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AGENDA BILL Agenda Item No. 5(C) Date: July 15, 2014 To: El Cerrito City Council From: Maria Sanders, Environmental Analyst Melanie Mintz, Interim Community Development Director Subject: Authorize Marin Clean Energy to Conduct Membership Analysis for the City to Participate in Their Community Choice Aggregation Programs ACTION REQUESTED Adopt a resolution which takes the following actions: 1. Authorizes the Mayor to submit a letter to Marin Clean Energy (MCE) requesting that they conduct an analysis of the feasibility of El Cerrito becoming a member of its Community Choice Aggregation (CCA) programs; and 2. Authorizes the City Manager to execute a contract with MCE in an amount not to exceed $18,000, as well as other necessary documents required by PG&E, to conduct a Membership Analysis for El Cerrito; and 3. Authorizes City Manager to execute a grant agreement for $15,000 with the World Wildlife Fund to fund the analysis. BACKGROUND The City of El Cerrito’s Climate Action Plan (CAP), adopted May 2013, contains a strategy to “Explore opportunities for instituting or joining a regional Community Choice Aggregation (CCA) effort” (Strategy EW-3.2). This strategy is identified in the CAP as one of the most cost-effective ways to reduce greenhouse gas emissions in El Cerrito, yielding an estimated 4,200 - 6,700 annual tons of CO2 reductions by 2020 with relatively little investment. In 2002, passage of Community Choice Aggregation legislation (AB 117, Migden) allowed CCAs to operate in California. This legislation enables California cities, counties, public agencies, and joint powers agencies to aggregate the electricity demand of its constituents and to procure electricity that meets their desired electricity supply portfolio, while still having the local utility provide transmission and distribution services. For CCAs in PG&E territory, energy transmission, distribution, repair, customer service, and billing would continue to be administered by PG&E. Customers in areas served by CCAs have a choice to continue to purchase power from PG&E by opting out of the ---PAGE BREAK--- Agenda Item No. 5(C) Page 2 local CCA. CCA participation rates are high due to this opt-out approach, allowing CCA agencies to fairly compete for competitive energy contracts in California’s monopoly- dominated energy markets. There are currently two CCAs operating in California. In 2010, MCE launched California’s first CCA. MCE is a joint powers agency (JPA) consisting of all jurisdictions in Marin County and the City of Richmond. The mission of MCE is to address climate change by reducing energy-related greenhouse gas emissions, while securing energy supply, price stability, energy efficiencies, and local economic and workforce benefits. Currently, MCE’s electricity rates are less than those of PG&E. MCE sources energy from 51% renewable sources, compared to PG&E’s 22% renewable energy portfolio. Given the success of MCE to procure renewable supplies of electricity at competitive rates, many communities throughout California are taking a fresh look at instituting CCAs. Sonoma County launched their county-wide CCA this year. Nine other counties are also exploring CCAs as an option. Closer to home, the City of Richmond successfully joined MCE in 2012. The cities of Albany and San Pablo and the County of Napa are currently in the process of analyzing the feasibility of joining the MCE. On October 2, 2012, the City Council heard a presentation by Marin Clean Energy and the City of Richmond regarding CCA, their membership process, and their program offerings. During the spring of 2014, the El Cerrito Environmental Quality Committee (EQC) hosted several presentations from various groups involved in CCAs in the Bay Area. Agreeing that joining MCE represented the least cost, lowest risk, and most time- efficient option currently available in Contra Costa County, the EQC passed a unanimous motion at its June 2014 meeting requesting that the City Council consider a resolution requesting that MCE conduct a membership analysis for El Cerrito. Finally, Community Development staff, in partnership with the City of Albany, successfully applied for a small grant ($15,000 per city) from the World Wildlife Fund to investigate the feasibility of joining a CCA. ANALYSIS MCE Membership Analysis Process: At its September 25, 2013 meeting, MCE’s Board of Directors approved a process and set of criteria, as outlined in Attachment 2 (MCE Affiliate Membership Process), by which communities could become a member. As a first step, MCE requires a letter from the City Council requesting consideration as a member in order for them to initiate an exploratory “Membership Analysis.” See Attachment 3 for the draft letter of request. The scope of work for the analysis includes procuring energy load data from PG&E, conducting the analysis to estimate the net rate impacts that would affect MCE’s existing customer base, and participating in community meetings. The contract with MCE will be in the form of the City’s approved Professional Services Agreement. Associated costs will be El Cerrito’s responsibility and are capped at $18,000. In addition, PG&E requires that the City’s authorized representative execute a Declaration regarding investigation of a CCA and Non- Disclosure Form (see Attachment 4) in order to release the energy load data necessary to conduct the Analysis. ---PAGE BREAK--- Agenda Item No. 5(C) Page 3 The primary focus of the Membership Analysis is to estimate the net rate impacts that would affect MCE’s existing customer base following the addition of the prospective new community. This analysis must demonstrate that the addition of the new community would result in a net rate reduction for MCE’s existing customer base. In addition, this analysis addresses the projected environmental benefits (such as additional reductions in greenhouse gas emissions and increases in renewable energy being used in California’s energy market) that would result from offering CCA services to the new community. Since the analysis assumes the addition of the new community’s customer base in calculating the net rate impacts and environmental benefits, the results would also pertain to the new community. For instance, if the analysis found that addition of the new community resulted in a 1% reduction in electricity rates, that rate reduction would also accrue to the new community if it became a member. Next Steps after the Membership Analysis: The proposed actions only pertain to conducting a MCE Membership Analysis. These actions do not obligate the City to become a MCE member. If the Analysis demonstrates that MCE’s criteria are met, then MCE will automatically approve El Cerrito completing the membership process. If the City Council finds the MCE membership to be beneficial, next steps would include a community engagement process, and then Council consideration of a resolution requesting membership, an ordinance authorizing CCA service through MCE, and signing onto the MCE Joint Powers Agency agreement as a party. Upon completion of the membership process, MCE would begin procuring additional electricity supplies and begin the community outreach process to provide El Cerrito customers the option of remaining with PG&E service. The community outreach process takes several months and includes the mailing of five notices, as required by AB 117, and other community meetings as needed. Costs of community outreach during this phase would be borne by MCE. Potential Impacts of AB 2145: On June 2, 2014 City Council approved sending a letter opposing AB 2145 (Bradford) to the author and the Senate Utility, Energy and Communications Committee. This legislation would have changed the “opt out” provisions of the original CCA legislation to an “opt in” basis, thereby significantly hampering any new CCA of its ability to enter the monopoly-dominated energy market place with any certainty. Although the Bill passed out of the Senate Committee on June 23, 2014, the central “opt in” requirement was struck from the bill and replaced with a geographic limit of three contiguous counties for any CCA. In its current form, AB 2145 poses no obstacles to El Cerrito joining MCE since communities in Contra Costa County such as Richmond are currently members of MCE. The bill is scheduled next to be heard at the Senate Appropriations Committee. Staff will continue to monitor the legislation as it is moves through the process to verify it continues to provide no obstacles if the City Council chooses to move forward. World Wildlife Fund (WWF) Grant: As part of its Earth Hour programs, the WWF launched its City Challenge Climate Leader Grants. This grant program seeks to provide resources to US cities around a different critical sustainability issue each year. For the ---PAGE BREAK--- Agenda Item No. 5(C) Page 4 2013 cycle, WWF made available $30,000 per application to support programs that helped communities transition towards renewable energy, with a preference given to cities pursuing CCA. El Cerrito jointly submitted a grant application with the City of Albany for both cities to investigate the feasibility of joining MCE. Our application was one of 3 nationwide that were awarded. WWF has allowed the two cities to split the award into two separate $15,000 contracts for ease of administration and reporting. The grant term is from April 1, 2014 through October 15, 2015, with the final deliverable being the Membership Analysis with Marin Clean Energy. This grant covers 83% of the cost of conducting the membership analysis, leaving a gap of $3,000. This remaining amount will be covered by the Professional Services budget in the adopted Community Development Department budget. STRATEGIC PLAN CONSIDERATIONS Goal F, “Foster environmental sustainability citywide,” of the El Cerrito Strategic Plan contains an objective to implement the City’s Climate Action Plan by facilitating “energy and water efficiency and greater adoption of clean energy.” Because CCAs in the Bay Area are being formed to procure electricity from renewable energy sources, joining a CCA is identified in the CAP as one of the more powerful and cost-effective for reducing greenhouse gas emissions in El Cerrito. There is no other strategy in the CAP that provides a similar magnitude of reductions at a similar cost. MCE sources energy from 51% renewable, non-nuclear sources, compared to PG&E’s 22% renewable energy portfolio. If the City joined MCE, GHG emissions reductions are estimated to be 4,200 tons of CO2e in the first year of full enrollment – providing an additional 3 percentage points towards the City’s 2020 15% emissions reduction target. By 2020 this reduction is likely to increase. PG&E is mandated to only increase its renewable energy portfolio to 33% by 2020. MCE plans to continue procuring electricity from non-GHG emitting sources in sufficient quantities to maintain an emissions rate that is continually lower than PG&E’s. ENVIRONMENTAL CONSIDERATIONS There is no direct environmental impact of conducting a Membership Analysis with MCE or in accepting the World Wildlife Fund grant. The proposed actions are not a project as defined by 14 California Code of Regulations 15378 (State CEQA Guidelines) and therefore CEQA is not applicable. As discussed above, if El Cerrito did ultimately join MCE, one of the main benefits would be large and cost-effective reductions in GHG emissions from community energy use. FINANCIAL CONSIDERATIONS The proposed actions are to Submit a letter to MCE requesting it conduct a Membership Analysis for El Cerrito; Authorize the City Manager to execute a contract with MCE in an amount not to exceed $18,000 for the purposes of conducting ---PAGE BREAK--- Agenda Item No. 5(C) the analysis; and Accept a $15,000 grant from the World Wildlife Fund. The $15,000 grant from WWF will cover the majority of costs associated with the Membership Analysis, leaving a gap of $3,000, which will be covered by the Professional Services budget in the Community Development Department. The adopted FY15 Budget for the Community Development Depmiment includes both the grant funds and the Membership Analysis costs. If the results of the Membership Analysis meet MCE criteria for adding new members and the City Council wishes to further pursue MCE membership, no additional outside expenses are anticipated. The cost of community outreach would be borne by MCE. However, there may be internal expenses related to legal review of the JP A agreement and other related documents. LEGAL CONSIDERATIONS The City Attorney has reviewed the associated contract documents and PG&E forms. Other than these agreements, there are no other legal obligations associated with the proposed actions. Reviewed by: Scott Hanin, City Manager Attachments: 1. Resolution 2. MCE Affiliate Membership Process 3. Letter requesting consideration as an MCE member 4. PG&E CCA Declaration and Non-Disclosure Forms Page 5 ---PAGE BREAK--- Agenda Item No. 5(C) Attachment 1 RESOLUTION 2014-XX RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO AUTHORIZING THE MAYOR TO SUBMIT A LETTER TO MARIN CLEAN ENERGY (MCE) REQUESTING IT CONDUCT A MEMBERSHIP ANALYSIS FOR EL CERRITO; AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH MCE IN AN AMOUNT NOT TO EXCEED $18,000 AND OTHER DOCUMENTS REQUIRED BY PG&E NECESSARY TO CONDUCT A MEMBERSHIP ANALYSIS; AND AUTHORIZING THE CITY MANAGER TO EXECUTE A GRANT AGREEMENT WITH THE WORLD WILDLIFE FUND FOR $15,000 FOR THE PURPOSES OF INVESTIGATING THE FEASIBLITY OF JOINING MCE WHEREAS, the City of El Cerrito has adopted resolutions supporting state and local actions to reduce greenhouse gas emissions, including Resolution 2006-61 endorsing the U.S. Mayors Climate Protection Agreement and Resolution 2006-93 endorsing the reduction targets of the California Global Warming Solutions Act (AB 32); and WHEREAS, the City of El Cerrito adopted its Climate Action Plan on May 21, 2013 with the goal of reducing greenhouse gas emissions from the El Cerrito community and its own city operations by 15% below 2005 emissions levels by 2020 and 30% below 2005 levels by 2035; and WHEREAS, on September 24, 2002, the Governor signed into law Assembly Bill 117 (Stat. 2002, Ch. 838; see California Public Utilities Code section 366.2; hereinafter referred to as the “Act”), which authorizes any California city or county, whose governing body so elects, to combine the electricity load of its residents and businesses in a community-wide electricity aggregation program known as Community Choice Aggregation (CCA); and WHEREAS, the Act expressly authorizes participation in a CCA program through a joint powers agency, and on December 19, 2008, Marin Clean Energy (MCE), formerly known as Marin Energy Authority, was established as a joint powers authority pursuant to a Joint Powers Agreement, as amended from time to time (“MCE Joint Powers Agreement; and WHEREAS, the purpose of MCE is to address climate change by reducing energy related greenhouse gas emissions and securing energy supply, price stability, energy efficiencies and local economic and workforce benefits; and WHEREAS, the El Cerrito Climate Action Plan has identified membership in a CCA that procures from renewable energy sources to be one of the most cost-effective greenhouse gas emissions reductions strategies; and ---PAGE BREAK--- Agenda Item No. 5(C) Attachment 1 WHEREAS, the MCE Governing Board has adopted a policy by which communities outside of Marin County can be considered for membership, which includes MCE conducting a membership impact analysis; and WHEREAS, the City of El Cerrito has been awarded an Earth Hour Climate Leader grant from the World Wildlife Fund for the purposes of investigating the feasibility of joining a CCA. NOW THEREFORE, BE IT RESOLVED, the City Council of the City of El Cerrito does hereby: 1. Authorize the Mayor to submit a letter to the Marin Clean Energy requesting that they conduct an analysis of the impact of El Cerrito joining its Community Choice Aggregation programs; 2. Authorize the City Manger to execute a contract with MCE in an amount not to exceed $18,000, and other necessary documents required by PG&E, to conduct a membership analysis; and 3. Authorize the City Manager to execute a grant agreement with the World Wildlife Fund for $15,000 for the purpose of investigating the feasibility of joining MCE. BE IT FURTHER RESOLVED, that this Resolution shall become effective immediately upon passage and adoption. I CERTIFY that at a regular meeting on July 15, 2014 the City Council of the City of El Cerrito passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on July 2014. Cheryl Morse, City Clerk APPROVED: Janet Abelson, Mayor ---PAGE BREAK--- MCE Affiliate Membership Process Step 1: Governing body submits letter to MEA from new community jurisdiction, requesting consideration as a member. Step 2: Staff evaluates request timing to determine if internal resources are available to consider request, and to ensure no impact to core agency functions. Step 3: Request submitted to MEA Board to consider adherence to criteria D, E, F and G below, and to authorize initiation of membership analysis. Step 4: Following MEA Board approval, staff executes contract with governing body of new jurisdiction to fund costs of membership analysis. Staff undertakes and completes analysis, with primary focus on quantitative criteria A, B and C below. Step 5: Results of membership analysis presented to governing body of new community and to MEA Board. If quantitative affiliate membership criteria are met, community is automatically authorized to complete affiliate membership process. If qualitative criteria are not met but other compelling criteria are present, Board may consider approval of affiliate membership. Step 6: Governing body of new jurisdiction approves resolution requesting membership, ordinance authorizing community choice aggregation service through MCE and signs JPA Agreement as an Affiliate Party. Step 7: MEA Board adopts resolution authorizing membership of the additional incorporated municipality and submits updated Implementation Plan to CPUC. Affiliate Membership Criteria: A. Allowing for MCE service in new community will result in a projected net rate reduction for existing customer base. B. Offering service in new community will enhance the strength of local programs, including an increase in distributed generation, and will accelerate greenhouse gas reductions on a larger scale. C. Including new community in MCE service will increase the amount of renewable energy being used in California’s energy market. D. There will be an increase in opportunities to launch and operate MCE energy efficiency programs to reduce energy consumption and reliance on fossil fuels. E. New opportunities are available to deploy local solar and other distributed renewable generation through the MCE Net Energy Metering Tariff and Feed in Tariff. F. Greater demand for jobs and economic activity is likely to result from service in new community. G. The addition of the new community is likely to create a stronger voice for MCE at the State and regulatory level. Agenda Item No. 5(C) Attachment 2 ---PAGE BREAK--- Agenda Item No. 5(C) OFFICE OF THE MAYOR Attachment 3 Janet Abelson CITY HALL 10890 San Pablo Avenue, El Cerrito, CA 94530 Telephone (510) 215-4305 Fax (510) 215-4379 http://www.el-cerrito.org July 15, 2014 Dawn Weisz, Executive Director Marin Clean Energy 781 Lincoln Avenue, Suite 320 San Rafael, CA 94901 Dear Ms. Weisz: I am pleased to provide this letter requesting that Marin Clean Energy (MCE) conduct a Membership Analysis to explore whether extending membership to the City of El Cerrito would be mutually beneficial. In 2013, the City of El Cerrito adopted its Climate Action Plan (CAP) with overall greenhouse gas emissions reduction targets of 15% below 2005 levels by 2020 and 30% below 2005 levels by 2035. To achieve these targets, the City identified Community Choice Aggregation as on the most cost-effective ways to reduce El Cerrito’s greenhouse gas emissions. The CAP also identified objectives to reduce energy use in existing buildings by 20% and to facilitate greater adoption of renewable energy in both the residential and commercial sectors. In addition to offering competitive energy rates and a high percentage of electricity coming from renewable resources, we are interested in MCE’s incentive programs that encourage community members to become more energy efficient and to install solar. We believe membership in a CCA such as MCE could go far in helping the City reach its CAP goals, as well as provide our residents with greater choice in the energy marketplace. Sincerely, Janet Abelson Mayor City of El Cerrito ---PAGE BREAK--- Revised Cal. P.U.C. Sheet No. 31432-E Cancelling Original Cal. P.U.C. Sheet No. 23061-E Pacific Gas and Electric Company San Francisco, California U 39 Electric Sample Form No. 79-1030 Declaration by Mayor or Chief County Administrator Regarding Investigation Pursuit or Implementation of Community Choice Aggrega Advice Letter No: 4009-E Issued by Date Filed March 5, 2012 Decision No. Brian K. Cherry Effective December 20, 2012 Vice President Resolution No. E-4523 1C10 Regulation and Rates Please Refer to Attached Sample Form Agenda Item No. 5(C) Attachment 4 ---PAGE BREAK--- Automated Document, Preliminary Statement Part A Form 79-1030 Advice 4009-E Revised March 2012 DECLARATION BY MAYOR OR CHIEF COUNTY ADMINISTRATOR REGARDING INVESTIGATION, PURSUIT OR IMPLEMENTATION OF COMMUNITY CHOICE AGGREGATION I, [name], state as follows: 1. I am the mayor, chief county administrator, or chief executive officer of [name of city, county, or public agency,]. 2. I am authorized to make this declaration on behalf of [check appropriate box] [ ] a city, or [ ] a county, or [ ] an eligible public agency 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 (“CCA” or “Potential CCA”). 3. I understand that all of the confidential information provided by PG&E to the city, county, or public agency indicated above is subject to the terms and conditions of the Nondisclosure Agreement between these two entities and is provided for the sole purpose of enabling the city, county or public agency to investigate, pursue or implement community choice aggregation. 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 , at [city, state]. [Signature] ---PAGE BREAK--- Pacific Gas and Electric Company San Francisco, California U 39 Revised Cal. P.U.C. Sheet No. 32646-E* Cancelling Revised Cal. P.U.C. Sheet No. 32235-E Electric Sample Form No. 79-1031 Community Choice Aggregator Non-Disclosure Agreement Advice Letter No: 4221-E Issued by Date Filed May 2, 2013 Decision No. 12-11-015 Brian K. Cherry Effective May 2, 2013 D.12-08-045, D.11-07-056 Vice President Resolution No. 1C7 Regulatory Relations Please Refer to Attached Sample Form ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 1 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 This Non-Disclosure Agreement (“Agreement”) is entered into by and between Pacific Gas and Electric Company (“Utility”) and a [describe political entity] as of (“Effective 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 tariffs (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/Community may obtain specified confidential customer information from Utility pursuant to Tariff Schedules E-CCAINFO-Information (as modified hereafter from time to time) (“E-CCAINFO”) as a community choice aggregator, as defined by PU Code Section 331.1, solely in order to investigate, pursue or implement community choice aggregation pursuant to PU Code Section 366.2, et seq. or confidential customer electric and gas consumption data to implement energy efficiency programs pursuant to PU Code section 381.1. The provisions of this Agreement and E-CCAINFO govern the disclosure of Utility’s confidential customer information to CCA/Community (“Disclosure Provisions”) under Schedules E-CCAINFO and E-CCA. The Parties hereby mutually agree that: 1. Subject 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 investigating, pursuing or implementing community choice aggregation pursuant to PU Code Section 366.2, et seq. as a community choice aggregator or to implement energy efficiency programs pursuant to PU Code section 381.1. Such disclosure is subject to the following legal continuing representations and warranties by CCA: CCA represents and warrants that, pursuant to PU Code Section 331.1, it is either a city, county, or other entity as defined in PU Code Section 331.1 whose governing board has elected to combine the loads of its residents, businesses, and municipal facilities in a community wide electricity buyers program or (ii) a city, county, or other entity as defined in PU Code Section 331.1 that intends to actively investigate or pursue delivery of electric service to customers located within the geographic territory of the CCA, and that to investigate, pursue or implement community choice aggregation under PU Code Section 366.2 et seq., or to implement energy efficiency programs pursuant to PU Code section 381.1; ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 2 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 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; CCA represents and warrants that the authorized representative(s) executing this Agreement is authorized to execute this Agreement on behalf of the CCA; and 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 under PU Code Section 366.2 as a community choice aggregator or to implement energy efficiency programs pursuant to PU Code section 381.1, and that any other use of the information may permit Utility to suspend providing further information hereunder. CCA represents and warrants that it will implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure, and prohibits the use of the data for a secondary commercial purpose not related to community choice aggregation or energy efficiency purposes without the customer’s prior consent to that use. 2. The confidential and proprietary information disclosed to CCA in connection herewith may include, without limitation, the following billing information about Utility Customers: Customer-specific information from the current billing periods as well as prior 12 months consisting of: service agreement number, name on agreement, service address with zip code, mailing address with zip code, telephone number, meter number, kWh usage, maximum demand where available, electrical or gas consumption data as defined in PU Code Section 8380, other data detailing electricity or gas needs and patterns of usage, Baseline Zone, CARE participation, End Use Code (Heat Source) Service Voltage, Medical Baseline, Meter Cycle, Bill Cycle, Balanced Payment Plan and other plans, HP Load and Number of Units and rate schedule for all accounts within the CCA's territory. In addition, PG&E will provide the CCA the following additional information regarding customers currently enrolled in its CCA service: current and historical billing information for non-CCA services provided by PG&E or other electric service providers (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. ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 3 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 3. Except for electric and gas usage information provided to CCA pursuant to this Agreement, Confidential Information does not include information that CCA proves was properly in the possession of CCA at the time of disclosure; is or becomes publicly known through no fault of CCA, its employees or representatives; or 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 community choice aggregator or to implement energy efficiency programs pursuant to PU Code section 381.1 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. CCA shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure and prohibits the use of the data for a secondary commercial purpose not related to community choice aggregation or energy efficiency. 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 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. ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 4 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 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 shall comply with the consumer protections concerning subsequent disclosure and use that are in Attachment B to CPUC Decision No. 12-08-045. 8. 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. 9. 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, 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. 10. 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 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. 11. 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 ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 5 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 may be withheld due to the confidential nature of the information, data and materials covered. 12. 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. 13. 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. 14. 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. IN WITNESS WHEREOF, the authorized representatives of the Parties have executed this Agreement as of the Effective Date. PACIFIC GAS AND ELECTRIC COMPANY (Customer) (Signature) (Signature) (Type/Print Name) (Type/Print Name) (Title) (Title) (Date) (Date) ---PAGE BREAK--- COMMUNITY CHOICE AGGREGATOR NON-DISCLOSURE AGREEMENT Automated Document, Preliminary Statement Part A Page 6 of 6 Form 79-1031 Advice 3383-G/4221-E Revised May 2013 EXHIBIT A NON-DISCLOSURE AGREEMENT FOR CCA EMPLOYEES OR REPRESENTATIVES I, declare under penalty of perjury that I am employed as at (employer and address); and I have personally reviewed the attached COMMUNITY CHOICE AGGREGATOR 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: