HomeMy WebLinkAboutAgenda Report - May 1, 2013 C-19AGENDA ITEM C40 tot
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt Resolution Approving the Northern California Power Agency Agreement
Regarding the Use and Non -Disclosure of Information for NCPA Projects and
Authorizing Execution by the City Manager
MEETING DATE: May 1, 2013
PREPARED BY: Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution approving the Northern California Power Agency
Agreement Regarding the Use and Non -disclosure of Information for
NCPA Projects and authorizing execution by the City Manager.
BACKGROUND INFORMATION: As a signatory to the NCPA Joint Powers Agreement and various
NCPA generation project and service agreements, the City receives
and NCPA provides a number of services that require the creation
and administration of a wide range of commercially sensitive data and information. Through its
participation in various NCPA services, the City is entitled to access this commercially sensitive data and
information that pertains to the City's participation share of said services.
NCPA, acting under direction from the NCPA Commission, has collaborated with its members to create
the attached NDA. The NDA is a means for NCPA and its members to supplement their "cultures of
compliance" by: (i) formally acknowledging the commercially sensitive nature of the data and information
NCPA creates and manages, (ii) formally acknowledging the prohibition and restrictions on sharing
commercially sensitive data and information with third parties under applicable law, and (iii) mutually
agreeing to treat commercially sensitive data and information as "Confidential Information" to the extent
allowed under law.
The NDA will require administrative during its term. The City will need to select and maintain one staff
person to act in an administrative role to coordinate all communications between the City and NCPA
relating to the City's access to NCPA's secured web service (i.e. Data Portal). This activity would involve
requesting access for new users, modifying access privileges for existing users, or deactivating user
accounts. The NDA contains two exhibits. Exhibit A is to be signed by each employee of the City that
accesses the Data Portal directly. Exhibit B is to be signed by each employee of a consultant under
contract with the City that receives NCPA Confidential Information, either directly or indirectly.
FISCAL IMPACT: No additional funding is required.
FUNDING AVAILABLE: Not applicable.
iz e h A. Rirkley
Electric Utility Director
EAK/MF/Ist
Bartlam, City Manager
NORTHERN CALIFORNIA POWER AGENCY
AGREEMENT REGARDING THE USE AND
NON -DISCLOSURE OF INFORMATION
FOR NCPA PROJECTS
WHEREAS, pursuant to NCPA project power sale agreements, associated operating
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
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
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 Party'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
Receiving Party agree to contractual limits and protection concerning the disclosure and use of
the Confidential Information, as follows:
1. Purpose, Scope and Definition. The purpose of this Agreement is to permit the Receiving
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 electric industry
marketing decisions, provided by NCPA to the Receiving Party, whether through the Data
Portal or otherwise, pertaining to the Receiving Party's generation entitlement share or project
participation 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
words of similar import provided by NCPA to the Receiving Party;
(b) All observations of equipment or data, including computer screens, and oral disclosures
that are indicated as "Confidential" or "Proprietary" or "Sensitive" or other words of
similar import at the time of the observation or the disclosure; and
(c) Notes, copies printouts or summaries of or regarding the Confidential Information
prepared by the Receiving Party or its employees, agents, consultants, attorneys or
members.
2. Non -Disclosure. Subject to Paragraph 4 below, the Receiving Party shall keep the
Confidential Information 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
through the Data Portal. 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 Portal.
(b) Designated Recipients are persons who are not authorized to access the Data Portal, but
who are authorized to view Confidential Information from the Data Portal as part 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 Party to review this Agreement and shall take such
- --measures as it deems prudent to ensure that the Designated Recipient understands both
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
B to this Agreement prior to such consultant receiving or viewing Confidential
Information.
(c) Decision Makers are persons who are members of the governing board, including, but
not limited to, city council, governing 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
Information, in the course of making or approving decisions related to the Receiving
Party's decisions about its NCPA Project interests. The Receiving Party shall take such
measures as it deems prudent to ensure that Decision Makers understand the Receiving
Party's and their responsibilities with regard thereto.
(d) A copy of each executed Exhibit A or B shall be provided to NCPA.
It is the ongoing 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 Exhibit 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 report to NCPA any unauthorized access to NCPA's Data Portal or
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other breach of this Agreement.
3. Use of Confidential Information.
(a) It is understood and agreed by the Receiving Parry that both parties have obligations under
federal and California law to safeguard the Confidential Information against use or
disclosure for purposes inconsistent with federal or California antitrust laws or for
purposes of market manipulation.
(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.
(c) Receiving Party shall take all prudent measures to ensure that its 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 Paragraph 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
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 Parry without use of Confidential Information, as demonstrated through
documentation; or
(c) is subsequently disclosed to the Receiving Party by a Third Party without restriction on
use imposed by the Third Parry and without breach of any law, agreement or legal duty
to the Third Party; or
(d) subject to the provisions of Paragraph 5, is used or disclosed pursuant to statutory 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 Party Disclosure.
(a) In the event that a court or other governmental authority of competent jurisdiction issues
an order, subpoena or other lawful process requiring the disclosure of the Confidential
Information, the Receiving Parry shall notify NCPA immediately upon receipt thereof to
allow NCPA to be involved in such proceeding for the purpose of safeguarding the
Confidential Information.
(b) In the event that the Receiving Party 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
6250, et seq., the Receiving Party shall: (i) notify NCPA immediately upon receipt of a
request for public records that include all or part of the Confidential Information; and
(ii) subject to sub -paragraph (c), treat the requested Confidential Information as exempt
from disclosure.
(c) The Receiving Parry shall not be in violation of this Agreement if it complies with an
order of a court or governmental authority, or a public records law or regulation,
requiring disclosure of the Confidential Information, after: (i) NCPA has unsuccessfully
sought to maintain the confidentiality of such information as provided herein; (ii) NCPA
has notified the Receiving Parry in writing that it will take no action to maintain such
confidentiality; or (iii) counsel for the Receiving Parry has determined 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 Agreement shall remain in effect unless and until NCPA provides ten (10) dasprior
written notice to the Receiving Party of its termination. Termination shall not extinguish
M claim, liability or cause of action under this Agreement existing at the time of
termination.
(b) Provisions Surviving Termination. The provisions of Paragraphs 2, 3, 4, and 5 shall
survive the termination of this Agreement for a period of five (5) years.
(c) Destruction of Documents. Nothing in this Agreement
shall prevent the Receiving Party from otherwise
lawful destruction 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) Administrator(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,
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 parry 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 Data Portal on behalf
of Receiving Parry's employees, agents, consultants, attorneys or members, including
but not limited to making requests for new user accounts, maintenance and
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administration of existing user accounts, and administration of digital security
certificates. NCPA's Administrator shall administer on behalf of NCPA all such
requests by Receiving Party's Administrator.
All communications, pursuant to this sub -paragraph, from Receiving Party's
Administrator to NCPA's Administrator shall be in writing, via email, to the following
address: dataportaladmingncpa.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) delivered in person; (ii) sent by
U.S. certified mail, postage prepaid; or (iii) sent by overnight delivery; addressed as
follows:
Receiving Party:
Entity Name: CITY OF LODI
Name of Contact (person or position):
Elizabeth Kirkley, Electric Utility Director
Address: 1331 South Ham Lane Lodi CA 95242
Telephone: 209-333-6828
Facsimile: 209-333-6839
Email: ekirkleyklodielectric.com
NCPA:
Dave Dockham
NCPA Assistant General Manager
651 Commerce Drive
Roseville, CA 95678-6411
Phone: 916.781.3636
Fax: 916.783.7693
and
Michael Dean
NCPA General Counsel
555 Capitol Mall, Suite 1200
Sacramento, California 95814
Phone: 916.556.1531
Fax: 916.556.1516
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Changedpresentatives and Addresses. A party hereto may from time to time change
its representative or address for the purpose of notices to that party 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 Agreement; 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
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
identifying something received hereunder as Confidential Information shall be resolved
in favor of this Agreement.
(b) This Agreement is not intended to create any right in or obligation of any party or Third
Parry 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, either express or implied.
The Receiving Party shall not be entitled to rely on the accuracy, completeness or quality of the
Confidential Information, even for the purpose stated in Paragraph 1.
10. Injunctive Relief. The Receiving Party agrees that, in addition to whatever other
remedies may be available to NCPA under applicable law, NCPA shall be entitled to obtain
injunctive relief with respect to any actual or threatened violation of this Agreement by the
Receiving Party, its Designated Recipients or any Third Party to whom Receiving Party
disclosed Confidential Information. The Receiving Party agrees that it shall bear all costs and
expenses, including reasonable attorneys' fees, that may be incurred by NCPA in enforcing the
provisions of this paragraph, only if NCPA prevails in the litigation.
11. Governing Law. This Agreement is made in the State of California and shall be governed
by and interpreted in accordance with its laws.
12. Assignment. This Agreement shall be binding upon the parties, their successors, and
assigns. The Receiving Parry shall not assign this Agreement without NCPA's prior written
consent.
13. Construction of Agreement. Ambiguities or uncertainties in the wording of this
Agreement shall not be construed for or against any party, but shall be construed in the manner
that most accurately reflects the parties' intent as of the date they executed this Agreement.
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14. Signature Authority. Each person signing below warrants 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
ply.
15. Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same Agreement.
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
Title: General Manager
Date:
RECEIVING PARTY:
CITY OF LODI
By:
Name: Kondradt Bartlam
Title: City Manager
Date:
Attest:
RANDI JOHL
City Clerk
APPROVED AS TO FORM:
D. STEPHEN SCHWABAUER, City Attorney
JANICE D. MAGDICH, Deputy City Attorney
us
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EXHIBIT A
INDIVIDUAL AGREEMENT TO BE BOUND BY NON -DISCLOSURE AND
USE OF INFORMATION AGREEMENT FOR NCPA PROJECTS
The undersigned, (print or type name),
employed as (title) by the Receiving Party,
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
Agency and the Receiving Party designated therein ("Agreement"). The undersigned hereby
acknowledges that the undersigned has read the Agreement and understands the. importance
of maintaining the 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. In consideration thereof, the undersigned
agrees to be bound by all of the provisions of the Agreement.
Dated:
Signed:
Print Name:
Telephone:
Email:
EXHIBIT B
CONSULTANT STATEMENT FOR
NON -DISCLOSURE AND USE OF INFORMATION AGREEMENT FOR NCPA
PROJECTS
Name of Consulting Entity:
Type of business and state in which business organization is formed (e.g. a California
corporation):
Located At
(address of Consulting Entity):
Has been engaged to provide technical support and analysis to the following entity:
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 that 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 parties who are not party
to this Agreement, Consulting Entity agrees that disclosure of Confidential Information 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:
Email:
2025232.1
RESOLUTION NO. 2013-84
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO APPROVE AND ADOPT THE
NORTHERN CALIFORNIA POWER AGENCY (NCPA)
AGREEMENT REGARDING THE USE AND NON -DISCLOSURE
OF INFORMATION FOR NCPA PROJECTS
WHEREAS, the City of Lodi (City) is a signatory to the Northern California Power
Agency (NCPA) Joint Powers Agreement and is a member of NCPA; and
WHEREAS, the City is a participant in several NCPA generation projects and is a
signatory to NCPA service agreements; and
WHEREAS, in providing services to the City, NCPA creates and manages data and
information that is of a commercially sensitive nature as defined and as practiced under various
Federal and California laws and regulations; and
WHEREAS, the City is entitled to access and use data and information directly
attributable to its proportionate participation share of NCPA generation and services; and
WHEREAS, NCPA makes this data available via a secured web -service commonly
referred to as the NCPA Data Portal and through other means; and
WHEREAS, City staff has established individual user accounts to the NCPA Data Portal
and has access to commercially sensitive data and information; and
WHEREAS, the information accessed via the NCPA Data Portal is vital to the business
operations and financial accounting practices of the City; and
WHEREAS, NCPA, under the direction of its governing board, has adopted and
approved The NCPA Agreement Regarding the Use and Non -Disclosure of Information for
NCPA Projects (NDA) to contractually facilitate future access to the NCPA Data Portal and
commercially sensitive data and information by its Members' staff and consultants; and
WHEREAS, NCPA, under the direction of its governing board, will not make
commercially sensitive data and information available absent a fully executed non -disclosure
agreement effective July 1, 2013; and
WHEREAS, executing the NDA would facilitate continued access to commercially
sensitive data and information and mitigate potential service interruptions; and
WHEREAS, the NDA would require the City to establish one staff person to act in an
administrative role whose duties would include establishing new users, modifying user account
privileges, annually renewing accounts, and deactivating user accounts; and
WHEREAS, the NDA would require that each City employee that directly accesses the
NCPA Data Portal to sign Exhibit A to the NDA.
WHEREAS, the NDA would require that each individual employed by a consultant under
contract with the City that works with or otherwise receives commercially sensitive data or
information related to NCPA Projects, as defined in the NDA, whether accessed directly or
indirectly, to sign Exhibit B to the NDA; and
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby:
1. Adopt and approve the NDA by and between the City and the Northern California
Power Agency (NCPA); and
2. Delegate authority to the City Manager to execute the NDA on behalf of the City;
and
3. Delegate authority to the Electric Utility Director, or his/her designee, to select a
Data Portal Administrator and update this selection as needed; and
4. Direct staff to evaluate access to the NCPA Data Portal and users of confidential
information and execute the appropriate NDA Exhibits; and
5. Direct staff to evaluate the need to develop internal policies and procedures in
accessing and using Confidential Information, as defined in the NDA.
Dated: May 1, 2013
I hereby certify that Resolution No. 2013-84 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held May 1, 2013, by the following vote:
AYES: COUNCIL MEMBERS — Hansen, Katzakian, Mounce, and Mayor Nakanishi
NOES: COUNCIL MEMBERS — Johnson
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
HL
City Clerk
2013-84