HomeMy WebLinkAboutReso 124-1995 RESOLUTION NO. 124-95
CITY COUNCILi, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING PARTICIPATION
IN THE ABAG PURCHASING POOL
WHEREAS, the City of South San Francisco is currently
purchasing natural gas and related transportation and distribution
services fromlPacific Gas & Electric (PG&E); and
WHEREAS, ienergy rates in the Bay Area are among the highest in
the nation, p~rticularly for natural gas and electricity; and
WHEREAS, ideregulation of the natural gas industry in 1986 and
deregulation Of the electric services industry currently under
consideration by the California Public Utilities Commission and the
State legislature is creating new opportunities for local
governments t~ lower their energy costs through collective action;
and ~
WHEREAS, ithere are no existing power purchasing pools for Bay
Area local governments interested in lower energy costs; and
WHEREAS, !bulk purchasing of natural gas has proven itself to
be a legal and cost-effective means to achieve reduction in energy
costs through ithe use of a competitive bid program; and
WHEREAS, lit would greatly benefit the City of South San
Francisco to be prepared to take advantage of any coming changes in
the regulation[ of the electric market; and
WHEREAS, !the City of South San Francisco is a member of the
Association of! Bay Area Governments (ABAG); and
WHEREAS, ABAG, in conjunction with New Energy Ventures, Inc.
(NEV), proposes to form a Power Purchasing Pool Program to
aggregate natural gas needs of interested ABAG members and
associate members, to collectively negotiate a purchase of natural
gas and transportation services through a competitive request for
proposals, and!to negotiate an agreement with PG&E for distribution
of natural gas.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the
City of South San Francisco hereby authorizes the participation of
the City of So'ath San Francisco in the ABAG Power Purchasing Pool
to undertake ia bulk purchasing program for natural gas and
electricity to!the extent legally permissible on behalf of the City
of South San !Francisco and other ABAG members or cooperating
members.
BE IT FURTHER RESOLVED, that the city Manager, or his
designee, is authorized to enter into a Subscription Agreement with
ABAG, in substantially the form set forth in the attached Exhibit
"A" appointing ABAG as the agent for the City of South San
Francisco in inegotiating a Distribution Agreement with PG&E,
issuing a ReqUest for Proposal for the purchase and transportation
of natural gas and negotiation of a contract with the most
responsive, rE
FINALLY,
designee is
negotiated by
is appointed
Committee to
program.
~sponsible proposer offering the lowest costs.
BE IT ALSO RESOLVED, that the City Manager or his
authorized to execute and deliver the contracts
ABAG on behalf of the City of South San Francisco and
he City's representative on ABAG's Power Purchasing
9versee the operation of the Power Purchasing Pool
I hereby certify that the foregoing Resolution was regularly
introduced and adopted by the City Council of the City of South San
Francisco at a re.qu]ar meeting held on the 25th day of
0ct0ber , 1995 by the following vote.
AYES: Councilmembers Jack Drago, John R. Penna, Roberta Cerri Teglia
and iMayor Robert Yee
NOES: None
ABSTAIN: None
ABSENT C0uNci]member Joseph A. Fernekes
city Clerk
ReaoI.ABO
RESOLUTION NO. 124-95
EXHIBIT "A"
STANDARD CONTRACT PROVISIONS
1. Ass£gnment. This Agreement shall not be assigned,
transferred, kypothecated, or pledged by either party without prior
written consent of the other.
2. Amendment. This Agreement may be amended at any time,
but only by a!writing signed by both parties.
3. Time of Essence. Time is of the essence in this
Agreement.
4. Waiver. The waiver by either party of a breach by the
other of any provision of this Agreement shall not constitute a
continuing waiver or a waiver of any subsequent breach either of
the same or aldifferent provision of this Agreement.
5. Headings. The descriptive headings used in this
Agreement are ifor convenience only and shall not control or affect
the meaning or construction of any of its provisions.
6. Entire Agreement. This Agreement is entire as to all of
the performarces to be rendered under it. This Agreement
supersedes any and all other contracts either oral or in writing
between ABAG and the City of South San Francisco with respect to
the subject matter hereof and contains all of the covenants and
agreements between the parties with respect to such matter. Each
party to this Agreement acknowledges that no representations,
inducements, promises, or contracts, orally or otherwise, have been
made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other contract, statement, or
promise not contained in this Agreement shall be valid or binding.
7. Con~rolling Law. This Agreement and all matters relating
to it shall b~ governed by the laws of the State of California.
8. Bin~ing on Successors, Etc. This Agreement shall be
binding upon the successors, assigns, or transferees of ABAG or the
City of SouthlSan Francisco as the case may be. This provision
shall not be Construed as an authorization to assign, transfer,
hypothecate, or pledge this Agreement other than as provided above.
9. Seve
declared uncor
either party t
affect the val
continue in fu
this Agreement
interpreted to
rability. Should any part of this Agreement be
~stitutional, invalid, or beyond the authority of
o enter into or carry out, such decision shall not
.dity of the remainder of this Agreement, which shall
[1 force and effect; provided that, the remainder of
can, absent the excised portion, be reasonably
give effect to the intentions of the parties.
10. Termination. If, through any cause, either party fails
to fulfill in!timely and proper manner its obligations under this
Agreement, or if such party violates any of the covenants,
conditions, contracts, or stipulations of this Agreement, the other
party has the right to terminate this Agreement by giving written
notice to the breaching party specifying the effective date of
termination, i Notice of termination shall be given at least five
(5) days before its effective date. This section does not relieve
the other party of liability to the other for damages arising out
of a breach of this Agreement.
11. RecOrds/Audit. ABAG shall keep complete and accurate
books and records of all financial aspects of its relationship with
the City of South San Francisco in accordance with
generally-accepted accounting principles. ABAG shall permit
authorized r~presentatives of the City of South San Francisco
and/or any of the City of South San Francisco's governmental
grantors to inspect, copy, and audit all data and records of ABAG
relating to its performance of services under this Agreement. ABAG
shall maintain all such data and records intact for a period of
three (3) years after the date that services are completed
hereunder or this Agreement is otherwise terminated.
12. Pro]libited Interest. ABAG's officers, employees or
agents shall neither solicit nor accept gratuities, favors or
anything of monetary value from contractors, potential contractors,
or parties to!subcontracts.
13. InsUrance Requirements.
(a) ABAG shall, at its own expense, obtain and maintain
in effect at all times during the life of this Agreement the
following insurance:
i (1) Workers' compensation insurance as required by
law.
, (2) Comprehensive general liability insurance
coverage of one Million Dollars ($1,000,000) in the aggregate for
products and/Ior completed operations and One Million Dollars
($1,000,000) Per occurrence for automobiles.
(3) Professional liability insurance with minimum
liability limits of Two Million Dollars ($2,000,000) in the
aggregate. ~
(b) Ail ABAG's insurance policies shall contain an
endorsement providing that written notice shall be given to the
City of SouthI San Francisco at least thirty (30) days prior to
termination, Cancellation, or reduction of coverage in the policy
or policies, and all policies shall be carried by an insurance
company or companies acceptable to the City of South San Francisco.
(C) i In addition, each policy or policies of insurance
described in isubparagraph (2) above shall contain an endorsement
providing forI inclusion of the City of South San Francisco and
its directorS, officers, agents, and employees as additional
insureds withlrespect to the work or operations in connection with
this Agreement and providing that such insurance is primary
insurance andlthat no insurance of the City of South San Francisco
will be called upon to contribute to a loss.
(d) Promptly upon execution of this Agreement, ABAG
shall deliver to the City of South San Francisco certificates of
insurance evidencing the above insurance coverages. Such
certificates shall make reference to all provisions or endorsements
required herein and shall be signed on behalf of the insurer by an
authorized representative thereof. ABAG agrees that at any time
upon written request by the City of South San Francisco to make
available copies of such policies certified by an authorized
representative of the insured.
(e) i The foregoing requirements as to types and limits of
insurance coyerage to be maintained by ABAG and approval of
policies by the City of South San Francisco are not intended to,
and shall not~ in any manner limit or qualify the liabilities and
obligations otherwise assumed by ABAG pursuant to this Agreement,
including, but not limited to, liability assumed pursuant to ABAG's
insurance policies under Subsections (a) (2) of this section.
(f) l ABAG shall require all subcontractors to comply with
the insurance requirements described in Section 13(a)-(d),
inclusive.
14. Arbitration. Any dispute between ABAG and the City of
South San Frar.cisco regarding the interpretation, effects, alleged
breach or powers and duties arising out of this Agreement shall be
submitted to binding arbitration. The arbitrator shall be selected
by agreement between the parties by lot from a list of up to six
(6) arbitrators with each party submitting up to three (3)
arbitrators.
11. Othsr Contract Provisions. This Agreement shall be
subject to the other standard provisions which are set forth in the
attached ExhiDit __, which is incorporated by this reference.
IN WITNESS WHEREOF, the parties have hereunto set their hands
effective theidate and year first above written.
ASSOCIATION OF BAY AREA GOVERNMENTS
by'
Eugene Y~ Leong, Executive Director
Approved as t9 legal form and content:
by:
Kenneth K. Moy, Legal Counsel
CITY OF SOUTH SAN FRANCISCO
by:
Michael A. Wilson, City Manager
Approved as to legal form and content:
by:
Steven T. Mattas, City Attorney
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I! I I[
RESOLUTION NO. 124-95
POWER PURCHASING PROGRAM
SUBSCRIPTION AGREEMENT
No. 96.01
This A~reement made effective the day of
, 1995, between the Association of Bay Area Governments
(ABAG), a joint powers entity created pursuant to California
Government Code Sections 6500 et. seq., and the city of South San
Francisco, a California Corporation.
RECITALS
A. The City of South San Francisco currently purchases
natural gas, .~nd natural gas transportation and distribution from
Pacific Gas & Electric (PG&E).
B. ABAG, with the assistance of New Energy Ventures, Inc.
(NEV), has organized a program for the bulk purchase of natural gas
and for natural gas transportation and distribution services on
behalf of interested members, of ABAG (Power Purchasing Program).
generate cost
natural gas.
C. ABAG's Power Purchasing Program has the potential to
savings in the City of South San Francisco's use of
Therefore, in consideration of the mutual promises
contained in this Agreement, the parties agree to perform as
follows-.
TERMS AND CONDITIONS
1. Sco)e of Services.
(a) The city of South San Francisco hereby appoints ABAG
its exclusive agent from the effective date of this Agreement until
the Expiration Date as defined in Section 2 or until this Agreement
is terminated in accordance with its terms, with all powers
reasonably necessary to accomplish the following:
distribution
which PG&E cu~
San Francisco
purchase and
system.
(1) Negotiate an agreement with PG&E for the
Df natural gas to some or all of the locations at
~rently distributes natural gas to the City of South
PG&E Agreement)
(2) Issue a Request for Proposal (RFP) for the
delivery of natural gas to the PG&E distribution
responsible e
(3) Negotiate a contract with the responsive,
ntity proposing the lowest cost for furnishing and
transporting natural gas (Natural Gas Purchase Contract).
(b)i The City of South San Francisco acknowledges that
ABAG will b~ aggregating some or all of the natural gas
requirements Df the City of South San Francisco and other members
and associatie members of ABAG and that the RFP process,
negotiations and contracts contemplated under subsection l(a) will
be performed lon behalf of the City of South San Francisco and
other ABAG members. The City of South San Francisco will use its
best reasonable effort to transmit, or cause to be transmitted to
ABAG such information as may be necessary for ABAG to determine the
City of south san Francisco's natural gas needs based on past
usage patterns and to efficiently aggregate the City of South San
Francisco's inatural gas needs with those of other ABAG members
participating! in the Power Purchasing Program, including utility
bills and locations of utility meters.
(c) i ABAG will act on behalf of the City of South San
Francisco and other members of ABAG participating in the Power
Purchasing Program as described in subsection l(a) of this
Agreement.
2. Term. This Agreement is effective as the date first set
forth above and shall expire on the earlier of
or the date the City of South San Francisco fails to execute and
deliver the ~atural Gas Purchase Contract or the PG&E Agreement
pursuant to Section 4(b). This Agreement may terminate prior to
the expiration date in accordance with the provisions of Section 10
of Exhibit A.'
3. Compensation.
(a)~ Upon execution and delivery of the Natural Gas
Purchase Contract and PG&E Agreement, the City of South San
Francisco shall be obligated to pay transaction fees to ABAG to
cover ABAG's Costs in implementing the Power Purchasing Program.
ABAG's transaction fees will not exceed six cents ($.06) per
decatherm ofl natural gas delivered to the City of South San
Francisco during the term of the Natural Gas Purchase Contract.
(b) The amount or method of determining of ABAG's fees
will be identified in the Rate Proposal described in Section 4(a).
(c) i Subject to Section 3(a), on the first day of each
month, ABAG will send an invoice for its fees to the City of South
San Franciscoifor review. The City of South San Francisco will pay
the invoice within thirty (30) days of receipt or submit a written
statement within that time stating the basis for the City of South
San Franciscoi's disapproval of all or a portion of the invoice.
Fee disputes Will be resolved by mutual agreement or submitted to
arbitration under Section 13 of Exhibit "A".
Participation.
(a) Upon completion of ABAG's negotiation of a PG&E
Agreement and a Natural Gas Purchase Contract, such agreements and
a Rate Schedale containing (1) the proposed total unit cost of
natural gas as transported to identified City of South San
Francisco meter locations; (2) the total unit cost of natural gas
transferred t~ identified South San Francisco locations last year;
and (3) ABAG'!s fees shall be submitted to the individual City of
South San Francisco.
(b)! The City of South San Francisco shall within sixty
(60) working days of the date of the Rate Schedule deliver to ABAG:
(1) Duly authorized and validly executed originals
of the Natural Gas Purchase Contract and PG&E Agreement; or
(2) The City of South San Francisco's rejection of
the agreements and/or fees; or
~ (3) The City of South San Francisco's Council
resolution withdrawing from the Power Purchasing Program.
5. PoKer Purchasing Pool Committee. Upon execution and
delivery of ithe PG&E Agreement and the Natural Gas Purchase
Contract, the City Manager, shall be the City of South San
Francisco's representative to the Power Purchasing Pool Committee.
The Power Purchasing Pool Committee shall provide policy direction
for the Power Purchasing Program. The Committee's powers shall
include admission of new Participants and the extension of the PG&E
Agreement and the Natural Gas Purchase Contract, under rules and
procedures ad!opted by the Committee.
6. Applrovals. The City of South San Francisco
Representative may grant any approval, or give any direction
required by~ this Agreement, in writing or orally. Written
approvals or ~irections may be transmitted physically, by facsimile
or electronically. Oral approvals will be confirmed in writing by
either party.
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7. Written Notices.
to the folloWing:
Written notices shall be transmitted
AB~G:
Association of Bay Area Governments
P.O. Box 2050
Oakland, CA 94604-2050
Facsimile:
Electronic Mail:
City :
,
City of South San Francisco
400 Grand Avenue
South San Francisco, CA. 94080
8. Attorneys' Fees. In the event either of the parties
brings an action or legal proceeding due to an alleged breach of
this Agreement, the prevailing party shall be entitled to recover
reasonable a~torneys' fees and costs as determined by a court of
competent jurisdiction.
9. Subcontractors. ABAG may not subcontract any portion of
the work under this Agreement without the City of South San
Francisco's prior written consent. The City of South San Francisco
hereby consents to ABAG's contracting with NEV.
10. Ownership of Files, Reports, Photographs, and Related
Documents. Upon completion of the work or termination of the
Agreement, a!ny and all files, reports, photographs, plans,
specifications, drawings, data, maps, models and related documents
respecting inlany way the subject matter of this Agreement, whether
prepared by ! ABAG, the City of South San Francisco or third
parties and in whatever media they are stored shall remain or shall
become the property of the City of South San Francisco and the City
of South SanI Francisco shall acquire title to, and copyright
ownership of,i all such documents. The City of South San Francisco
hereby grants to ABAG an irrevocable license to retain a copy of
all records ciovered by this section for ABAG's files.
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