HomeMy WebLinkAboutEXCEL ENERGY SERVICES - CONTRACT - AGREEMENT MISC - CONFIDENTIALITY AND INFORMATION PURCHASE AND SALE USAGE AGREEMENTCONFIDENTIALITY AND INFORMATION PURCHASE AND SALE
AND USAGE AGREEMENT
This Confidentiality and Information Purchase and Usage Agreement ("Agreement") is
effective as of the 29th day of May, 2008, by and between
❑ XCEL ENERGY INC., a Minnesota Corporation, or
® XCEL ENERGY SERVICES INC., a Delaware Corporation acting as agent for Public
Service Company of Colorado, a Colorado corporation, or
❑ SOUTHWESTERN PUBLIC SERVICE COMPANY, a New Mexico Corporation, or
❑ PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, or
❑ PUBLIC SERVICE COMPANY OF COLORADO, HAYDEN OPERATING AGENT,
a Colorado Corporation,
(hereinafter referred to as "Company"), and City of Fort Collins, having its principal office at
700 Wood Street, Fort Collins CO 80521, (hereinafter referred to as "City").
"Party" or "Parties" refers to Company and City individually or collectively.
WITNESSETH:
WHEREAS, the Parties hold information and data which is proprietary to each Party (or to its
Affiliates) respectively and desire to share certain confidential and proprietary information with
each other for the purpose of City performing load data analysis for its customers for the
allocation of its utility costs and for its electric rate design which is more fully described in
Exhibit A.
NOW, THEREFORE, the Parties agree as follows:
1. "Confidential Information" includes any and all information in connection with the
above referenced matter, including but not limited to, all oral, written, graphical, and electronic
information disclosed to the Party receiving the information. If Confidential Information
disclosed is written, recorded, graphical or otherwise in a tangible form, it may be labeled as
"proprietary" or "confidential" or with a similar legend denoting confidentiality or it may be
otherwise verbally designated as such. For the avoidance of doubt, Confidential Information of
Xcel Energy Services Inc. includes Confidential Information held by its Affiliates.
2. The Parties agree not to use or disclose Confidential Information except for the
purpose of the above referenced matter. The Parties agree only to disclose the Confidential
Information received from each other to the Parties' respective employees, agents, and board and
committee members whose duties justify their need to know such Confidential Information. The
Party disclosing Confidential Information shall insure compliance by its employees, agents, and
board and committee members with the terms and conditions of this Agreement. In addition to
the foregoing, it is understood by the 'Parties that the Confidential Information shall be used by
the Light & Power Utility of City for the purpose of the above referenced matter and that such
Confidential Information is not to be used against the interests of Company in any way, or
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shared, borrowed or sold to any other utility, vendor, entity or any person. Any information
released to the public by City pursuant to Paragraph 15 of this Agreement which may contain the
results of using such Confidential Information shall be aggregated to a level no less than at the
monthly customer class level.
3. Payment Terms. City agrees to pay Company for the 2007 load survey data, and any
subsequent year load survey data, during the term of this Agreement, in accordance with the
terms described in Exhibit A.
4. Confidential Information is not information which:
(a) now is or becomes generally known to the public without fault of the Party
receiving such information; or
(b) is proven by written documentation to have been in the receiving Party's
possession prior to its receipt from the disclosing Party; or
(c) is received from an independent third party who is not under an obligation of
confidentiality.
(d) is legally required to be disclosed by statute, regulation or other governmental
action; provided, however, that prompt notice of any request or of said judicial or
other governmental action shall be given to the disclosing Party and that the
disclosing Party shalt be afforded the opportunity (consistent with the legal
obligations of the receiving Party) to exhaust all reasonable legal remedies to
maintain the Confidential Information in confidence.
5. To the extent the Party receiving Confidential Information is required by an order of
court to reveal such information, that Party will promptly notify the Party which provided the
Confidential Information in order to allow that Party to take necessary action including a
protective order, as appropriate, and will cooperate with the disclosing Party in protecting the
confidentiality of the Confidential Information in a lawful manner.
6. Disclosure of Confidential Information by either Party under this Agreement does not
grant the receiving Party any right or license to use the Confidential Information unless explicitly
set forth herein.
7. The furnishing of Confidential Information hereunder shall not obligate either Party to
enter into any further agreement or negotiation with the other or to refrain from entering into an
agreement or negotiation with any other party.
8. All Confidential Information, unless otherwise specified in writing, remains the
property of the disclosing Party, and must be used by the receiving Party only for the purpose
intended by the disclosing Party
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9. Confidential Information supplied is not to be reproduced in any form except as
required to accomplish the intent of this Agreement.
10. All Confidential Information must be retained by the receiving Party in a secure place
with access limited to only such of the receiving Party's employees (or agents who have a non-
disclosure obligation at least as restrictive as this Agreement) who need to latow such
information for purposes of this Agreement, and to such third parties as the disclosing Party has
consented to by prior written approval. The receiving Party must provide the same care to avoid
disclosure or unauthorized use of the Confidential Information as it provides to protect its own
confidential and proprietary information.
11. This Agreement shall become effective as of the date first above written and shall
terminate on the date that is the later of (i) three (3) years thereafter, or (ii) two years following
the final date of receipt by City of load data or other Confidential Information from Company.
12. Any notice or other communications required or permitted to be given pursuant to this
Agreement shall be confirmed in writing and shall be deemed properly given when hand
delivered, sent by overnight mail service, mailed certified mail, return receipt requested, or
transmitted by facsimile with date and sending party identified to the following addresses:
To Xcel Energy Services Inc: Xcel Energy Services Inc., as agent for
Public Service Company of Colorado
550 15°i Street, Suite 900
Denver CO 80202
Attn: Director, Credit & Contract Administration
Fax: (303) 571-6450
To City of Fort Collins: Electric Utilities, City of Fort Collins
ATTN: Mrs. Opal Dick
P.O. Sox 580
Fort Collins, CO 80522
970-221-6778
Either Party may by written notice to the other Party at the address such other Party has provided
above, change the address details above at which notices or other communications are to be
given to it by such other Party.
13. Each Party warrants that it has the right to disclose the Confidential Information
which it will disclose to the other patty pursuant to this Agreement. Otherwise, neither Party
makes any representation or warranty, express or implied, with respect to any Confidential
Information. Neither Party is liable for indirect, incidental, consequential, or punitive damages
of any nature or kind resulting from or arising in any manner whatsoever in connection with this
Agreement.
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14. The Parties acknowledge that a receiving Parry's unauthorized disclosure or use of
Confidential Information may result in irreparable harm. The Parties, therefore, agree that in the
event of violation or threatened violation of this Agreement, without limiting the rights and
remedies of each Party to seek direct damages, a temporary restraining order and/or an injunction
to enjoin disclosure of Confidential Information may be sought against the Party who has
breached or threatened to breach this Agreement and the Party who has breached or threatened to
breach this Agreement agrees not to raise the defense of an adequate remedy at law.
15. All media releases and public announcements by either Party relating to this
Agreement, its subject matter, or the purpose of this Agreement must be in written form signed
by both Parties prior to the release or announcement.
16. (a) This Agreement is governed by and construed under the laws of the State of
Colorado.
(b) This Agreement represents the entire understanding between the Parties, and the
terms and conditions of this Agreement supersede the terms of any prior
agreements or understandings, express or implied, written or oral.
(c) This Agreement may not be amended except in written form signed by both
Parties.
(d) The provisions of this Agreement are to be considered as severable, and in the
event that any provision is held to be invalid or unenforceable, the Parties intend
that the remaining provisions will remain in full force and effect to the extent
possible and in keeping with the intent of the Parties.
(e) City agrees to provide Company, at no cost to Company, with a copy of all study
results developed by City from use of Company's Confidential Information.
(f) There are no third party beneficiaries to this Agreement.
(g) Failure by a party to enforce or exercise any provision, right or option contained
in this Agreement will not be construed as a present or future waiver of such
provision, right or option.
(h) Each Party agrees not to circumvent the other Party by using Confidential
Information or contacts provided or enter into negotiations with an individual(s)
or entity(s) that one Party may introduce to the other Party.
(i) The Parties recognize that the business planning materials and information
which they may share with the other are in may respects proprietary in nature,
and as such the Parties agree that neither Party will use anything that they may
learn from the other Party, except generic industry related information, in such a
way as to compete with the other.
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(j) This Agreement shall not be assigned by any Party, by operation of law or
otherwise, without the prior written consent of the other Party (except that, for
the avoidance of doubt, this Agreement may be enforced against the receiving
party by any acquirer of disclosing party or its businesses). This Agreement will
inure to the benefit of, and shall be binding upon, the Parties' respective
successors and permitted assigns.
IN WITNESS WHEREOF, the Parties have caused this Confidentiality Agreement to be
executed by their respective duly authorized representatives as of the dates shown below.
Xcel Energy Services Inc., acting City of Fort Collins
as agent for Public Service Company
of Colorado �rI
By.
Name: %%t r ✓i ,,-h/G �n Nam �_f%rtil5 C�!l %/G,.�.
Title: J/i?r;C �2 r� Title: 12e6L n� po,2,1,wgq (f c
il'7 E=- C>7-
Date: �� Date:
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EXHIBIT A
Regarding the purchase of electric use load data, the definitions of such data, the restrictions of use of such data and
the agreed upon price of this data.
Definition of load data purchased:
Load survey data from the sample meters used in the state of Colorado for the following rate classes:
• Rate R (residential general)
• Rate C (commercial)
• Rate GS (secondary general)
This data will be for 2007 and will consist of the following information for each strata for each month (12 months
total) for each of the above 3 rate classes:
• The boundaries defining each strata (Kwh, Kw or year of construction)
• Each month's average kWh
• The average monthly maximum individual demand
• The average individual contribution to class peak demand with time and date of the associated peak
• The average individual contribution to system peak demand with time and date of the associated peak
• Statistical precision of all estimates
Understanding of the restrictions of use of this information:
This information will be used by the Light & Power Utility of the City of Fort Collins for load data analysis of its
customers, for the allocation of its utility costs and for its electric rate design. This detailed information is not to be
shared, borrowed or sold to any other utility or vendor. Any information released to the public by City pursuant to
Paragraph 15 of this Agreement which may contain the results of using this data will be aggregated to a level no less
than at the monthly customer class level.
Price of data:
2007 2008
Residential & Small Commercial; $22,500 $20,000
Secondary General; $13,500 $12,000.
Total price of 2007 data is $36,000,
Total price of 2008 data is $32,000
Pricing for any subsequent year data is subject to the mutual agreement of the Parties.
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