Confidentiality Agreement: Appendix H
Combined Heat and Power Request for Offers
NON-DISCLOSURE AND USE OF INFORMATION AGREEMENT
This Non-Disclosure and Use of Information Agreement (“Agreement”) is made and
entered into by and between Pacific Gas and Electric Company (“PG&E”) and
________________________ (“Seller”), each of which is a Party and who, together, are the
Parties. For purposes of this Agreement, the Party providing information is the “Disclosing
Party” and the Party receiving such information is the “Receiving Party”.
1.
Purpose, Scope, Definition, and Use. The purpose of this Agreement is to permit the
Parties to review and use Confidential Information solely in connection with their discussions
related to PG&E’s Request for Offers (RFO) from Combined Heat and Power energy providers
and a potential Power Purchase Agreement between the Parties based on Seller’s offer in the
RFO. Confidential Information under this Agreement consists of confidential or proprietary
information that is clearly identified as such, by oral declaration in the case of oral
communications and by a “Confidential” stamp on written material. The Parties may use
Confidential Information received hereunder only for the purposes identified herein. Any other
use is prohibited without the prior written consent of the Disclosing Party.
2.
Persons Permitted to Review Confidential Information. Only those personnel of each
Party with a need to know the Confidential Information may receive such information. Each
such person shall be informed of the terms of this Agreement before disclosure of Confidential
Information may be made to him or her.
3.
Terms of Disclosure. Subject to the exceptions set forth herein, the Receiving Party
shall keep all Confidential Information in confidence and shall not, without the prior written
agreement of the Disclosing Party, disclose such information or otherwise make it available in
any form or manner to any third party or to any personnel of a Party other than in accordance
with this Agreement.
4.
Exceptions to Non-Disclosure. Confidential Information may be disclosed by the
Receiving Party to a third party to the extent that such information:
(a)
Was in the public domain at the time of such disclosure; or
(b)
Had been received by the Party at the time of disclosure through other means
without restriction on its use, or had been independently developed by that Party as shown
through documentation; or
(c)
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, regulatory agency, or other
governmental authority of competent jurisdiction; or
(d)
That Party is under a legal or regulatory obligation to disclose the information.
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In addition to these enumerated exceptions, PG&E shall be permitted to disclose Seller’s
Confidential Information as follows: (i) to PG&E’s Procurement Review Group, as defined in
California Public Utilities Commission (“CPUC”) Decision (D) 02-08-071 and made applicable
to this CA by D.04-06-015, subject to a confidentiality agreement, (ii) to PG&E’s Cost
Allocation Methodology Group, as defined in CPUC Decision 07-12-052, subject to a
confidentiality agreement, (iii) to the CPUC (including CPUC staff) under seal for purposes of
review, (iv) the Independent Evaluator as specified in the RFO, and (v) in order to comply with
any applicable law, regulation, or any exchange, control area or ISO rule or any applicable
regulation, rule, or order of the CPUC, California Energy Commission, or the Federal Energy
Regulatory Commission.
5.
Notice of Pending Third Party Disclosure. If a court or regulatory agency issues an
order or subpoena, or otherwise requests or requires the disclosure of Confidential Information
by a Party (a “Demand”), that Party shall notify the disclosing Party of the Demand as soon as
practicable, so as to facilitate the Disclosing Party’s efforts to prevent such disclosure or
otherwise preserve the confidentiality of the Confidential Information. A Party shall not be in
violation of this Agreement if it complies with a Demand.
6.
Term. This Agreement shall become effective on the date it is fully executed and shall
continue in effect for two calendar years unless either Party unilaterally terminates this
Agreement by providing notice to the other Party of an early termination. Termination shall not
extinguish any claim, liability or cause of action under this Agreement existing at the time of
termination, including each Party’s right under Paragraph 7, below.
7.
Return or Destruction of Confidential Information. Upon termination of this
Agreement and the Disclosing Party’s request, all Confidential Information shall be returned to
the Disclosing Party or destroyed by the Receiving Party.
8.
Exclusivity. For a period of six months from the effective date of this Agreement, Seller
agrees to deal in good faith and exclusively with PG&E regarding the generating unit(s)
identified in Seller’s offer in PG&E’s CHP RFO.
9.
Complete Agreement; No Other Rights; No Business Relationship.
(a) This Agreement contains the complete and exclusive agreement of PG&E and Seller
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. Any conflict between the language of this
Agreement and any mark, stamp, annotation or other language identifying information 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 party other than those expressly stated herein. Neither the existence of this Agreement nor
any provision herein is intended to or may be deemed to create a partnership or any other
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business relationship between the Parties. Any such relationship must be set forth in a
subsequent and separate written document executed by both Parties.
10.
Amendments. No change to this Agreement shall be effective unless agreed to in writing
and executed by both Parties.
11.
No Warranties or Representations. Any Confidential Information disclosed under this
Agreement carries no warranty or representation of any kind, either express or implied.
12.
Injunctive Relief. The Parties agree that, in addition to whatever other remedies may be
available to a Party under applicable law, a Party shall be entitled to obtain injunctive relief with
respect to any actual or threatened violation of this Agreement by any other party. Each Party
agrees that it shall bear all costs and expenses, including reasonable attorneys’ fees that may be
incurred by the other Party in enforcing the provisions of this Paragraph 12.
13.
Public Announcements. Seller may not make public or otherwise disclose to the public,
orally or in writing, the Parties’ activities regarding the Purpose of this Agreement without the
express written agreement of PG&E as to the timing and content of such public statement(s).
14.
Governing Law. This Agreement is made in the State of California and shall be
governed by and interpreted in accordance with its laws.
15.
Assignment. This Agreement shall be binding upon the Parties, their successors, and
assigns. Neither Party may assign this Agreement without the other Party’s prior written consent.
16.
Construction of Agreement. Ambiguities or uncertainties in the wording of this
Agreement shall not be construed for or against either Party, but shall be construed in the manner
that most accurately reflects the Parties’ intent as of the date that they executed this Agreement.
17.
Signature Authority. Each Party warrants that the person signing below on its behalf
has been duly authorized by that Party to execute this Agreement and thereby to bind that Party to
the terms set forth herein.
18.
Counterparts, Facsimile. This Agreement may be executed in counterparts, each of
which may be delivered by facsimile and all of which shall be considered one and the same
Agreement. A facsimile copy of the executed signature page shall have the same legal effect as
an original.
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For Seller:
For PG&E:
By: _____________________
By: _______________________
Title: ____________________
Title: _____________________
Date: _______________, 2012
Date: ________________, 2012
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