following the Effective Date, the annual electricity usage, expressed in kilowatt hours (“kWh”), within the Party’s respective jurisdiction and (ii) with respect to the period after the second anniversary of the Effective Date, the annual electricity usage, expressed in kWh, of accounts within a Party’s respective jurisdiction that are served by the Authority and (b) “Total Annual Energy” means the sum of all Parties’ Annual Energy Use. The initial values for Annual Energy use are designated in Exhibit B and the initial voting shares are designated in Exhibit C. Both Exhibits B and C shall be adjusted annually as soon as reasonably practicable after January 1, but no later than March 1 of each year subject to the approval of the Board. 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: List of the Parties Exhibit B: Annual Energy Use Exhibit C: Voting Shares 1.3 Revision of Exhibits. The Parties agree that Exhibits A, B and C 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 EAST BAY COMMUNITY ENERGY AUTHORITY 2.1 Effective Date and Term. This Agreement shall become effective and East Bay Community Energy Authority shall exist as a separate public agency on December 1, 2016, provided that this Agreement is executed on or prior to such date by at least three Initial Participants 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 7.3, subject to the rights of the Parties to withdraw from the Authority. October 4, 2016 County Approval Agreement -6- 2.2 Initial Participants. Until December 31, 2016, 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 adopted ordinance required by Public Utilities Code Section 366.2(c)(12) 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 that is not an Initial Participant 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 East Bay Community Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the Authority is a public agency separate from the Parties. The debts, liabilities or obligations of the Authority shall not be debts, liabilities or obligations of the individual Parties unless the governing 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 8.4 of this Agreement, this Section 2.3 may not be amended unless such amendment is approved by the governing boards of all Parties. 2.4 Purpose. The purpose of this Agreement is to establish an independent public agency in order to exercise powers common to each Party and any other powers granted to the Authority under state law to participate as a group in the CCA Program pursuant to Public Utilities Code Section 366.2(c)(12); to study, promote, develop, conduct, operate, and manage energy and energy-related climate change programs; and, to exercise all other powers necessary and incidental to accomplishing this purpose. 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 provisions of this Agreement and fulfill its purposes, including, but not limited to, each of the following: 2.5.1 to make and enter into contracts, including those relating to the purchase or sale of electrical energy or attributes thereof; 2.5.2 to employ agents and employees, including but not limited to a Chief Executive Officer and General Counsel; 2.5.3 to acquire, contract, manage, maintain, and operate any buildings, works or improvements, including electric generating facilities; 2.5.4 to acquire property by eminent domain, or otherwise, except as limited under Section 6508 of the Act, and to hold or dispose of any property; 2.5.5 to lease any property; 2.5.6 to sue and be sued in its own name; October 4, 2016 County Approval Agreement -7- 2.5.7 to incur debts, liabilities, and obligations, including but not limited to loans from private lending sources pursuant to its temporary borrowing powers such as Government Code Section 53850 et seq. and authority under the Act; 2.5.8 to form subsidiary or independent corporations or entities, if appropriate, to carry out energy supply and energy conservation programs at the lowest possible cost consistent with the Authority’s CCA Program implementation plan, risk management policies, or to take advantage of legislative or regulatory changes; 2.5.9 to issue revenue bonds and other forms of indebtedness; 2.5.10 to apply for, accept, and receive all licenses, permits, grants, loans or other assistance from any federal, state or local public agency; 2.5.11 to submit documentation and notices, register, and comply with orders, tariffs and agreements for the establishment and implementation of the CCA Program and other energy programs; 2.5.12 to adopt rules, regulations, policies, bylaws and procedures governing the operation of the Authority (“Operating Rules and Regulations”); 2.5.13 to make and enter into service, energy and any other agreements 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 2.5.14 to negotiate project labor agreements, community benefits agreements and collective bargaining agreements with the local building trades council and other interested parties. 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 City of Emeryville and any other restrictions on exercising the powers of the Authority that may be adopted by the Board. 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 and comply with the California Environmental Quality Act (“CEQA”). October 4, 2016 County Approval Agreement -8- 2.8 Compliance with the Brown Act. The Authority and its officers and employees shall comply with the provisions of the Ralph M. Brown Act, Government Code Section 54950 et seq. 2.9 Compliance with the Political Reform Act and Government Code Section 1090. The Authority and its officers and employees shall comply with the Political Reform Act (Government Code Section 81000 et seq.) and Government Code Section 1090 et seq, and shall adopt a Conflict of Interest Code pursuant to Government Code Section 87300. The Board of Directors may adopt additional conflict of interest regulations in the Operating Rules and Regulations. 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 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 a majority of all Directors of the entire Board satisfying the requirements described in Section 4.12, of a resolution authorizing membership of the additional 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 describing additional conditions, if any, associated with membership, (c) the adoption of an ordinance required by Public Utilities Code Section 366.2(c)(12) and execution of this Agreement and other necessary program agreements by the incorporated municipality or county, (d) payment of the membership fee, if any, and (e) satisfaction of any conditions established by the Board. 3.2 Continuing Participation. 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 of Directors. The Directors shall be appointed as follows: 4.2.1 The governing body of each Party shall appoint and designate in writing one regular Director who shall be authorized to act for and on behalf of the Party on matters within the powers of the Authority. The governing body of each Party also shall appoint and designate in writing one alternate Director who may vote on matters when the regular Director is absent October 4, 2016 County Approval Agreement -9- from a Board meeting. The person appointed and designated as the regular Director shall be a member of the governing body of the Party. The person appointed and designated as the alternate Director shall also be a member of the governing body of the Party. 4.2.2 The Board shall also include one non-voting ex officio member as defined in Section 1.1.13 (“Ex Officio Board Member”). The Chair of the Community Advisory Committee, as described in Section 4.9 below, shall serve as the Ex Officio Board Member. The Vice Chair of the Community Advisory Committee shall serve as an alternate Ex Officio Board Member when the regular Ex Officio Board Member is absent from a Board meeting. 4.2.3 The Operating Rules and Regulations, to be developed and approved by the Board in accordance with Section 2.5.12 may include rules regarding Directors, such as meeting attendance requirements. No Party shall be deprived of its right to seat a Director on the Board. 4.3 Terms of Office. Each regular and alternate Director shall serve at the pleasure of the governing body of the Party that the Director represents, and may be removed as Director by such governing body at any time. If at any time a vacancy occurs on the Board, a replacement shall be appointed to fill the position of the previous Director in accordance with the provisions of Section 4.2 within 90 days of the date that such position becomes vacant. 4.4 Quorum. A majority of the Directors of the entire Board shall constitute a quorum, except that less than a quorum may adjourn a meeting 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. Board approval shall be required for any of the following actions, which are defined as “Essential Functions”: 4.5.1 The issuance of bonds or any other financing even if program revenues are expected to pay for such financing. 4.5.2 The hiring of a Chief Executive Officer and General Counsel. 4.5.3 The appointment or removal of an officer. 4.5.4 The adoption of the Annual Budget. 4.5.5 The adoption of an ordinance. 4.5.6 The initiation of 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 October 4, 2016 County Approval Agreement -10- intervene in, become party to, or file comments with respect to any proceeding pending at the California Public Utilities Commission, the Federal Energy Regulatory Commission, or any other administrative agency, without approval of the Board. The Board shall adopt Operating Rules and Regulations governing the Chief Executive Officer and General Counsel’s exercise of authority under this Section 4.5.6. 4.5.7 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. 4.5.8 Termination of the CCA Program. 4.6 Executive Committee. The Board shall 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 authority to delegate certain Essential Functions, as described in Section 4.5 and the Operating Rules and Regulations. The Board may not delegate to the Executive Committee or any other committee its authority under Section 2.5.12 to adopt and amend the Operating Rules and Regulations or its Essential Functions listed in Section 4.5. After the Executive Committee meets or otherwise takes action, it shall, as soon as practicable, make a report of its activities at a meeting of the Board. 4.7 Director Compensation. Directors shall receive a stipend of $100 per meeting, as adjusted to account for inflation, as provided for in the Authority’s Operating Rules and Regulations. 4.8 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 programs and the provisions of this Agreement. The Board may establish rules, regulations, policies, bylaws or procedures to govern any such commissions, boards, or committees and shall determine whether members shall be compensated or entitled to reimbursement for expenses. 4.9 Community Advisory Committee. The Board shall establish a Community Advisory Committee consisting of nine members, none of whom may be voting members of the Board. The function of the Community Advisory Committee shall be to advise the Board of Directors on all subjects related to the operation of the CCA Program as set forth in a work plan adopted by the Board of Directors from time to time, with the exception of personnel and litigation decisions. The Community Advisory Committee is advisory only, and shall not have decision-making authority, or receive any delegation of authority from the Board of Directors. The Board shall publicize the opportunity to serve on the Community Advisory Committee, and shall appoint members of the Community Advisory Committee from those individuals expressing interest in serving, and who represent a diverse cross-section of interests, skill sets and geographic regions. Members of the Community Advisory Committee shall serve staggered four-year terms (the first term of three of the members shall be two years, and four years October 4, 2016 County Approval Agreement -11- thereafter), which may be renewed. A member of the Community Advisory Committee may be removed by the Board of Directors by majority vote. The Board of Directors shall determine whether the Community Advisory Committee members will receive a stipend and/or be entitled to reimbursement for expenses. 4.10 Chief Executive Officer. The Board of Directors shall appoint a Chief Executive Officer for the Authority, who shall be responsible for the day-to-day operation and management of the Authority and the CCA Program. The Chief Executive Officer 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 expenditure is authorized in the Authority’s approved budget, except the powers specifically set forth in Section 4.5 or those powers which by law must be exercised by the Board of Directors. The Board of Directors shall provide procedures and guidelines for the Chief Executive Officer exercising the powers of the Authority in the Operating Rules and Regulations. 4.11 General Counsel. The Board of Directors shall appoint a General Counsel for the Authority, who shall be responsible for providing legal advice to the Board of Directors and overseeing all legal work for the Authority. 4.12 Board Voting. 4.12.1 Percentage Vote. Except when a supermajority vote is expressly required by this Agreement or the Operating Rules and Regulations, action of the Board on all matters shall require an affirmative vote of a majority of all Directors on the entire Board (a “Percentage Vote” as defined in Section 1.1.20). A supermajority vote is required by this Agreement for the matters addressed by Section 8.4. When a supermajority vote is required by this Agreement or the Operating Rules and Regulations, action of the Board shall require an affirmative Percentage Vote of the specified supermajority of all Directors on the entire Board. No action can be taken by the Board without an affirmative Percentage Vote. Notwithstanding the foregoing, in the event of a tie in the Percentage Vote, an action may be approved by an affirmative “Voting Shares Vote,” as defined in Section 1.1.22, if three or more Directors immediately request such vote. 4.12.2 Voting Shares Vote. In addition to and immediately after an affirmative percentage vote, three or more Directors may request that, a vote of the voting shares shall be held (a “Voting Shares Vote” as defined in Section 1.1.22). To approve an action by a Voting Shares Vote, the corresponding voting shares (as defined in Section 1.1.23 and Exhibit C) of all Directors voting in the affirmative shall exceed 50% of the voting share of all Directors on the entire Board, or such other higher voting shares percentage expressly required by this Agreement or the Operating Rules October 4, 2016 County Approval Agreement -12- and Regulations. In the event that any one Director has a voting share that equals or exceeds that which is necessary to disapprove the matter being voted on by the Board, at least one other Director shall be required to vote in the negative in order to disapprove such matter. When a voting shares vote is held, action by the Board requires both an affirmative Percentage Vote and an affirmative Voting Shares Vote. Notwithstanding the foregoing, in the event of a tie in the Percentage Vote, an action may be approved on an affirmative Voting Shares Vote. When a supermajority vote is required by this Agreement or the Operating Rules and Regulations, the supermajority vote is subject to the Voting Share Vote provisions of this Section 4.12.2, and the specified supermajority of all Voting Shares is required for approval of the action, if the provision of this Section 4.12.2 are triggered. 4.13 Meetings and Special Meetings of the Board. The Board shall hold at least 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 adjourned to another meeting time. Special and Emergency meetings of the Board may be called in accordance with the provisions of California Government Code Section 54956 and 54956.5. Directors may participate in meetings telephonically, with full voting rights, only to the extent permitted by law. 4.14 Officers. 4.14.1 Chair and Vice Chair. At the first meeting held by the Board in each calendar year, the Directors shall elect, from among themselves, a Chair, who shall be the presiding officer of all Board meetings, and a Vice Chair, who shall serve in the absence of the Chair. The Chair and Vice Chair shall hold office for one year and serve no more than two consecutive terms, however, the total number of terms a Director may serve as Chair or Vice Chair is not limited. The office of either the Chair or Vice Chair shall be declared vacant and the Board shall make a new selection if: (a) the person serving dies, resigns, or ceases to be a member of the governing body of the Party that the person represents; (b) the Party that the person represents removes the person as its representative on the Board, or (c) the Party that he or she represents withdraws from the Authority pursuant to the provisions of this Agreement. 4.14.2 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. 4.14.3 Treasurer and Auditor. The 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 member of the Board. The same person may not simultaneously hold both the office of Treasurer and the office of the Auditor of the Authority. Unless otherwise exempted from such October 4, 2016 County Approval Agreement -13- requirement, the Authority shall cause an independent audit to be made annually 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. 4.15 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 an Administrative Services Agreement. The appointed administrative services provider may be one of the Parties. The 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. 4.16 Operational Audit. The Authority shall commission an independent agent to conduct and deliver at a public meeting of the Board an evaluation of the performance of the CCA Program relative to goals for renewable energy and carbon reductions. The Authority shall approve a budget for such evaluation and shall hire a firm or individual that has no other direct or indirect business relationship with the Authority. The evaluation shall be conducted at least once every two years. ARTICLE 5 IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS 5.1 Implementation of the CCA Program. 5.1.1 Enabling Ordinance. Prior to the execution of this Agreement, each Party shall adopt an ordinance in accordance with Public Utilities Code Section 366.2(c)(12) for the purpose of specifying that the Party intends to implement a CCA Program by and through its participation in the Authority. October 4, 2016 County Approval Agreement -14- 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 regulations as soon after the Effective Date as reasonably practicable. The Implementation Plan shall not be filed with the Public Utilities Commission until it is approved by the Board in the manner provided by Section 4.12. 5.1.3 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. 5.2 Other Authority Documents. The Parties acknowledge and agree that the operations of the Authority will be implemented through various documents duly adopted by the Board through Board resolution or minute action, including but not necessarily limited to the Operating Rules and Regulations, the annual budget, and specified plans and policies defined as the Authority Documents by this Agreement. The Parties agree to abide by and comply with the terms and conditions of all such Authority Documents that may be adopted by the Board, subject to the Parties’ right to withdraw from the Authority as described in Article 7. 5.3 Integrated Resource Plan. The Authority shall cause to be prepared an Integrated Resource Plan in accordance with CPUC regulations that will ensure the long-term development and administration of a variety of energy programs that promote local renewable resources, conservation, demand response, and energy efficiency, while maintaining compliance with the State Renewable Portfolio standard and customer rate competitiveness. The Authority shall prioritize the development of energy projects in Alameda and adjacent counties. Principal aspects of its planned operations shall be in a Business Plan as outlined in Section 5.4 of this Agreement. 5.4 Business Plan. The Authority shall cause to be prepared a Business Plan, which will include a roadmap for the development, procurement, and integration of local renewable energy resources as outlined in Section 5.3 of this Agreement. The Business Plan shall include a description of how the CCA Program will contribute to fostering local economic benefits, such as job creation and community energy programs. The Business Plan shall identify opportunities for local power development and how the CCA Program can achieve the goals outlined in Recitals 3 and 6 of this Agreement. The Business Plan shall include specific language detailing employment and labor standards that relate to the execution of the CCA Program as referenced in this Agreement. The Business Plan shall identify clear and transparent marketing practices to be followed by the CCA Program, including the identification of the sources of its electricity and explanation of the various types of electricity procured by the Authority. The Business Plan shall cover the first five (5) years of the operation of the CCA Program. The Business Plan shall be completed by the Authority no later than eight (8) months after the seating of the Authority Board of Directors. Progress on the implementation of the Business Plan shall be subject to annual public review. October 4, 2016 County Approval Agreement -15- 5.5 Labor Organization Neutrality. The Authority shall remain neutral in the event its employees, and the employees of its subcontractors, if any, wish to unionize. 5.6 Renewable Portfolio Standards. The Authority shall provide its customers renewable energy primarily from Category 1 eligible renewable resources, as defined under the California RPS and consistent with the goals of the CCA Program. The Authority shall not procure energy from Category 3 eligible renewable resources (unbundled Renewable Energy Credits or RECs) exceeding 50% of the State law requirements, to achieve its renewable portfolio goals. However, for Category 3 RECs associated with generation facilities located within its service jurisdiction, the limitation set forth in the preceding sentence shall not apply. ARTICLE 6 FINANCIAL PROVISIONS 6.1 Fiscal Year. The Authority’s fiscal year shall be 12 months commencing July 1 and ending June 30. The fiscal year may be changed 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 reasonable times. 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 payments 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 from 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 Regulations. 6.3.2 Funding of Initial Costs. The County shall fund the Initial Costs of establishing and implementing the CCA Program. In the event that the October 4, 2016 County Approval Agreement -16- CCA Program becomes operational, these Initial Costs paid by the County and any specified interest shall be included in the customer charges for electric services to the extent permitted by law, and the County shall be reimbursed from the payment of such charges by customers of the Authority. The Authority may establish a reasonable time period over which such costs are recovered. In the event that the CCA Program does not become operational, the County shall not be entitled to any reimbursement of the Initial Costs. 6.3.4 Additional Contributions and Advances. Pursuant to Government Code Section 6504, the Parties may in their sole discretion make financial contributions, loans or advances to the Authority for the purposes of the Authority set forth in this Agreement. The repayment of such contributions, loans or advances will be on the written terms agreed to by the Party making the contribution, loan or advance and the Authority. ARTICLE 7 WITHDRAWAL AND TERMINATION 7.1 Withdrawal. 7.1.1 General Right to Withdraw. 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 180 days 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. 7.1.2 Withdrawal Following Amendment. Notwithstanding Section 7.1.1, a Party may withdraw its membership in the Authority following an amendment to this Agreement provided that the requirements of this Section 7.1.2 are strictly followed. A Party shall be deemed to have withdrawn its membership in the Authority effective 180 days after the Board approves an amendment to this Agreement if the Director representing such Party has provided notice to the other Directors immediately preceding the Board’s vote of the Party’s intention to withdraw its membership in the Authority should the amendment be approved by the Board. 7.1.3 The Right to Withdraw Prior to Program Launch. After receiving bids from power suppliers for the CCA Program, the Authority must provide to the Parties a report from the electrical utility consultant retained by the Authority comparing the Authority’s total estimated electrical rates, the estimated greenhouse gas emissions rate and the amount of estimated renewable energy to be used with that of the incumbent utility. Within 30 days after receiving this report, through its City Manager or a person expressly authorized by the Party, any Party may immediately withdraw October 4, 2016 County Approval Agreement -17- its membership in the Authority by providing written notice of withdrawal to the Authority if the report determines that any one of the following conditions exists: (1) the Authority is unable to provide total electrical rates, as part of its baseline offering to customers, that are equal to or lower than the incumbent utility, (2) the Authority is unable to provide electricity in a manner that has a lower greenhouse gas emissions rate than the incumbent utility, or (3) the Authority will use less qualified renewable energy than the incumbent utility. Any Party who withdraws from the Authority pursuant to this Section 7.1.3 shall not be entitled to any refund of the Initial Costs it has paid to the Authority prior to the date of withdrawal unless the Authority is later terminated pursuant to Section 7.3. In such event, any Initial Costs not expended by the Authority shall be returned to all Parties, including any Party that has withdrawn pursuant to this section, in proportion to the contribution that each made. Notwithstanding anything to the contrary in this Agreement, any Party who withdraws pursuant to this section shall not be responsible for any liabilities or obligations of the Authority after the date of withdrawal, including without limitation any liability arising from power purchase agreements entered into by the Authority. 7.2 Continuing Liability After Withdrawal; Further Assurances; Refund. A Party that withdraws its membership in the Authority under either Section 7.1.1 or 7.1.2 shall be responsible for paying its fair share of costs incurred by the Authority resulting from the Party’s withdrawal, including costs from the resale of power contracts by the Authority to serve the Party’s load and any similar costs directly attributable to the Party’s withdrawal, such costs being limited to those contracts executed while the withdrawing Party was a member, and administrative costs associated thereto. The Parties agree that such costs shall not constitute a debt of the withdrawing Party, accruing interest, or having a maturity date. 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 costs described above. Any amount of the Party’s funds held by the Authority for the benefit of the Party that are not required to pay the Party’s costs described above shall be returned to the Party. The withdrawing party and the Authority shall execute and deliver all further instruments and documents, and take any further action that may be reasonably necessary, as determined by the Board, to effectuate the orderly withdrawal of such Party from membership in the Authority. A withdrawing party has the right to continue to participate in Board discussions and decisions affecting customers of the CCA Program that reside or do business within the jurisdiction of the Party until the withdrawal’s effective date. 7.3 Mutual Termination. This Agreement may be terminated by mutual agreement of all the Parties; provided, however, the foregoing shall not be construed as limiting the rights of a Party to withdraw its membership in the Authority, and thus terminate this Agreement with respect to such withdrawing Party, as described in Section 7.1. 7.4 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 October 4, 2016 County Approval Agreement -18- under this Agreement and under any Authority Documents, shall be returned to the then-existing Parties in proportion to the contributions made by each. ARTICLE 8 MISCELLANEOUS 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. Before exercising any remedy provided by law, a Party or the Parties and the Authority shall engage in nonbinding mediation in the manner agreed upon by the Party or Parties and the Authority. The Parties agree that each Party may specifically enforce this section 8.1. In the event that nonbinding mediation is not initiated or does not result in the settlement of a dispute within 120 days after the demand for mediation is made, any Party and the Authority may pursue any remedies provided by law. 8.2 Liability of Directors, Officers, and Employees. The Directors, officers, and employees of the Authority shall use ordinary care and reasonable diligence in the exercise of their powers and in the performance of their duties pursuant to this Agreement. No current or former Director, officer, or employee will be responsible for any act or omission by another Director, officer, or employee. The Authority shall defend, indemnify and hold harmless the individual current and former Directors, officers, and employees for any acts or omissions in the scope of their employment or duties in the manner provided by Government Code Section 995 et seq. Nothing in this section shall be construed to limit the defenses available under the law, to the Parties, the Authority, or its Directors, officers, or employees. 8.3 Indemnification of Parties. The Authority shall acquire such insurance coverage as the Board deems necessary to protect the interests of the Authority, the Parties and the public. Such insurance coverage shall name the Parties and their respective Board or Council members, officers, agents and employees as additional insureds. 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 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. 8.4 Amendment of this Agreement. This Agreement may be amended in writing by a two-thirds affirmative vote of the entire Board satisfying the requirements described in Section 4.12. Except that, any amendment to the voting provisions in Section 4.12 may only be made by a three-quarters affirmative vote of the entire Board. The Authority shall provide written notice to the Parties at least 30 days in advance of any proposed amendment being considered by the Board. If the proposed amendment is adopted by the Board, the Authority shall provide prompt written notice to all Parties of the effective date of such amendment along with a copy of the amendment. 8.5 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 8.5 shall be null and void. This Agreement shall inure to the benefit October 4, 2016 County Approval Agreement -19- of, and be binding upon, the successors 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 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. 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 provision 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 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. 8.9 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 72 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. In addition, a duplicate copy of all notices provided pursuant to this section shall be provided to the Director and alternate Director for each Party. Notices given to one Party shall be copied to all other Parties. Notices given to the Authority shall be copied to all Parties. All notices required hereunder shall be delivered to: The County of Alameda Director, Community Development Agency 224 West Winton Ave. Hayward, CA 94612 October 4, 2016 County Approval Agreement -20- With a copy to: Office of the County Counsel 1221 Oak Street, Suite 450 Oakland, CA 94612 if to [PARTY No. ____] Office of the City Clerk __________________________ __________________________ Office of the City Manager/Administrator __________________________ __________________________ Office of the City Attorney __________________________ __________________________ if to [PARTY No._____ ] Office of the City Clerk __________________________ __________________________ Office of the City Manager/Administrator __________________________ __________________________ Office of the City Attorney __________________________ __________________________ October 4, 2016 County Approval Agreement -21- ARTICLE 9 SIGNATURE IN WITNESS WHEREOF, the Parties hereto have executed this Joint Powers Agreement establishing the East Bay Community Energy Authority. By: Name: Title: Date: Party: 9/26/2016 Draft Exhibit A Page 1 EXHIBIT A -LIST OF THE PARTIES (This draft exhibit is based on the assumption that all of the Initial Participants will become Parties. On the Effective Date, this exhibit will be revised to reflect the Parties to this Agreement at that time.)- - 9/26/2016 Draft Exhibit B Page 1 DRAFT EXHIBIT B -ANNUAL ENERGY USE (This draft exhibit is based on the assumption that all of the Initial Participants will become Parties. On the Effective Date, this exhibit will be revised to reflect the Parties to this Agreement at that time.) This Exhibit B is effective as of ________________. Party kWh ([YEAR]*) *Data provided by PG&E DRAFT EXHIBIT C - VOTING SHARES (This draft exhibit is based on the assumption that all of the Initial Participants will become Parties. On the Effective Date, this exhibit will be revised to reflect the Parties to this Agreement at that time.) This Exhibit C is effective as of ___________________. Party kWh ([YEAR]*) Voting Share Section 4.11.2 Total *Data provided by PG&E RESOLUTION NO. ____ - 16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING AN AGREEMENT TO PARTICIPATE IN A JOINT POWERS AGENCY FOR COMMUNITY CHOICE AGGREGATION PROGRAM IN ALAMEDA COUNTY WHEREAS, the City of Dublin has demonstrated its commitment to an environmentally sustainable future through its policy goals and actions, including energy reduction, clean energy programs, and the expansion of local renewable power supply; and WHEREAS, the City has adopted a Climate Action Plan to reduce greenhouse gas emissions; and WHEREAS, Community Choice Aggregation (CCA) is a mechanism by which local governments assume responsibility for providing electrical power for residential and commercial customers in their jurisdiction in partnership with local commercial energy purveyors and owners of transmission facilities, which in the case of the City of Dublin is Pacific Gas & Electric Co.; and WHEREAS, CCA has the potential to reduce greenhouse gas emissions related to the use of power in the City of Dublin; provide electric power and other forms of energy to customers at a competitive cost; carry out programs to reduce energy consumption; stimulate and sustain the local economy by developing local jobs in renewable energy; and promote long-term electric rate stability and energy security and reliability for residents through local control of electric generation resources; and WHEREAS, Staff has examined and identified Community Choice Aggregation as a key strategy to meet local clean energy goals and projected greenh ouse gas reduction targets; and WHEREAS, the Board of Supervisors of Alameda County directed the Alameda County Community Development Agency (CDA) to determine if a Community Choice Aggregation (CCA) program is feasible for cities in Alameda County; and WHEREAS, CDA staff prepared a “Technical Study for Community Choice Aggregation Program in Alameda County” (Technical Study, July 2016); and WHEREAS, taken comprehensively, the Technical Study suggests that an Alameda County CCA would be feasible, could operate economically, could provide ratepayers reductions on their electric bills, and could both increase renewable energy and reduc e greenhouse gas emissions if the right balance is achieved by a joint powers agreement; and Page 2 of 2 WHEREAS, if a municipality is to form a CCA with other municipalities, it must become a part of a Joint Powers Agency (JPA) as required by the legislation that permits CCAs; and WHEREAS, a draft JPA Agreement has been prepared by the Office of the County Counsel and has been reviewed by City Attorneys of Alameda County cities and the membership of the Steering Committee over the course of several months. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Dublin does hereby approve the agreement titled “East Bay Community Energy Authority - Joint Powers Agreement” in order to participate with other prospective signatories in a Community Choice Aggregation JPA for Alameda County municipalities, and authorizes the City Manager or his designee to execute the agreement. PASSED, APPROVED AND ADOPTED this 15th day of November 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk ORDINANCE NO. XX-2016 AN UNCODIFIED ORDINANCE OF THE CITY OF DUBLIN AUTHORIZING THE IMPLEMENTATION OF A COMMUNITY CHOICE AGGREGATION PROGRAM THE CITY COUNCIL OF THE CITY OF DUBLIN DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby finds and declares: A. The County of Alameda (“County”) has been actively investigating options to provide electricity supply services to constituents within the County with the intent of achieving greater local involvement over the provision of electricity supply services, competitive electric rates, the development of local renewable energy projects, reduced greenhouse gas emissions, and the wider implementation of energy conservation and efficiency projects and programs. B. Assembly Bill 117, codified as Public Utilities Code Section 366.2 (the “Act”), authorizes any California city or county whose governing body so elects, to combine the electricity load of its residents and businesses in a community wide electricity aggregation program known as Community Choice Aggregation (“CCA”). C. The Act allows a CCA program to be carried out under a joint powers agreement entered into by entities that each have capacity to implement a CCA program individually. The joint power agreement structure reduces the risks of implementing a CCA program by immunizing the financial assets of participants. To this end, since 2014, the County has been evaluating a potential CCA program for the County and the cities within Alameda County. D. The County Board of Supervisors voted unanimously in June of 2014 to allocate funding to explore the creation of a CCA Program and directed County staff to undertake the steps necessary to evaluate its feasibility. To assist in the evaluation of the CCA program within Alameda County, the County established a Steering Committee in 2015, that has met monthly, advising the Board of Supervisors on the possibility of creating a CCA Program. E. The Technical Feasibility Study completed in June of 2016 shows that implementing a Community Choice Aggregation program would likely provide multiple benefits to the citizens of Alameda County, including the following: 1. Providing customers a choice of power providers; 2. Increasing local control over energy rates and other energy-related matters; 3. Providing electric rates that are competitive with those provided by the incumbent utility; 4. Reducing greenhouse gas emissions arising from electricity use; 5. Increasing local and regional renewable generation capacity; 6. Increasing energy conservation and efficiency projects and programs; 7. Increasing regional energy self-sufficiency; and 8. Encouraging local economic and employment benefits through energy conservation and efficiency projects. F. Representatives from the County and Alameda County cities have developed the East Bay Community Energy Authority Joint Powers Agreement (“Joint Powers Agreement”). The Joint Powers Agreement creates the East Bay Community Energy Authority (“Authority”), which will govern and operate the CCA program. The County and the Alameda County cities that elect to participate in the CCA Program shall do so by approving the execution of the Joint Powers Agreement and adopting an ordinance electing to implement a CCA Program, as required by Public Utilities Code Section 366.2(c)(12). G. The Authority will enter into agreements with electric power suppliers and other service providers and, based upon those agreements, the Authority plans to provide electrical power to residents and businesses at rates that are competitive with those of the incumbent utility. Upon the California Public Utilities Commission approving the implementation plan prepared by the Authority, the Authority can provide service to customers within it member jurisdictions. Under Public Utilities Code Section 366.2, customers have the right to opt-out of a CCA program and continue to receive service from the incumbent utility. Customers who wish to continue to receive service from the incumbent utility will be able to do so at any time. SECTION 2. Based upon the findings set forth in Section 1, the City elects to implement a Community Choice Aggregation program within Alameda County by and through the City’s participation in the East Bay Community Energy Authority. SECTION 3. CEQA The City Council finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) in that it is not a Project which has the potential for causing a significant effect on the environment. The City Council therefore directs that a Notice of Exemption be filed with the Alameda County Clerk in accordance with the CEQA guidelines. SECTION 4. SEVERABILITY If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Dublin hereby declares that it would have passed this ordinance and each section or subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. SECTION 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and will be enforced thirty (30) days from and after the date of the passage. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. * * * The foregoing ordinance was introduced before the City Council of the City of Dublin at the regular meeting of the City Council, held on the ____ day of ___, ____, and finally adopted at a regular meeting of the City Council held on the ___ day of ___, ____, by the following vote: AYES: NOES: ABSENT: ABSTAIN: _________________________________ Mayor ATTEST: __________________________________ City Clerk APPROVED AS TO FORM: _________________________________ City Attorney