HomeMy WebLinkAboutNorthern California Power Agency (NCPA) 2013-06-27 _
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i NORTHERN CALIFORNIA POWER AGENCY
AGREEMENT REGARDING THE USE AND
NON-DISCLOSURE OF INFORMATION
FOR NCPA PROJECTS i
WHEREAS, pursuant to NCPA project power sale agreements, associated operating I
agreements, facility agreements, and other applicable service agreements (collectively referred
to as "NCPA Project"), the Receiving Party, as a participant in one or more NCPA Projects, is I
entitled to receive certain Confidential Information from NCPA concerning the operation of
NCPA Projects in which it holds an entitlement share, expressed as either a generation
entitlement share or project participation percentage, to output from the NCPA Project; and I
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WHEREAS, NCPA intends to provide NCPA Project data, including Confidential '
Information, to the Receiving Party primarily through its Data Portal; and
WHEREAS, some of the Confidential Information provided includes data relating to the
Receiving Par[y's entitlement share or project participation percentage of the NCPA Project ,
including operations, bids and costs; and '
WHEREAS, the parties recognize that NCPA Project data designated as Confidential
Information has the potential to be misused for unlawful market purposes; and
WHEREAS, the parties have agreed to put procedures in place to prevent the use or
disclosure of the Confidential Information in a manner that might be construed to violate federal
or California law;
THEREFORE, in consideration of the mutual covenants in this Agreement, NCPA and the i
Receiving Party agree to contractual limits and protection concerning the disclosure and use of I
the Confidential Inforn�ation, as follows: I
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1. Purpose, Scope and Definition. The purpose of this Agreement is to permit the Receiving �I
Party to review and use the Confidential Information to which it is entitled pursuant to its ',
generation entitlement share or project participation percentage in an NCPA Project, for any
lawful purpose, subject to the restrictions on disclosure to Third Parties and uses set forth herein. '
Confidential Information under this Agreement consists of commercially sensitive information,
which may include, but is not limited to, price, quantity, location or timing of eleetric industry
marketing decisions, provided by NCPA to the Receiving Party, whe[her through the Data i
Por[al or otherwise, pertaining [o the Receiving Party's generation en[iflement share or project !I
participa[ion percentage in NCPA Projects. Except as otherwise provided in Paragraphs 4 and 5, �
Confidential Information includes: �
(a) All written materials marked "Confidential" or '"Proprietary" or"Sensitive" or other li
words of similar import provided by NCPA to the Receiving Party;
(b) All observaUOns of eyuipment or data, including computer screens, and oral disclosures
that are indicated as "ConfidentiaP' or"Proprietary" or"Sensitive" or other words of
similar import at the time of the observation or the disclosure; and
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(c) Notes, copies printouts or summaries of or regarding the Confidential Information I
prepazed by the Receiving Party or its employees, agents, consultants, attorneys or ,
members.
2. Non-Disclosure. Subjec[ to ParaQraph 4 below, the Receiving Party shall keep the I
Confidential Inforrnation in strict confidence and shall not disclose such information or
otherwise make it available, in any form or manner, to any other person or entity (a"Third
Party") other than its employees, agents, consultants, attorneys, or members who are reasonably
necessary to assist the Receiving Party with decisions regarding its interest in the NCPA
Project. Employees, agents, consultants, attorneys and members shall be classified as follows:
(a) Designated Reviewers are persons authorized by the Receiving Party Administrator to
access the Data Portal. The Receiving Party shall cause any such Designated Reviewer
who is an employee of the Receiving Party to execute Exhibit A to the Receiving Party's
Agreement prior to such employee receiving or viewing Confidential Information I
through the Data PoRal. The Receiving Party shall cause any such Designated Reviewer
who is a consultant of the Receiving Party to execute Exhibit B to the Receiving Party's
Agreement prior to such consultant receiving or viewing Confidential Information
through the Data Por[al. I
(b) Designated Recipients are persons who are not authorized to access the Data Portal, bu[ '
who are authorized to view Confidential Information from the Data Portal as paR of
their work in assisting the Receiving Party with decisions regarding its interest in the
NCPA Project. The Receiving Party shall cause any such Designated Recipient who is
an employee of the Receiving PaRy to review this Agreement and shall take such
measures as it deems prudent to ensure that the Designated Recipient understands bo[h
the Receiving Party's and his or her responsibilities with regard thereto. The Receiving �
Party shall cause any such Designated Recipient who is a consultant to execute Exhibit I
B to this Agreement prior to such consultant receiving or viewing Confidential
Information. I
(c) Decision Makers arc persons who are membcrs of the governing board, including, but '
not limited to, ciry council, goveming board, and utility commissions, of the Receiving �
Party, executives of the Receiving Party or attorneys for the Receiving Party who are
not authorized to access the Data Portal but who may review reports and
recommendations summarizing aggregated data that may be based on Confidential I
Information, in the course of making or approving decisions related to the Receiving I
Party's decisions about its NCPA Project interetts. The Receiving Party shall take such
measures as it deems prudent to ensure that Decision Makers understand the Receiving
Party's and their respo�sibilities with regard thereCO.
(d) A copy of each executed Exhibit A or B shall be provided to NCPA. I
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It is the ongoino responsibility of the Receiving Party to ensure that (i) each Exhibit A
and Exhibit B is accurate; (ii) each Exhibit A and Exhibit B permits access only to a current �
Designated Reviewer or Designated Recipient of the Receiving Party; (iii) each Designated
Recipient or Designated Reviewer receiving the Confidential Information understands the
scope of permissible use; and (iv) each new E�chibit A and Exhibit B, and any notice of �
cancellation of an Exhibit A or Exhibit B, is immediately submitted to NCPA. The Receiving �,
Party shall immediately repoR [o NCPA any unauthorized access to NCPA's Data Portal or �
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other breach of this Agreemen[. '
3. Use of Confidential Information. i
(a) It is understood and agreed by the Receiving Party that both parties have obligations under
federal and Califomia law to safeguard the Confidential Information against use or
disclosure for purposes inwnsistent with federal or California antitrust laws or for
puiposes of market manipulation. �I
(b) The Receiving Party may use the Confidential Information received hereunder for any
lawful purpose, provided that it does not disclose the Confidential Information to
Third Parties other than Designated Reviewers, Designated Recipients, or Decision
Makers as provided in Paragraph 2, and receives similar commitments as provided in
Paragraph 2. �i
(c) Receiving Party shall take all prudenC measures to ensure that iCS Designated Reviewers,
Designated Recipients and Decision Makers use the Confidential Information in
compliance with this Agreement and with all laws and regulations, and safeguard its
confidentiality. �
4. Exceptions to Non-Disclosure. Notwithstanding ParaQraph 2 above, a party to this
Agreement shall not have breached any obligation under this Agreement if the Confidential
Information is disclosed to a Third Party when the Confidential Information:
(a) was in the public domain at the time of such disclosure or is subsequently made available I
to the public consistent with the terms of this Agreement; or
(b) had been received by the Receiving Party prior to the time of disclosure through other
means without restriction on its use, or had been independently developed by the
Receiving Party without use of Confidential Information, as demonstrated through �
documentation; or ,
(c) is subsequently disclosed to the Receiving PaRy by a Third Party without restriction on
use imposed by the Third Party and without breach of any law, agreement or legal duty
to the Third Party; or '�
(d) subject to the provisions of Para ra h 5, is used or disclosed pursuant to statu[ory duty or �
an order, subpoena or other lawful process issued by a court or other governmental
authority of competent jurisdiction.
5. Notice of Pending Third Partv Disclosure.
(a) In the event that a court or other governmental authoriry of competent jurisdiction issues
an order, subpoena or other lawful process requiring the disclosure of the Confidential
[nformation, the Receiving Party shall notify NCPA immediately upon receipt thereof to
allow NCPA to be involved in such proceeding for the purpose of safeguazding the
Confidential Information. �
(b) In the event that the Receiving Pazty is a federal, state, or local governmental entity
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and/or is subject to public records law or regulation, including but not limited to the
federal Freedom of Information Act (FOIA), U.S. Code Title 5, Section 552, as
amended, or the California Public Records Act, California Governmental Code Sections
i 6250, et seq., the Receiving Party shall: (i) notify NCPA immediately upon receipt oP a
request for public records that include all or part of the Confidential Inforrnation; and
(ii) subject to sub-paragraph (c), treat the requested Confidential Information as exempt
from disclosure.
(c) The Receiving Party shall not be in violation of this Agreement if it complies with an �
order of a coun or governmental authority, or a public records law or regulation, 'I
requiring disclosure of the Confidential Information, after. (i) NCPA has unsuccessfully I
sought to maintain the confidentiality of such information as provided herein; (ii) NCPA
has notified the Receiving Party in writing that it will take no action to maintain such
confidentiality; or (iii) counsel for the Receiving Party has determioed that disclosure is
required under a public records law or regulation, the counsel for the Receiving Party has !
provided NCPA with three (3) business days written notice of such determination, and
NCPA has not responded or sought an order restraining disclosure within such time
period.
6. Term. '
(a) This A�reement shall remain in effect unless and until NCPA provides ten(10) davs prior
written notice to the Receiving Party of its cermination. Termination shall not extineuish
anv claim, liability or cause of uclion under this A�reement existinQ at the time of �
termination.
(b) Provisions Survivine Termination. The provisions of Para¢raphs 2, 3, 4, and 5 shall
survive the tennination of this Agrcement for a period of five(5) years.
(c) Destruction of Documents. Nothing in this Agreement shall prevent the Receiving Party
from otherwise lawful dcstruction of documents or files containing Confidential
Information in the ordinary course of business, provided that the method of destruction
safeguards the Confidential Information.
7. Notices.
(a) AdminisCrator(s) for Data Portal Access. Receiving Party shall designate one (1) person
to act as Administrator on its behalf, and shall provide the name, street address, I
telephone number, facsimile number and email address of such Administrator to '
NCPA's Representative designated under sub-paragraph (b) prior to Receiving Party
, being granted access to the Data Portal. Either party may change the identity of its
Administrator or the address for notice to its Administrator by providing notice to the
other.
, The Receiving Party's Administrator shall administer access to the DaCa Portal on behalf I
of Receiving Party's employees, agents, consultants, atCOmeys or ineinbers, including i
but not limited to making requests for new user aceounts, maintenance and I
administration of existing user accounts, and administra[ion of digital security �
certificates. NCPA's Administrator shall administer on behalf of NCPA all such
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requests by Receiving Party's Administrator.
All communications, pursuant to this sub-paragraph, from Receiving Party's
Administratoi to NCPA's Administrator shall be in writing, via email, to the following
address: dataportaladmin@ncpa.com.
(b) Representatives and Addresses. All notices, requests, demands, and other
communications required or permitted under this Agreement other than those between
Administrators shall be in writing and shall be either: (i) deliveied in person; (ii) sent by
U.S. certified mail, postage prepaid; or(iii) sent by overnight delivery; addressed as
follows:
Receiving Party:
Entity Name: Citv of Ukiah
Name oF ConCact (person or position):
Mel Grandi. Electric Utilitv Director
Address: 300 Seminarv Ave.. Ukiah. CA 95482
Telephone: (7071463-6295
Facsimile: (7071463-6740
Email: merandi@ciryofukiah.com
NCPA:
Dave Dockham
NCPA Assistant General Manager
651 Commerce Drive
Roseville, CA 95678-6411
Phone: 916.7813636
Fax: 916.783.7693
and I
Michael Dean
NCPA General Counsel
555 Capitol Mall, Suitc 1200
Sacramento, California 95814
Phone: 916.556.1531
Fax: 916.556.1516
Changed Representatives and Addresses. A party hercto may from time to time change
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its representative or address for [he purpose of notices to that par[y by notice specifying a
new representative or address. !
(c) Effective Date of Notices. All notices and other communications required or permitted
under this Agreement that are addressed as provided in this Paragraph 7 shall be
effective upon delivery.
8. Complete Aereement; No Other Rights•
(a) This Agreement contains the complete and exclusive agreement of the parties with
respect to the subject matter thereof, and supersedes all discussions, negotiations,
representations, warranties, commitments, offers, contracts, and writings prior to the date I
of this Agreement, with respect to its subject matter. No change to this Agreement shall
be effective unless agreed to in writing by the parties hereto. Any conflict between the
language of this Agreement and any mark, stamp, annotation or other language I
identifying something received hereunder as Confidential Information shall be resolved I
in favor of this Agreement.
(b) This A�reement is not intended to create any right in or obligation of any party or Third
Party other than those expressly stated herein.
9. No Warranties or Representations. Any Confidential Information disclosed by NCPA
under this Agreement carries no warranty or representation of any kind, ei[her express or implied.
The Receiving PaRy shall not be entided to rely on the accuracy, completeness or quality of the
Confidential Information, even for the purpose stated in Para�raph 1.
]0. Injunctive Relie£ The Receivin� Party agrees that, in addition to whatever other
remedies may be available to NCPA under applicable law, NCPA shall be entitled to obtain
injunetive relief with respect to any actual or threatened violation of this Agreement by the
Receiving Party, its Designated Recipients or�ny Third Party to whom Receiving Party
disdosed Confidential Information. The Receiving Party agrees that it shall bear all costs and
expenses, including reasonable attorneys' fees, that may be incuned by NCPA in enforcing the
provisions of this paragraph, only if NCPA prevails in the litigation.
1 1. Governing Law• This Agreement is made in the State of Califomia and shall be governed
by and interpreted in accordance with its laws.
I 12. Assignment• This Agreement shall be binding upon the parties, their successors, and
assigns. The Receiving Party shall not assign this Agreement without NCPA's prior written
consent.
13. Construction of AQreement Ambiguities or uncertainties in the wording of this '
Agrcement shall not be construed for or against any party, but shall be construed in [he mamier
that most accurately reflects the parties' intent as of the date they executed this Agreement.
14. SiQnature Authoritv. Each person signing below warran[s that he or she has been duly
authorized by the party for whom he or she signs to execute this Agreement on behalf of that
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' 15. Counterparts. This Agreement may be executed in two or more counterparts, all of I
which shall be considered one and the same Agreement. i
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' IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized
representatives as of the date set forth above.
NORTHERN CALIFORNIA POWER AGENCY
By:
Name: Jim Pope
Tide: General Manager
, Date:
RECEIVING PARTY:
Citv of Ukiah j�
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Name;��e Chambers I
Title:� �City Manager I
Date: /��? 7//�'
AttesL i
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Kristine Lawler, City Clerk
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APPROVED AS TO FORM: I
DAVID RAPPORT, City Attomey I
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EXHIBIT A
INDIVIDUAL AGREEMENT TO BE BOUND BY NON-DISCLOSURE AND I
USE OF INFORMATION AGREEMENT FOR NCPA PROJECTS I
The undersigned, (print or type name), ��I
employed as (title) by the Receiving Party, I
, hereby acknowledges that he or she in his/her official �
capacity has received a copy of the NORTHERN CALIFORNIA POWER AGENCY
AGREEMENT REGARDING THE USE AND NON-DISCLOSURE OF INFORMATION
FOR NCPA PROJECTS in which the Receiving Party, , has
an entitlement interest, dated between the Northern California Power i
Agency and the Receiving Party designated therein ("Agreement"). The undersigned hereby I
acknowledges that the undersigned has read the Agreement and understands the importance '
of maintaining [he confidentiality of Confidential Information (as defined in the
Agreement), the provisions of the Agreement relating to such confidentiality, and the �
limitations on the use of Confidential Information. [n consideration thereof, the undersigned
agrees to be bound by all of the provisions of the Agreement.
Dated:
Signed:
Print Name: '�
Telephone: ���
Email:
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EXHIBIT B
CONSULTANTSTATEMENT FOR I
NON-DISCLOSURE AND USE OF INFORMATION AGREEMENT FOR NCPA I
PROJECTS I
Name of Consu]ting Entity: �
Type of business and state in which business organization is formed (e.g. a California
corporation): ��
Located At
(address of Consulting Entity): I
Has been engaged to provide technical suppoR and analysis to the following entity: II
Consulting Entity hereby acknowledges that it has received a copy of the
NORTHERN CALIFORNIA POWER AGENCY AGREEMENT REGARDING THE USE
AND NON-DISCLOSURE OF INFORMATION FOR NCPA PROJECTS in which the
Receiving Party, , has an entitlement interest, dated �
between the Northern California Power Agency and the
Receiving Party designated therein ("Agreement"). Consulting Entity hereby acknowledges �
and agrees that in order to access Confidential Information (as defined in the Agreement), '��
Consulting Entity must comply with the provisions of the Agreement, and it agrees to do so. �
Consulting Entity acknowledges and agrees [hat its review of Confidential
Information is solely for the purpose of providing consultancy services to the Receiving �
Party and that its use of Confidential Information shall be limited to the same. To the extent '
that Consulting Entity provides technical support and analysis to parCies who are not party
to this Agreement, Consulting Entity agrees that disclosure of Confidential [nformation to
such parties is prohibited by the terms and conditions of the Agreement.
The undersigned agrees that he or she is authorized by the Consulting Entity to
execute this Consultant Statement to the Agreement.
Dated:
Consulting Entity:
By: (signature) �
Print Name: ,
Telephone: i
Email:
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