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HomeMy WebLinkAboutOrange County Joint Power Authority (OCPA) - 2023-03-21 (2) ltotSTIN6T0y � CITY OF HUNTINGTON BEACH $I 2000 MAIN STREET, HUNTINGTON BEACH, CALIFORNIA 92648-2702 �oe�DUNtY March 17, 2023 Orange County Power Authority Attn: Brian Probolsky, CEO P.O. Box 54283 Irvine, CA 92619-4283 Dear Mr. Probolsky, The City Council of Huntington Beach is submitting this request for access to the Orange County Power Authority (OCPA) power purchase agreements, sometimes referred as energy contracts, that the authority. The request for access includes City Council Members, City Staff, and consultant(s) hired by the City to perform a review. The review of the energy contracts is a piece of the the Huntington Beach City Council wishes to explore all information relevant information providing impacts of the possibility of withdrawing from OCPA membership. This is also a request for further information as it becomes available that may be considered. Please see the attached executed Non-Disclosure Agreement provide by OCPA to facilitate this request. Thank you for your time, attention, and consideration of our request. Sincerely, Travis Hopkins Assistant City Manager Also sent via email Encl. Fax 714.536.5233 Page 1 of 1 Office: 714.536.5202 EXHIBIT A REQUEST FOR ACCESS 1. Page 9 55735.00001140977354.1 ORANGE COUNTY POWER AUTHORITY NON-DISCLOSURE AGREEMENT (SOLELY FOR PURPOSES OF MEMBER AGENCY REVIEW OF MARKET SENSITIVE INFORMATION) This Non-Disclosure Agreement("Agreement")dated as of March 21, 2023 ("Effective Date") is hereby entered into by and between Orange County Power Authority, a California joint powers authority ("Authority") and the City of Huntington Beach ("Member"). Authority and Member shall sometimes be referred to in this Agreement individually as a "Party" and jointly as the "Parties." RECITALS A. Authority is a California Joint Powers Authority formed for the purpose of operating a community choice aggregation plan for the benefit of the electrical utility customers within the jurisdictional boundaries of each Member("Customers"); B. Member is a member of Authority pursuant to that certain Joint Powers Agreement dated November 20,2020,as amended by that certain First Amendment dated February 9,2021,and that certain Second Amendment dated October 25,2022; C. One of the primary functions of the Authority is entering into power purchase agreements with energy providers to serve electricity to its Customers, as well as to purchase various energy related products to comply with regulatory mandates such as resource adequacy requirements and the California renewables portfolio standard ("Energy Contracts"). The Energy Contracts contain market standard confidentiality clauses that are subject to the disclosure requirements of the California Public Records Act("PRA"); D. The California Public Utilities Commission ("PUC") has adopted rules and decisions concerning the scope of information related to Energy Contracts and the operation of the market for electricity in California that the PUC treats as confidential market sensitive information not subject to disclosure under the PRA or the California Evidence Code. In its filings with the PUC, the Authority requests confidential treatment for its Energy Contracts and certain of its procurement plans and regulatory filings. E. Pursuant to the Authority's legal interpretation of the PUC rules and decisions and the exceptions to disclosure under the PRA, the policy of the Authority is to redact from Energy Contracts and other materials released to the public the following information: (i) price, (ii) quantity, (iii) credit terms and collateral, (iv) the location of energy generation resources that are being acquired,and(v)projections of energy procurement and use that are used for planning purposes internally and/or procurement plans filed Page 1 5 573 5.00001%40977354.1 with the PUC. The Authority designates this information as confidential under the term "Market Sensitive Information". F. The policy of the Authority has been to allow members of the Board of Directors of the Authority to view unredacted Energy Contracts and Market Sensitive Information through a secure document portal to carry out their oversight duty. The Authority does not otherwise provide access to this information to members of the Authority on the basis that it is protected information that must remain confidential. G. Certain members of the Authority,including Member,have taken issue with this policy on the basis that(i)the protected status accorded Market Sensitive Information by the Authority does not apply to members of the Authority due to their unique status;or(ii) that the legal interpretation of the Authority that Market Sensitive Information is not subject to public disclosure under California law is incorrect. H. Members of the Authority have asked the Authority to expand access to Market Sensitive Information to allow members to independently evaluate the activities of the Authority, carry out audits of the performance of the Authority and verify the calculation of amounts that may be due and owing to the Authority upon the withdrawal of a member. In order to accommodate the requests of members, including Member, Authority has agreed to provide on a one-time basis certain Market Sensitive Information and other confidential information to Member pursuant to Government Code section 7921.505(c)(5), which provides that there is no waiver of confidentiality when an agency discloses otherwise confidential information to another governmental agency when the recipient agency agrees to treat the disclosed material as confidential. The recipient agency must identify in writing the persons who are permitted to obtain the information and that it will only use the confidential information for purposes that are consistent with existing law. AGREEMENT NOW,THEREFORE,the Parties agree as follows: 1. Certain Defined Terms.For purposes of this Agreement,the following terms shall have the following meanings: (a) "Confidential Information" means all Review Material that is marked as confidential by the Authority and contains material the Authority considers to be (i) Market Sensitive Information; and (ii) any trade secrets or proprietary information of Authority in connection with the procurement, scheduling and regulatory reporting of its activities as a community choice aggregator that is subject to an exception from disclosure under the PRA. Confidential Information does not include Review Materials that (i) are when furnished, or thereafter become,available to the public other than as a result of a disclosure by Member or its Representatives,or(ii) are already in the possession of or become available to Page 2 55735.00OO1140977354.1 Member or its Representatives on a non-confidential basis from a source other than Member or its Representatives,provided that,to the best knowledge of Member or its Representatives,as the case may be,such source is not and was not bound by an obligation of confidentiality to Authority,or(iii)the Member or its Representatives can demonstrate has been independently developed without a violation of this Agreement. This information shall be treated as confidential for a period of three years from the date the Confidential Information is received. (b) "Permitted Use"means the authorized use of Confidential Information to carry out analyses, audits or verifications of the procurement of energy and regulatory products by Authority and the calculation of potential liability of the Member in connection with a potential withdrawal the Authority. (c) "Request for Access" means that certain request of Member for access to Confidential Information which is attached hereto as Exhibit A. (d) "Representatives" means the following personnel or agents of Member: (i) employees of Member who have a need to access Confidential Information to carry out the Permitted Use; (ii) a consultant or professional hired by Member with special knowledge or expertise with respect to the operation of energy markets who has contractually agreed to maintain the confidentiality of all Confidential Information; (iii) members of the City Council and executive or management personnel, including the City Manager,with responsibility for reviewing the work product of employees or consultants who are defined in clauses (i) or (ii) above, provided,however,that access to Confidential Information will be through a secure electronic portal that allows viewing of such Confidential Information without the ability to download or copy the Confidential Information;and(iv)legal counsel of a Party. Representatives does not include the elected officials of Member except for any elected official who serves on the Board of Supervisors. (e) "Review Material" means any and all written (including electronic communications), orally conveyed or recorded information, contracts, data, analyses, documents, and materials furnished or made available to the Representatives of a member of Authority in connection with the Request for Access, and any and all analyses, compilations, studies, documents, or other material prepared by the Representatives of a receiving Party to the extent containing or based upon such information, data, analyses, documents, and materials. 2. Confidentiality Obligations. Member shall, and shall cause its Representatives to, treat Confidential Information as confidential with respect to third parties and shall not disclose Confidential Information except as specifically authorized herein or as specifically agreed to by Authority in writing.All Confidential Information shall be used solely by the Member for the Permitted Use. The Authority shall take all necessary steps to identify and clearly mark material it considers Confidential Information as confidential. The Authority shall only mark material as Confidential Information that it reasonably contends is exempt from disclosure under the California Public Records Act. Member will take all necessary precautions and implement all requisite procedures and practices to protect Confidential Information from unauthorized access. Member may disclose Confidential Information Page 3 55735.00001140977354.i only to its Representatives, or in subsequent discussions or evaluations regarding the Permitted Use and so long as Member advises each Representative of the confidential nature of the Confidential Information and uses reasonable efforts to prevent or limit the disclosure of Confidential Information by such Representative. Notwithstanding the foregoing, Member may aggregate data derived from the Confidential Information in reports or evaluations, provided, however, that such aggregated data is not presented in a publicly released record in such as manner that Confidential Information could be reconstituted. Member will provide Authority with a reasonable opportunity to provide input on the public presentation of aggregated data. 3. Permitted Disclosures. Notwithstanding anything to the contrary set forth herein, the obligations set forth in this Agreement shall not apply to and the term "Confidential Information"shall not include: (a) Information which is in the public domain or which later comes into the public domain from a source other than from the receiving Party or its Representatives; (b) Information which Member can demonstrate in writing was already known and legally obtained by the Member prior to the Effective Date; (c) Information which comes to a Member from a bona fide third party source not under an obligation of confidentiality; (d) Information which is independently developed by a Member without use of or reference to Confidential Information or information containing Confidential Information; (e) Information required to be disclosed under state or federal law pursuant to Section 4 and 5 below. 4. Member agrees that the Authority's position is that irreparable damage would occur if this Agreement were not performed in accordance with its terms or were otherwise breached. Accordingly, Authority may be entitled to seek an injunction or injunctions to prevent breach of this Agreement and to enforce specifically its provisions in any court of competent jurisdiction,in addition to any other remedy to which Authority may be entitled by law or equity. In the event that the Member receives a PRA request for any Confidential Information,it shall promptly notify the Authority and will protect such Confidential Information consistent with the terms of pursuant to Government Code section 7921.505(c)(5) unless Authority provides Member with written authorization to disclose some or all of the requested material. If the requestor of such information files a legal action challenging the applicability of Government Code section 7921.505(c)(5)to the Confidential.Information, then the Authority shall indemnify and defend with counsel approved in writing by the Member and hold the Member, its elected and appointed officials, officers, employees, agents and those special districts and agencies which Member's Board of Supervisors acts as the governing Board harmless from any third party claims, demands or liability of any kind or nature related to a PRA request for Confidential Information. Page 4 55735.00001\40977354.1 5. Member agrees not to introduce(in whole or in part)into evidence or otherwise voluntarily disclose in any administrative or judicial proceeding,any Confidential Information,except as required by law,pursuant to a court-approved protective order,Iegal compulsion,or with the written consent of Authority or as Authority or Member may be required to disclose to duly authorized governmental or regulatory agencies, including the CPUC or any division thereof,in order to demonstrate the reasonableness of its actions. 6. All written Confidential Information supplied by Authority, and all copies or translations thereof made by Member or its Representatives who received the Confidential Information, shall be held and maintained subject to the terms of this Agreement. 7. Nothing in this Agreement is intended to waive any attorney-client,work-product or other privilege applicable to any statement, document, communication, or other material of a Party or the Parties. Without limiting the generality of the foregoing, pursuant to Government Code section 7921.505(c)(5), disclosure of the records by the Authority to Member under this Agreement shall not constitute a waiver of any provisions of the California Public Records Act or similar laws. Pursuant to section 7921.505(c)(5), only persons authorized in writing by the person in charge of the Member shall be permitted to obtain the records,and any information obtained by the Member shall be used for purposes that are consistent with existing law. 8. The Parties acknowledge that this Agreement is the result of a compromise and shall not be construed as an admission by any Party that the any Market Sensitive Information is subject to disclosure under the Public Records Act, has been correctly designated as such or that such information is exempt from disclosure under the Public Records Act. 8. Any notice or communication given pursuant to this Agreement shall be in writing and: (a) Delivered personally, in which case delivery is given upon written acknowledgment of receipt; (b) Mailed by registered or certified mail; postage prepaid, in which case delivery is given on the earlier of the actual date of delivery, as set forth in the return receipt, or three(3)days from the date posted,or (c) Delivered by electronic mail to the receiving Party, provided, however, that such delivery shall not be deemed effective until receipt is acknowledged via return electronic email(not including any automatic notification of receipt). In any of these cases, the writing shall be sent or delivered as follows (subject to change by either Party by notifying the other Party pursuant to this paragraph). If to Authority: Orange County Power Authority Attn: Chief Financial Officer P.O. Box 54293 Irvine, CA 92619 Email: tlawwa,ocpower.org Page 5 55735.00001\40977354.I With a copy to: Best Best&Krieger LLP 18101 Von Karman Avenue,Suite 1000 Irvine,CA 92612 Email: nicholas.norvell@bbklaw.com If to Member: City of Huntington Beach Attn: Travis Hopkins 2000 Main Street Huntington Beach,CA 92648 thopkins@surfcity-hb.org With a copy to: Office of City Attorney City of Huntington Beach Attn: Michael Gates 2000 Main Street Huntington Beach,CA 92648 michael.gates@surfcity-hb.org 9. Either Party may terminate this Agreement for any reason or no reason, with or without cause, by providing thirty (30) days prior written notice to the other of its intention to terminate;provided however, that the terms of this Agreement remain applicable to any Confidential Information received by Member and its Representatives for a period of three (3)years from the later of the date the Confidential Information is received. 10. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the Parties hereto. This Agreement shall be construed as if each Party was its author and each Party hereby adopts the language of this Agreement as if it were its own. 11. Any waiver of the requirements and provisions of this Agreement shall be in writing. 12. The failure of either Party to enforce at any time any of the provisions of the Agreement or to require at any time performance by the other Party of any of such provisions,shall in no way be construed as a waiver of such provision or a relinquishment of the right thereafter to enforce such provision. 13. This Agreement may not be modified except by a written agreement executed by both Parties. 14. This Agreement shall be interpreted, governed and construed under the laws of the State of California(without giving effect to its conflict of laws provisions that could apply to the Page 6 55735.00001140977354,1 law of another jurisdiction)as if executed in and to be wholly performed within the State of California. 15. This Agreement fully expresses the Parties' agreement concerning the subject matter hereof and supersedes any prior agreements or understandings regarding the same subject matter. 16. The signatories hereto represent that they have been duly authorized to enter into this Agreement on behalf of the Party for whom they sign. 17. If any provision hereof is unenforceable or invalid, it shall be given effect to the extent it may be enforceable or valid, and such enforceability or invalidity shall not affect the enforceability or invalidity of any other provision of this Agreement. 18. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original of this Agreement and all of which,when taken together,will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission or by other electronic means shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or by other electronic means shall be deemed to be their original signatures for all purposes. 20. This Agreement,including the signatures,is disclosable under the Public Records Act. [signature page follows] Page 7 55735.00001140977354.I ORANGE COUNTY POWER CITY OF HUNTINGTON BEACH AUTHORITY, a California joint powers authority. By; By: Name: Bnan Probols c: AlLclinka Title: Chief Execut' Officer Title: City Manager DATE: DATE" APPROVED AS T I FORM: APPROVED AS TO FORM: • If . „ AA._ -- • ame: Nicholas Norvell 1f.Name: ichacl Gates Title: Partner, Best Best& Krieger LLP Title: City Attorney Page 8 5 5 73 5.0000 I\4 097 73 54.1