HomeMy WebLinkAboutSOUTHERN CALIFORNIA EDISON CO. - 2008IN3URANGE NOT REQUIRED ~ COPY N-2008-113
WORK MAY PROCEED
CLERK OP GOUNCII
DATE, c~ ,~,d~ COMMUNITY CHOICE AGGREGATOR
NON-DISCLOSURE AGREEMENT
~'. P~ C3)
~p ,~ ,~i (' Q_(~ (e This Non-Disclosure Agreement ("Agreement") is entered into by and between
x 5058 Southern California Edison Company ("Utility") and The City of Santa Ana, a charter
city and municipal corporation duly organized and existing under the constitution and
laws of the State of California ("CCA") as of ~oo-}e,n ~r la- , 2008 ("Effecfive
Date"). This Agreement is executed pursuant to California Public Utilities Commission
("CPUC") Order Instituted Rulemaking ("OIR") 03-10-003, California Public Utilities
Code ("PU Code") Section 366.2 et seq., and applicable Utility taziffs (as modified
hereafter from time to time). As used herein Utility and CCA may each be referred to
individually as a "Party" and collectively as "Parties."
The CPUC has determined that CCA may obtain specified confidential customer
information from Utility pursuant to Tariff Schedule Community Choice Aggregation -
Information Fees (as modified hereafter from time to time) ("CCA-INFO") as a
Community Choice Aggregator, as defined by PU Code Section 331.1, solely iri order to
investigate, pursue or implement community choice aggregation pursuant to PU Code
Section 366.2, et seq. The provisions of this Agreement and CCA-INFO govern the
_ disclosure of Utility's confidential customer information to CCA ("Disclosure
Provisions").
The Parties hereby mutually agree that:
LSubject to the terms and conditions of this Agreement, current proprietary and
confidential information of Utility regarding customers of Utility ("Utility
Customers") may be disclosed to CCA from time to time in connection
herewith as provided by the Disclosure Provisions and solely for the purpose of
invesfigating, pursuing or implementing community choice aggregation
pursuant to PU Code Section 366.2, et seq. as a CCA. Such disclosure is
subject to the following legal continuing representations and warranties by
CCA:
(a) CCA represents and warrants that, pursuant to PU Code Section 331.1,
(1) it is either (i) a city or county whose governing boazd has elected to
combine the loads of its residents, businesses, and municipal facilities
in a community wide electricity buyers program or (ii) a city or county
that intends to actively investigate or pursue delivery of electric
service to customers located within the geographic territory of the
CCA, and (2) that to investigate, pursue or implement community
choice aggregation under PU Code Section 366.2 et seq., it requires
certain Confidential Information, as defined in Section 2, below;
(b) CCA represents and warrants that it has all necessary authority to enter
into this Agreement, and that it is a binding enforceable Agreement
according to its terms;
Form 14769
Page 1 of 6
(c) CCA represents and warrants that the authorized representative(s)
executing this Agreement is authorized to execute this Agreement on
behalf of the CCA; and
(d) CCA confirms its understanding that the information of Utility
Customers is of a highly sensitive confidential and proprietary nature,
and that such information will be used as contemplated under the
Disclosure Provisions solely for the purposes of investigating, pursing
or implementing Community Choice Aggregation Service under PU
Code Section 366.2 as a community choice aggregator and that any
other use of the information may permit Utility to suspend providing
further information hereunder.
2. The confidential and proprietary information disclosed to CCA in connection
herewith may include, without limitation, the following information about
Utility Customers: (a) niunes; (b) addresses; (c) meter and other identification
numbers; (d) account numbers; (e) telephone numbers; (f) electricity usage;
and (g) other similar information specific to Utility Customers individually or
in the aggregate (collectively, "Confidential Information"). Confidential
Information shall also include specifically any copies, drafts, revisions,
analyses, summaries, extracts, memoranda, reports and other materials
prepared by CCA or its representatives that are derived from or based on
Confidential Information disclosed by Utility, regardless of the form of media
in which it is prepared, recorded or retained.
3. Except for electric usage information provided to CCA pursuant to this
Agreement, Confidential Information does not include information that CCA
proves (a) was properly in the possession ofCCA at the time of disclosure; (b)
is or becomes publicly known through no fault of CCA, its employees or
representatives; or (c) was independently developed by CCA, its employees or
representatives without access to any Confidential Information.
4. From the Effective Date, no portion of the Confidential Information may be
disclosed, disseminated or appropriated by CCA, or used for any purpose
other than to investigate, pursue or implement community choice aggregation
under PU Code Section 366.2 et seq. as a CCA as permitted under this
Agreement and the Disclosure Provisions.
5. CCA shall, at all times and in perpetuity, keep the Confidential Information in
the strictest confidence and shall take all reasonable measures to prevent
unauthorized or improper disclosure or use of Confidential Information.
Specifically, CCA shall restrict access to Confidential Information, and to
materials prepared in connection therewith, to those employees or
representatives of CCA who have a "need to know" such Confidential
Information in the course of their duties with respect to the CCA program and
who agree to be bound by the nondisclosure and confidentiality obligations of
Form 14-769
Page 2 of6
this Agreement, provided, however, that, an Energy Service Provider, agent,
or any other entity, including entities that provide both direct access (as
codified in Assembly Bill No. 1890, Stats. 1996, ch. 854) and Community
Choice Aggregation services shall limit their utilization of the information
provided to the purposes for which it has been provided and shall not utilize
such information, directly or indirectly, in providing other services, including
but not limited to Direct Access services, in order to effectuate the obligations
of this Agreement. Prior to disclosing any Confidential Information to its
employees or representatives, CCA shall require such employees or
representatives to whom Confidential Information is to be disclosed to review
this Agreement and to agree in writing to be bound by the terms of this
Agreement by signing the "Non-Disclosure Agreement for CCA Employees
or Representatives" form attached as Exhibit A hereto. CCA shall provide
Utility with copies of the signed Exhibit A forms at Utility request. CCA shall
also provide Utility with a list of the names, titles, and addresses for all
persons or entities to which Confidential Information is disclosed in
connection herewith ("Disclosure List"). This Disclosure List shall be updated
by CCA on a regular basis, and will be provided to Utility once each quarter at
a minImum.
6. CCA shall be liable for the actions of, or any disclosure or use by, its
employees or representatives contrary to this Agreement; however, such
liability shall not limit or prevent any actions by Utility directly against such
employees or representatives for improper disclosure and/or use. In no event
shall CCA or its employees or representatives take any actions related to
Confidential Information that are inconsistent with holding Confidential
Information in strict confidence. CCA shall immediately notifY Utility in
writing if it becomes aware of the possibility of any misuse or
misappropriation of the Confidential Information by CCA or any of its
employees or representatives. However, nothing in this Agreement shall
obligate the Utility to monitor or enforce the CCA's compliance with the
terms of this Agreement.
7. CCA acknowledges that disclosure or misappropriation of any Confidential
Information could cause irreparable harm to Utility and/or Utility Customers,
the amount of which may be difficult to assess. Accordingly, CCA hereby
confirms that the Utility shall be entitled to apply to a court of competent
jurisdiction or the CPUC for an injunction, specific performance or such other
relief (without posting bond) as may be appropriate in the event of improper
disclosure or misuse of its Confidential Information by CCA or its employees
or representatives. Such right shall, however, be construed to be in addition to
any other remedies available to the Utility, in law or equity.
8. In addition to all other remedies, CCA shall indemnifY and hold harmless
Utility, its affiliates, subsidiaries, parent company, officers, employees, or
agents from and against and claims, actions, suits, liabilities, damages, losses,
Form 14-769
Page 3 of 6
expenses and costs (including reasonable attorneys' fees, costs and
disbursements) attributable to actions or non-actions of CCA and/or its
employees and/or its representatives in connection with the use or disclosure
of Confidential Information.
9. If, at any time, CCA ceases its investigation, pursuit or implementation of
community choice aggregation pursuant to PU Code Section 366.2 et seq.,
CCA shall promptly return or destroy (with written notice to Utility itemizing
the materials destroyed) all Confidential Information then in its possession at
the request of Utility. Notwithstanding the foregoing, the nondisclosure
obligations of this Agreement shall survive any termination of this
Agreement.
10. This Agreement shall be binding on and inure to the benefit of the successors
and permitted assigns of the Parties hereto. This Agreement shall not be
assigned, however, without the prior written consent of the non-assigning
Party, which consent may be withheld due to the confidential nature of the
information, data and materials covered.
II. This Agreement sets forth the entire understanding of the Parties with respect
to the subject matter hereof, and supersedes all prior discussions, negotiations,
understandings, communications, correspondence and representations,
whether oral or written. This Agreement shall not be amended, modified or
waived except by an instrument in writing, signed by both Parties, and,
specifically, shall not be modified or waived by course of performance, course
of dealing or usage of trade. Any waiver of a right under this Agreement shall
be in writing, but no such writing shall be deemed a subsequent waiver of that
right, or any other right or remedy.
12. This Agreement shall be interpreted and enforced in accordance with the laws
of the State of California, without reference to its principles on conflicts of
laws.
13. This Agreement shall, at all times, be subject to such changes or modifications
by the CPUC as it may from time to time direct in the exercise of its
jurisdiction.
Form 14-769
Page 4 of 6
IN WITNESS WHEREOF, the authorized representatives of the Parties have
executed this Agreement as of the Effective Date.
SOUTHERN CALIFORNIA EDISON COMPANY
BY:
TITLE:
CITY OF SANTA ANA
BY:
tLA7.~
DavidN. Ream
City Manager
Al~~
k:;}'.~ . .
. Patricia E. Healy
Clerk of the Council
(J Copy
Form 14-769
Page 5 of6
EXHIBIT A
NON-DISCLOSURE AGREEMENT
FOR CCA EMPLOYEES OR REPRESENTATIVES
I,
, declare under penalty of perjury that
(1) I am employed as
(title) at
(employer and address); and
(2) I have personally reviewed the attached COMMUNITY CHOICE GGREGATOR
NON-DISCLOSURE AGREEMENT relating to disclosure and use of Confidential
Information (as defined therein) and I agree to be bound by its provisions.
Signed:
Print Name:
Dated:
Form 14-769
Page 6 of6
ExmBIT A
NON-DISCLOSURE AGREEMENT
FOR CCA EMPLOYEES OR REPRESENTATIVES
I, Jh\ I: ~ "N. ?...Qo\Y, , declare under penalty of perjury that
(I) I am employed as (\~o.\'\C.l~ (title)at~ JbSe-vdv-A\CIL
V2 (!N(c 0~ Y\crzc:AS~~(employer and address); and
(2) I have personally reviewed the attached COMMUNITY CHOICE GGREGATOR
NON-DISCLOSURE AGREEMENT relating to disclosure and use of Confidential
Information (as defined therein) and I agree to be bound by its provisions.
aAa.
Signed:
Print Name: ~Vi,{ \J. Ma\'Y\
Dated:
..~!JJ~~ ..'
cd~H
PATRICIA Eo HEALY
CLERK OF THE COUNCIL
Form 14-769
Pag.6016
DECLARATION BY CITY MANAGER REGARDING PURSUIT OR
IMPLEMENTATION OF COMMUNITY CHOICE AGGREGATION SERVICE
I, David N. Ream, state as follows:
1. I am the City Manager and chief administrator of the City of Santa Ana.
2. I am authorized to make this declaration on behalf of the City of Santa
Ana, a city which is investigating, pursuing or implementing community choice
aggregation as a community choice aggregator as defined by Section 331.1 of
the California Public Utilities Code.
3. I understand that all of the confidential information provided by Southern
California Edison to Santa Ana is subject to the terms and conditions of the
Nondisclosure Agreement between these two entities and is provided for the sole
purpose of enabling Santa Ana to investigate, pursue or implement community
choice aggregation under Section 366.2 of the California Public Utilities Code.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct. Executed this _ day of
2008, at Santa Ana, California.
M,tZ
[signature]
ED AS TO FORM
ATl'ESTa
a'
PA TRICIA ~ HEALY
CLERK OF THE COUNCIL
J\J ,;;WO~-II '3
Cable, Teri
From:
Sent:
To:
Subject:
Cable, Teri
Friday, August 22, 2008 7:02 PM
Ross, Jim; Standiford, Cathy; Christensen, Angl
Community Aggregation
[I COpy
In order to move to the next step in evaluating community aggregation we must sign non-disclosure statements. I will
be sending you a copy of the agreement in the interoffice mail (Dave will get the original to sign) and your non-
disclosure statement.
When you receive them, please read the agreement, sign the non-disclosure agreement and return it to me. I will take
care of getting them to our aggregation consultants.
Angi -I will need all of the documents (the agreement, his non-disclosure and the declaration that Dave SignBtl
..If1il'mfeilltoTm:~;:' ,
~~'{';:';~;':_l
Thanks. nc
(1 COPY
~
('
~./ _AD \0 ~
{\eJLV- ~ ~
~~\
<i0\)~.
~
1