SVCCE.service.agmt 2015
Community Choice Energy Agreement Page 1 of 7
AGREEMENT BETWEEN THE CITIES OF SUNNYVALE, MOUNTAIN VIEW, AND
CUPERTINO AND THE COUNTY OF SANTA CLARA FOR
PHASE 1B (FEASIBILITY STUDY) AND PREPARATION FOR PHASE 2
(IMPLEMENTATION PROGRAM DEVELOPMENT) OF A PROPOSED COMMUNITY
CHOICE ENERGY PROGRAM
This Agreement is made and entered into this 1st day of July, 2015 (“Effective Date”), by
and between the City of Sunnyvale, (“Sunnyvale”), the City of Mountain View (“Mountain
View”), the City of Cupertino (“Cupertino”), and the County of Santa Clara (“County”).
Sunnyvale, Mountain View, Cupertino, and County hereinafter may be referred to individually
as “Party” and collectively as “Parties.”
Whereas, the Parties to this Agreement share a mutual interest in addressing climate
change by reducing energy-related greenhouse gas (GHG) emissions, promoting the use of
renewable energy sources and providing residences and businesses with a choice in the purchase
of electricity; and
Whereas, one way of meeting the above goals would be for public entities in Santa Clara
County to establish a Community Choice Energy (CCE) program in order to purchase energy
from renewable and other low GHG sources and sell it to residents and businesses in the
community; and
Whereas, establishing a CCE program also provides the Parties an opportunity to
stimulate local economies, create and sustain jobs, and develop and administer energy efficiency
programs; and
Whereas on February 20, 2015, the Parties entered into a Cost Sharing Agreement (the
“Prior Cost Sharing Agreement”) to fund the preparation of an initial CCE Study; and
Whereas, the initial CCE Study was prepared and completed by the consulting firm
LEAN Energy US and the Parties now desire to proceed to Phase 1B (Feasibility) and prepare
for Phase 2 (Implementation Program Development) of the evaluation of the proposed CCE
program (the “Project”); and
Whereas, the Parties anticipate seeking reimbursement for the cost share under this
Agreement from the CCE program revenues, should such a program be established and the Party
to be reimbursed becomes a program member; but each Party acknowledges that there will be no
reimbursement if a CCE program is not established; and
Whereas, the Parties desire to fund the Project with an agreement that will divide
responsibility for functions for the Project to individual Parties or other persons as described in
this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Community Choice Energy Agreement Page 2 of 7
1. Functions to be Performed and Services to be Provided.
A. The Parties have agreed to divide responsibility for the functions required to
complete the Project in the manner described in Attachment A, attached hereto. The Party
designated as the Lead for each function shall perform the activities described in Attachment A,
enter into the agreement with the consultant retained for the particular function, as appropriate,
and manage such consultant and agreement. Each Party shall designate a contract manager for
the contracts it enters into under this Agreement. No agreement shall be entered into by any
Party unless all of the following requirements are first satisfied:
(i) Payment under the agreement will not exceed the budgeted cost for the
work provided by such agreement as described in the Project Budget (the “Project
Budget”) approved by the Parties and attached hereto as Attachment B. The agreement
shall contain a specified cost not to exceed amount in accordance with the Project
Budget and shall state that this amount may not be increased without the approval of
the Executive Committee established by this Agreement.
(ii) The scope of work for the agreement has been approved by the Project
Team as provided by Section 5 below and the Executive Committee.
(iii) The Agreement provides that the contractor (1) shall hold harmless,
defend and indemnify all of the Parties from the negligence or willful misconduct of the
contractor, the contractor’s employees, officers, officials, agents and independent
contractors, (2) shall obtain insurance policies in accordance with the requirements of
the Party entering into the agreement and (3) shall name all of the Parties as an
additional insured on the contractor’s insurance policy.
(iv) The agreement specifies that all drafts, work products and deliverables
shall be owned by each of the Parties.
B. Each Party shall designate and identify to the other Parties their staff responsible
for performing the functions and activities assigned to such Party. All responsible staff shall
report progress on a weekly basis to the Project Team.
C. Changes to Attachments A and B shall be made only with the written agreement
of the principal administrative executives of all Parties through the Executive Committee.
2. Cost sharing. Parties shall equally share ($150,000 each) in the total costs for the
Project not to exceed $600,000. Eligible costs that may be incurred for the Project include
consultant payments, staff time reimbursement and other expenses needed to complete the
Project in accordance with the Project Budget. The costs for performing the activities described
for each function shall not exceed the amount shown for such function in the Project Budget.
Staff time shall be reimbursed based on the applicable staff position salary plus benefits, but not
including any overhead. Time spent by staff at Project Team meetings shall not be reimbursable
under this Agreement. Further the maximum amount of staff time that may be reimbursed shall
not exceed the amounts shown in the Project Budget.
Community Choice Energy Agreement Page 3 of 7
3. Deposit of Funds. Each Party shall each deposit the sum of $150,000 with
Sunnyvale within 15 days after such Party executes this Agreement. Sunnyvale shall act as
fiscal agent in the administration of this Agreement and shall establish a separate fund (the
“Project Account”) into which the contributions of monies made by each Party will be deposited.
Sunnyvale shall establish, maintain and administer the Project Account in accordance with its
established accounting and budgeting policies. Sunnyvale will deposit $150,000 of its funds into
the Project Account also within 15 days after it executes this Agreement.
4. Payment of Costs. In its role as fiscal agent, Sunnyvale shall be responsible for
making payments from the Project Account of all eligible costs submitted by the Parties for their
functions. None of the other Parties will be required to make any payment of costs incurred in
the performance of this Agreement as all such costs will be paid by Sunnyvale from the Project
Account. Each Party shall submit invoices to Sunnyvale for eligible costs it incurs for its
designated function. Each invoice shall certify that such costs have been reviewed and approved
by the contract manager for such Party. Sunnyvale may request additional information or
documentation reasonably necessary to determine if the invoiced costs are eligible costs for
payment from the Project Account under this Agreement. Sunnyvale shall pay a submitted
invoice to the person or entity entitled to payment within 30 days after it determines that the
invoice contains the required certification and is supported by adequate documentation that the
submitted costs are eligible for payment. Sunnyvale shall not pay any invoiced costs that exceed
the Project Budget. Sunnyvale shall provide monthly written progress reports to the other Parties
describing both the expenditures made in the prior month and expenditures made to date as
compared to the Project Budget. The monthly Progress Reports shall be in the form approved by
the Project Team. Sunnyvale shall maintain all records related to the Project Account, including
but not limited to invoices submitted and paid, Progress Reports, and all work generated
(regardless of the Party for whom the work was generated) for a period of five years after the
termination of this Agreement. Each Party shall have a right to inspect, copy, retain and use such
records. Further, each Party shall have the right to audit any expenditures under this Agreement
provided that such Party has first informally requested to review the relevant financial records
and is not reasonably satisfied with the results of such informal review. All Parties shall
reasonably cooperate with each other in completing the audit.
5. Project Team. A Project Team shall be constituted for the purpose of
supervising the administration of this Agreement and ensuring that the activities and tasks
required to complete the Project are timely completed. The Project Team shall consist of the
representative or representatives designated by each Party to this Agreement. The Project Team
shall meet regularly during the term of this Agreement at the times and place selected by the
Project Team.
6. Executive Committee. An Executive Committee shall be constituted for the
purposes of final review and decision-making with respect to the implementation of this
Agreement. The Executive Committee shall consist of the principal administrative executive of
each Party or his or her designee. In addition to any other approval assigned to the Executive
Committee elsewhere in this Agreement, any amendments to this Agreement, including Exhibits
A and B, shall be approved by all of the members of the Executive Committee. Any disputes
between the Parties arising from the implementation of this Agreement shall be considered by
the Executive Committee in accordance with the dispute resolution provisions of Section 14.
Community Choice Energy Agreement Page 4 of 7
7. Term. The term of this Agreement is from the Effective Date through June 30,
2016, unless extended by the written agreement of all the Parties. This Agreement will become
effective and be binding as of the Effective Date when all Parties have executed this Agreement.
No Party specified in this Agreement shall have any rights or obligations under this Agreement
until such Party executes it.
8. Relationship of Parties. The Parties, in the performance of the tasks to be
performed by each, will each act on their own behalf and not as an agent or employee of any
other Party. The employees of each Party shall be considered the employees of that Party only
during the performance of this Agreement.
8. Indemnification. Each Party shall defend, indemnify and hold harmless the other
Party (including its officers, employees and agents) against any claim, loss or liability arising out
of of the performance of this Agreement by such Party. Nothing contained herein shall be
construed as a waiver of any immunities or defenses that a Party may have under applicable
provisions of law, including the provisions of the California Tort Claims Act (Govt. Code §810
et seq.). Notwithstanding the above, this mutual indemnification agreement is adopted pursuant
to Government Code Section 895.4 and in lieu of and notwithstanding the pro rata risk allocation
which might otherwise be imposed between the parties pursuant to Government Code Section
895.6. This provision shall survive expiration or termination of this Agreement.
9. Non-discrimination. The Parties shall not discriminate, in any way, against any
person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived
gender identity, disability, ethnicity, national origin, or any other legally protected category, in
connection with or related to the performance of this Agreement.
10. Termination.
A. Each Party has a right to terminate its participation in this Agreement for
convenience, without cause, by giving not less than thirty (30) calendar days written notice of
termination to the other Parties. The terminating party will forfeit their proportional share of the
total funds expended or contractually committed at the time that notice of termination is given
but will have no further obligations under this Agreement. The terminating party shall receive
the remaining funds it deposited with Sunnyvale that were not expended or contractually
committed within 30 days after termination.
B. If any Party fails to perform any of its material obligations under this Agreement,
in addition to all other remedies provided by law, the Executive Committee may by unanimous
vote (excluding the vote of the breaching Party) elect to terminate the breaching Party upon
written notice and a reasonable opportunity to cure which shall not be less than 15 days. .
C. In the event there are excess monies remaining after the completion of the Project
or the termination of this Agreement by all Parties, such excess monies will be returned on an
equal basis to each of the remaining Parties to this Agreement.
Community Choice Energy Agreement Page 5 of 7
11. Notices. All notices and other communications required or permitted to be given
under this Agreement will be in writing and will be personally served or mailed, postage prepaid
and return receipt requested, addressed to the respective Parties as follows:
Sunnyvale:
Melody Tovar, Regulatory Programs Division Manager
City of Sunnyvale, Department of Environmental Services
P.O. Box 3707
Sunnyvale, CA 94088-3707
Cupertino:
Erin Cooke, Sustainability Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Mountain View:
Terry Blount, Assistant Community Development Director
City of Mountain View
500 Castro Street
Mountain View, CA 94041
County:
Demetra J. McBride, Director, Office of Sustainability
Office of the County Executive, Eleventh Floor—East Wing
70 W. Hedding Street
San Jose, CA 95110
Notice will be deemed effective on the date personally delivered or, if mailed, three (3)
calendar days after deposit in the mail.
12. Prior Cost Sharing Agreement. The Prior Cost Sharing Agreement is hereby
terminated and superseded by this Agreement as of the date that all Parties execute this
Agreement. Any unspent and unencumbered monies contributed by the Parties under the Prior
Cost Sharing Agreement will be transferred to the Project Account established by Sunnyvale and
spent for the purposes authorized by this Agreement.
13. Work Product. In the event that one of the Parties does not join a CCE program
resulting from this Agreement, such Party shall retain the right to use all of the data, information
or work generated by this Agreement for the purpose of creating a community choice
aggregation program as described in California Public Utilities Code Section 366.2 unless such
data or information is required to be kept confidential pursuant to state law or an executed Non
Disclosure Agreement.
14. Dispute Resolution. The Parties shall make reasonable efforts to settle all
disputes arising out of or in connection with this Agreement among themselves. Any Party
disputing any act or failure to act under this Agreement, shall first bring such dispute to the
SVCCEP Agmt - Att A - Function Scopes - 081915.docx Page 1 of 2 Printed 8/19/2015
Attachment A
Scope of Work
Phase 1b (Feasibility) and Preparation for Phase 2 (Implementation Program Development)
Each designated party shall lead the project functions as described below.
Function A: Overall Program Development and Project/Team Management
Lead: City of Sunnyvale
Key activities:
Manage program development consultant and agreement
Coordinate project team members and functions
Support CCE (Mayors) Task Force and Executive Team
Identify, manage and coordinate decision points across team functions (eg, Program Goals, Study
Participant ID)
Support development of partnership and cost-sharing agreements
Support stakeholder identification and mapping
Update project work plan and budget
Prepare for presentations to Boards/Councils
Function B: Technical Study and Scoping for Energy Services RFP
Lead: City of Sunnyvale
Key Activities:
Manage Technical Services consultant and agreement – Pacific Energy Advisors (PEA)
Review of example and alternative scopes or work for Tech Study
Work with PEA and LEAN to develop final scope of work
Prepare for presentations of Tech Study findings to Boards/Councils
Review examples and work with PEA to draft scope of services for Energy Services RFP
Function C: Community Engagement including Outreach, Media, and Stakeholder Meetings
Lead: City of Cupertino
Key Activities:
Manage Community Engagement consultant and agreement – MIG
Develop/finalize engagement strategy
Develop final scope of work and negotiate updated agreement with MIG; manage agreement
Maintain and update website
Lead development or update of outreach materials
Lead business engagement (potential partnership with JVSV)
Conduct community meetings and events, engage and leverage interested groups
Media engagement, respond to inquiries, serve as or coordinate spokespersons
Conduct or prepare for community polling
Function D: Interagency Coordination (12 agencies)
Lead: City of Mountain View
Key Activities:
Coordinate communication with broader partner group (12 agency participants)
Field questions from 12 agencies
Track agency meetings, e.g. Commission and Council
Schedule meetings and send invitations to JPA forums
Track agency ordinance adoption and other Council/Board approvals
Track JPA execution meetings
Function E: Recruitment for JPA, starting with GM/CEO
Lead: City of Cupertino
Key Activities:
Hiring executive recruiting firm
Research comparable positions
SVCCEP Agmt - Att A - Function Scopes - 081915.docx Page 2 of 2 Printed 8/19/2015
Establish hiring policies and benefits for eventual JPA positions
Work with Project Team, Executive Team, and Task Force to determine job scope and qualifications
Work with group to determine additional positions needed and timing for JPA launch and tranisiton to
independent operations
Manage recruitment for Project Manager/GM/CEO and other key positions; if to be hired prior to JPA
formation, employees may be limited term positions of a Partner agency.
Function F: JPA Development including agreements as needed for support functions
Lead: City of Sunnyvale
Key Activities:
Manage legal counsel and agreement – Richards, Watson, & Gershon
Support development of strategy for JPA formation – phased and expanded
Develop JPA agreement
Faciliate interagency meetings to achieve approval and execution of JPA agreement
Develop contracts (with outside service providers or Partners) to provide support functions needed for
JPA
Function G: Financing
Lead: City of Mountain View
Key Activities:
Coordinate and communicate with partners on financing needs
Research and evaluate options for securing bridge Financing for launch (to cover expenses between
launch and revenues received)
Draft and review documents
Make recommendation for which option(s) is most beneficial to the partnership
Function H: JPA Administrative Services - Preparation
Lead: TBD
Key Activities:
Prepare for JPA Support Functions, including:
o JPA Board admin: Meetings, Agendas, Policies, Website
o Accounting for JPA
o Procurement for JPA
May be further divided among Partners by function needed
Some functions may be outsourced; some functions may be continue to be provided by a Partner
agency under contract to JPA
Revised: 8/19/15 /mt
Attachment B: Project Budget by Function
FUNCTION TASKS STAFF HOURS STAFF COSTS ($)EXPENSES ($)
CONSULTANT
COSTS ($)TOTAL BY TASK ($)
Coordinate Project Team & Functions 60 8,103.00$ 12,000.00$ 15,000.00$ 35,103.00$
Develop Project Team Tools and Resources 40 5,402.00$ 5,402.00$
Support EO Task Force and Exec Team 50 6,752.50$ 6,800.00$ 13,552.50$
Support stakeholder mapping and identification 10 1,350.50$ 620.00$ 1,970.50$
Update Project Work Plan and Budget 20 2,701.00$ 1,700.00$ 4,401.00$
Prepare for Presentations to Board/Councils 20 2,701.00$ 10,000.00$ 12,701.00$
Provide Program Support to Tech Study and JPA Development 0 -$ 5,000.00$ 5,000.00$
Support Engagement Meetings (Not JPA)60 8,103.00$ 7,480.00$ 15,583.00$
Track/Leverage Statewide CCE Activity 10 1,350.50$ 3,400.00$ 4,750.50$
Develop Phase 2 and 3 Work Plans and Budgets 20 2,701.00$ 5,000.00$ 7,701.00$
Fiscal Adminstration 80 6,389.80$ 6,389.80$
Subtotal 370 45,554.30$ 12,000.00$ 55,000.00$ 112,554.30$
Develop and negotiate consultant agreement 10 1,350.50$ 1,350.50$
Develop Tech Study Scope 20 2,701.00$ 2,701.00$
Conduct Technical Study 0 -$ 130,000.00$ 130,000.00$
Review Tech Study Draft 20 2,701.00$ 2,701.00$
Present Tech Study Results 50 6,752.50$ 6,752.50$
Research Energy Services RFPs (Ph 2 Prep)40 5,120.00$ 5,120.00$
Develop Energy Services RFP (Ph 2 Prep)50 6,400.00$ 20,000.00$ 26,400.00$
Subtotal 190 25,025.00$ -$ 150,000.00$ 175,025.00$
Project Management & Coordination 40 3,760.00$ 2,800.00$ 6,560.00$
Messaging/Collateral Development 50 4,700.00$ 41,610.00$ 46,310.00$
Website Mgmt & Hosting 40 1,840.00$ 600.00$ 2,440.00$
Community & Stakeholder Engagement Meetings 60 5,640.00$ 24,970.00$ 30,610.00$
Business Stakeholder Meetings 20 1,880.00$ 24,000.00$ 25,880.00$
Media Engagement 60 7,020.00$ 7,020.00$
Survey or Focus Groups 20 1,880.00$ 35,000.00$ 36,880.00$
Prepration for Phase 2 40 4,220.00$ 25,000.00$ 29,220.00$
Printing, supplies, expenses -$ 8,000.00$ 8,000.00$
Subtotal 330 30,940.00$ 8,000.00$ 153,980.00$ 192,920.00$
Coordinate communications with broader partner group -$
Field questions from 12 agencies
Track agency meetings, e.g., Commission and Council -$
Schedule meetings and send invitations to JPA forums
Track agency ordinance adoption and other Council/Board approvals
Track JPA execution meetings -$
**** All Tasks ****200 16,400.00$ 16,400.00$
Subtotal 200 16,400.00$ -$ -$ 16,400.00$
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SVCCEP Agmt - Att B Budget Rev 081915.xlsx Page 1 of 2 Printed 8/19/2015
Attachment B: Project Budget by Function
FUNCTION TASKS STAFF HOURS STAFF COSTS ($)EXPENSES ($)
CONSULTANT
COSTS ($)TOTAL BY TASK ($)
Hire recruitment firm -$
Research comparable positions; develop job scopes and quals -$
Establish hiring policies and benefits for future JPA positions -$
Work with Project Team and Execs to determine staffing needs -$
Manage Recruitment for GM/Project Manager -$
Manage additional recruitments - TBD -$
**** All Tasks ****100 13,000.00$ 20,000.00$ 33,000.00$
Subtotal 100 13,000.00$ -$ 20,000.00$ 33,000.00$
Develop workplan for JPA engagement process 5 675.25$ **675.25$
Compare existing JPAs 1 135.05$ **135.05$
Develop draft documents 40 5,402.00$ 9,000.00$ 14,402.00$
Participate in engagement and negotiation meetings (10)50 6,752.50$ 15,000.00$ 21,752.50$
Support draft of JPA Administrative Services Agreement 5,000.00$ 5,000.00$
Subtotal 96 12,964.80$ -$ 29,000.00$ 41,964.80$
Coordinate and communicate with partners on financing needs -$
Research and evaluate options for securing "bridge" financing for launch
Draft and review documents -$
Make recommendation for which option(s) is most beneficial to the partnership -$
**** All Tasks ****100 15,000.00$ 15,000.00$
Subtotal 100 15,000.00$ -$ -$ 15,000.00$
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**** Placeholder ****100 12,500.00$ 12,500.00$
Subtotal 100 12,500.00$ -$ -$ 12,500.00$
Grand Totals 171,384.10$ 20,000.00$ 407,980.00$ 599,364.10$
** Consultant Costs for RWG for early tasks were funded through the Prior Cost Sharing agreement and associated budget; those costs are not repeated here.
Revised: 8/19/15, MT
Prepare for JPA Support Functions, incl: JPA Board admin (Meetings,
Agendas, Policies, Website); Accounting; Procurement
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SVCCEP Agmt - Att B Budget Rev 081915.xlsx Page 2 of 2 Printed 8/19/2015