Resolution No. 8841
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RESOLUTION NO. 8841
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON (i) APPROVING AND AUTHORIZING THE ACTING
DIRECTOR OF LIGHT & POWER, THE CITY ATTORNEY AND
THE ACTING FINANCE DIRECTOR TO ENTER INTO VARIOUS
CONTRACTS FOR THE PURCHASE AND SALE OF ELECTRIC
ENERGY AND NATURAL GAS BY AND BETWEEN THE CITY AND
VENDOR(S) FOR PERIODS FROM ONE DAY TO FIFTEEN
YEARS; AND (ii) AUTHORIZING THE ISSUANCE OF REQUEST
FOR PROPOSAL FOR THE PURCHASE AND/OR SALE OF
ELECTRIC ENERGY AND NATURAL GAS
10 WHEREAS, the City's Malburg Generating Station is to commence
11 commercial operation on September 15, 2005; and
12 WHEREAS, the City of Vernon is in the process of developing a
13 800 MW Combined Cycle Power Plant officially named the Vernon Power
14 Plant for the purpose of installing additional generating capacity that
15 will yield an efficient, cost-effective, and reliable source of
16 electric generation to the City of Vernon; and
17 WHEREAS, the City has constructed a natural gas distribution
18 system served at two locations (Bandini/Downey and Fruitland/Downey)
19 from SoCalGas Transmission Line 756 and two regulator stations are
20 located at the two locations to distribute gas from the transmission
21 system into the distribution system located in the City; and
22 WHEREAS, the City anticipates entering into various contracts
23 for the purchase and sale of electric energy and natural gas with
24 various vendors for periods from one day to fifteen years; and
25 WHEREAS, the City Council desires to permit certain employees
26 of the City to purchase and sell electric energy and natural gas and
27 enter into agreements for said service, subject to ratification of the
28 City Council; and
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1 WHEREAS, this authorization will provide for the smooth,
2 effective and efficient administration of energy resources and enhance
3 the operation of the Light and Power Department; and
4 WHEREAS, the City of Vernon is interested in obtaining
5 proposals from qualified vendors for the purchase and/or sale of
6 electric energy and natural gas; and
7 WHEREAS, the Acting Director of Light and Power has requested
8 the issuance of the Request for Proposal for the Purchase and/or Sale
9 of Electric Energy and Natural Gas ("RFP") pursuant to Section 2.29-2
10 of the Vernon City Code; and
11 WHEREAS, the City Council of the City of Vernon has
12 determined that, pursuant to the provisions of subsection (a) of
13 Section 2.Z7 of the Vernon City Code, it is in the public interest and
14 necessity to enter into the various contracts with vendor(s) for the
15 purchase and sale of electric energy and natural gas.
16 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
17 CITY OF VERNON AS FOLLOWS:
18 SECTION 1: The City Council of the City of Vernon hereby
19 finds and determines that the recitals contained hereinabove are true
20 and correct.
21 SECTION 2: The City Council of the City of Vernon hereby
22 directs the Acting City Clerk, or his designee, to issue the RFP, a
23 copy of which is attached hereto as Exhibit A and incorporated by
24 reference, to one or more qualified vendors.
25 SECTION 3: The City Council of the City of Vernon hereby
26 authorizes the Acting Director of Light and Power, the Acting Finance
27 Director and the City Attorney of the City, as a group, to enter into
28 purchase and/or sale contracts with various vendors for periods of one
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1 day to fifteen years, subject to ratification by the City Council. No
2 one person can enter into said contracts.
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SECTION 4:
The Acting Director of Light and Power, the
4 Acting Finance Director, and the City Attorney, or their designee, may
5 enter into purchase and/or sale contracts with various vendors for up
6 to one (1) year.
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SECTION 5:
The City Council of the City of Vernon hereby
8 authorizes the Acting City Clerk, or his designee, to make whatever
9 nonsubstantive and administrative changes, upon advice of counsel, to
10 the RFP, energy sales bid, financial qualifications and certificates,
11 and all other documents necessary to carry out the intent of this
12 Resolution.
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SECTION 6:
The Acting City Clerk of the City of Vernon
14 shall certify to the passage of this resolution, and thereupon and
15 thereafter the same shall be in full force and effect.
16 APPROVED AND ADOPTED this 7th day of September, 2005.
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22 BRUCE V. MALKENHORST, JR.,
Acting City Clerk
ATTEST:
~7<d~.
,/ LEONIS C. 'MA . URG, Mayor
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1 STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8841, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, Se~tember 7, 2005, and thereafter was duly signed by the
Mayor of the City of Vernon.
BRUCE V. MALKENHORST, JR.,
Acting City Clerk
(SEAL)
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EXHIBIT
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APPENDIX A
BID REQUIREMENTS
FOR
FINANCIAL QUALIFICADONS
Each Bidder must submit a Financial Certificate (Form 1 in Appendix A), signed by an
officer of the bidding firm who is authorized to bind the finD to its proposal. The
Financial Certificate requires the Bidder to certify that it meets one of the following
three criteria.
1.0 The bidding firm has either attained (a) a corporate bond rating of BBB or
higher from at least two rating agencies, one of which should be Mooclis
Investors Service ("Moody's") or Standard & Poor's ("S&plI);. or (b) a commercial
paper rating of 1 or 2 from at least two rating agencies, one of which should be
Moody's or S&P;
2.0 The bidding firm has not been rated by any national rating agency and shall
submit documentary evidence of its ability to deliver an executed Counterparty
Guarantee Agreement (Form 2 in Appendix A) from a firm that has satisfied the
rating requirements descnbed in 1.0 above.
3.0 The bidding firm is a government agency or public body, has excess resources,
has not been rated by any national rating agency and shall submit audited
financial statements, or other equivalent, for the last three years.
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NOTE TO ALL BIDDERS: The -Hta;tk.s Department reserves the right to exercise its
complete discretion and business judgment on qualifying bidders within any. of the
above three criteria.
F3:FORM.1.DOC
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2,. DEMANDS AND NOTICE. If Company fails or refuses to pay any
Obligations, the Guaranteed Party may make a demand upon Guarantor (hereinafter
referred to as a "Payment Demand"), A Payment Demand shall be in writing and shall
reasonably and briefly specify in what manner and what amount Company bas failed to
pay and an explanation of why such payment is due. with a specific statement that the
Guaranteed Party is calling upon Guarantor to pay under this Guarantee. A Payment
Demand satisfying the foregoing requirements shall be deemed sufficient notice to
Guarantor that it must pay tbe Obligations. A single written Payment Demand shall be
effective as to any specific default during the continuance of such default, until Company
or Guarantor has cured such default, and additional Payment Demands concerning such
default shall not be required until such default is cured.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants that:
(a) it is a corporation duly organized and validly existing under the laws of the
State of [ ] and has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Guarantee;
(b) no authorization, approval, consent or order of, or registration or filing
with, any court or other governmental body having jurisdiction over Guarantor is
required on the part of Guarantor for the execution and delivery of this Guarantee; and
(c) this Guarantee constitutes a valid and legally binding agreement of
Guarantor enforceable against Guarantor in accordance with its terms, except as the
enforceability of this Guarantee may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and by general principles of equity.
4. EFFECT OF BANKRUPTCY BY CQMPANY. The Guarantor's
obligation to pay under this Guarantee shall not be affected in any way by the institution
with respect to the Company of a bankruptcy, reorganization, moratorium or similar
insolvency proceeding or other relief under any bankruptcy or insolvency law affecting
creditor's rights or a petition for the Company's winding-up or liquidation.
5. AME~MmIT. No term or provision of this Guarantee shall be
amended, modified, altered, waived, or supplemented except in a writing signed by the
Guarantor and Guaranteed Party hereto.
6. WAIVERS. Guarantor hereby waives (a) notice of acceptance of this
Guarantee; (b) presentment and demand concerning the liabilities of Guarantor, except
as expressly hereinabove set forth; and ( c) any right to require that any action or
proceeding be brought against Company or any other person, or except as expressly
hereinabove set fo~ to require that the Guaranteed Party seek enforcement of any
performance against Company or any other person, prior to any action against Guarantor
under the terms hereof.
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Except as to applicable statutes of limitation, no delay of the Guaranteed Party in
the exercise of, or. failure to exercise, any rights hereunder shall operate as a waiver of
such rights, a waiver of any other rights or a release. of Guarantor from any obligations
hereunder.
Guarantor consents to the renewal, compromise, extension, acceleration or other
changes in the time of payment of or other changes in the terms of the Obligations, or
any part thereof or any changes or modifications to the terms of the Agreements.
Guarantor may terminate this Guarantee by providing written notice of such
termination to the Guaranteed Party and upon the effectiveness of such termination,
Guarantor shall have no further liability hereunder, except as provided in the last
sentence of this paragraph. No such termination shall be effective until fifteen (15)
Business Days after receipt by the Guaranteed Party of such termination notice. No
such termination shall affect Guarantor's liability with respect to any obligations arising
under any transaction entered into prior to the time. the termination is effective, which
transaction shall remain guaranteed pursuant to the terms of this Guarantee.
7. ASSIGNMENT. The Guarantor shall not assign this Guarantee without
the express written consent of the Guaranteed Party. The Guaranteed Party shall be
entitled to assign its rights under this Agreement in its sole discretion.
8. NOnCE. Any Payment Demand, to the Guaranteed Party or the
Guarantor notice, request, instruction, correspondence or other document to be given
hereunder by any party to another (herein collectively called "Notice") shall be in writing
and delivered personally or mailed by certified mail, postage prepaid and return receipt
requested, or by telegram or telecopier, as follows:
To
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Bruce V. Malkenhorst
Fax No.: (323) 581-7924
To Guarantor:
Attn:
Fax No.: <" )
Notice given by personal delivery or mail shall be effective upon actual receipt.
Notice given by telegram or telecopier shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the recipient's next
business day after receipt if not received during the recipient's normal business hours.
All Notices by telegram or telecopier shall be confirmed promptly after transmission in
writing by certified mail or personal delivery. Any party may change any address to
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which Notice is to be given to it by giving notice as provided above of such change of
address.
8. MISeR'rl.ANROIJS. THIS GUARANTEE SHAlL IN AU. RESPECTS
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WInI, 1HE lAWS
OF 1HE STATE OF CAliFORNIA, WITHOUT REGARD TO PRINCIPLES OF
CONFUcrs OF LAWS. This Guarantee shall be binding upon Guarantor, its
successors and assigns and inure to the benefit of and be enforceable by the Guaranteed
Party, its successors and assigns. The Guarantee embodies the entire agreement and
understanding between Guarantor and the Guaranteed Party and supersedes all prior
agreements and understandings relating to the subject matter hereof. The headings in
this Guarantee are for purposes of reference only, and sball not affect the meaning
hereof. This Guarantee may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
EXECUTED as of the day and year first above written.
[
By:
Name:
Title:
F3:FORM.2.DOC
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APPENDIX A
FORM 1
FINANCIAL CERTIFICATE
The Bidder hereby certifies that all of the statements and representations made in this
Financial Certificate are true and correct to the best of the Bidder's knowledge and
belief. The Bidder hereby certifies that: (initial one)
1.0
Its corporate bonds/commercial paper is rated BBB/1 or 2 by Moody's
Investors ServicelStandard & Poors rating agency.
2.0 It is a government agency or public body, it has excess resources; has not
been rated by any national rating agency and hereby submits its audited
financial statements for the last three most current years for the years
ending
3.0 It is a private firm, has not been rated by any national rating agency and
hereby submits an executed writing of its ability to deliver a Counterparty
Guarantee Agreement from a Guarantor who has satisfied the rating
. requirements descnbed in 1.0 above upon approval of its fmal bid to the
City of Vernon.
Submitted by:
. (exact legal name of fIrm)
Bidder:
(if different than above)
Signature of an officer of Bidder:
Print or type name of officer:
Title:
Date signed:
F3:FORM.1.DOC
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APPENDIX A
FORM 2
COUNTERPAR1Y GUARANTEE AGREEMENT
This Guarantee Agreement (this "Guarantee"), dated, as of [
2000, is made and entered into by [ ], a [
corporation ("Guarantor").
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WITNESSETH:
WHEREAS, [ ] (the "Company") may enter into transactions
involving power sales under the Western Systems Power Pool ("WSPP Agreement") and
related confirmation agreements (collectively "Agreements") with the City of Vernon,
California ("Guaranteed. Party"); and
WHEREAS, Guarantor will directly or indirectly benefit from the Agreements.
NOW THEREFORE, in consideration of the Guaranteed Party agreeing to
conduct business with Company, Guarantor hereby covenants and agrees as follows:
1. GUARANTY. Subject to the provisions hereof, Guarantor hereby
irrevocably and unconditionally guarantees the timely payment when due of the
obligations of Company (the "Obligations.') to the Guaranteed Party in accordance with
the Agreements. If Company fails to pay any Obligations, Guarantor shall promptly pay
to the Guaranteed Party no later than the next Business Day (as defined in the WSPP
Agreement), after notification, the amount due in the same currency and manner
provided for in the Agreements. This Guarantee shall constitute a guarantee of payment
and not of collection. Guarantor shall have no right of subrogation with respect to any
payments it makes under this Guarantee until all of the Obligations of Company to the
Guaranteed Party are paid in full. The liability of Guarantor under the Guarantee shall
be subject to the following:
(a) Guarantor's liability hereunder shall be and is specifically limited to .
payments expressly required to be made in accordance with the Agreements (even if
such payments are deemed to be damages) and, except to the extent specifically provided
in the Agreements, in no event shall Guarantor be subject hereunder to consequential,
exemplary, equitable, loss of profits, punitive, tort, or any other even if such fees together
with the payments exceed the cap in Section 1(b), damages, costs, except that Guarantor
shall be required to pay reasonable attorney fees.
(b) The aggregate liability of the Guarantor shall not exceed [
U.S. Dollars [ ].
] Million
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