HomeMy WebLinkAboutStaff Report 3691
City of Palo Alto (ID # 3691)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 5/13/2013
City of Palo Alto Page 1
Summary Title: Approval of NCPA Non-disclosure Agreement
Title: Approval of a Resolution Delegating Authority to the City Manager, or
his Designee, to Execute and Administer the Northern California Power
Agency Agreement Regarding the Use and Non-disclosure of Information
From: City Manager
Lead Department: Utilities
Recommendation
Staff recommends that the City Council adopt the attached resolution (Attachment A) which
delegates authority to the City Manager, or his designee, to execute and administer the
Northern California Power Agency (NCPA) Agreement Regarding the Use and Non-Disclosure of
Information for NCPA Projects (NDA) and to amend exhibits to the NDA as needed.
Executive Summary
As a member and signatory to the NCPA Joint Powers Agreement, a participant/owner of the
Calaveras Hydroelectric Project, and as a recipient of billing and scheduling coordination
services from NCPA, the City is entitled to potentially commercially sensitive data and
information related to the City’s load and electric supply resources. Typically the data is
accessed through the NCPA Data Portal, which is a secured web service, but may also be
obtained through reports created by NCPA using information derived from the Data Portal.
Because some of the data contained within the Data Portal is considered commercially sensitive
and could be used in a manner to gain an unfair market advantage, NCPA has been directed by
its governing board to require all entities requiring access to the Data Portal to execute the NDA
(Attachment B) effective July 1, 2013.
For the City, access to information on the Data Portal is essential to complete the functions of
settling NCPA monthly bills and developing strategies to manage electric supply commodity
costs and optimize the value of its supply resources. To maintain the City’s access to the Data
Portal and staff’s ability to effectively perform such functions execution of the NDA is required.
City of Palo Alto Page 2
Discussion
On March 21, 2013, NCPA’s governing board, the NCPA Commission, adopted the NDA for use
by all of its members and agencies accessing information through the NCPA Data Portal through
NCPA Resolution No 13-42 (Attachment C). The NDA was developed through a collaborative
effort with its member organizations and respective legal counsels.
The NDA is a means for NCPA and its members to supplement their culture of compliance by:
(a) formally acknowledging the commercially sensitive nature of much of the data and
information NCPA creates and manages; (b) formally acknowledging the prohibition and
restrictions on sharing commercially sensitive data and information with third parties under
applicable law; and (c) mutually agreeing to treat commercially sensitive data and information
as “Confidential Information” to the extent permitted by federal and state laws.
As part of the NDA, the City is required to select and maintain one staff person to act in an
administrative role to coordinate communication between the City and NCPA relating to the
City’s access to the NCPA Data Portal and to administer and ensure adherence to the NDA.
Additionally, the NDA contains two exhibits needed to allow access to the NCPA Data Portal.
Exhibit A is required by City employees requiring direct access to the Data Portal. Exhibit B is to
be signed by employees of City contracted consultants receiving information deemed to be
confidential by NCPA.
Resource Impact
Approval of the resolution authorizing the City Manager to execute and administer the NCPA
NDA will not impact the City’s Fiscal Year (FY) 2013 Electric Operating Budget. Execution and
administration of the NDA is expected to occur in FY 2014, and will be carried out with existing
resources within the proposed FY 2014 Electric Operating Budget.
Policy Implications
Acquiring data through the NCPA Data Portal supports the Council-approved 2011 Utilities
Strategic Plan objective to manage supply costs.
Environmental Impacts
This activity would not result in a direct or reasonably foreseeable indirect change in the
physical environment and is therefore not a “project” for purposes of Section 21065 of the
California Environmental Quality Act. No environmental review is necessary.
Attachments:
Attachment A: Resolution NCPA Non-Disclosure Agreement (PDF)
City of Palo Alto Page 3
Attachment B: NCPA Non-disclosure Agreement (PDF)
Attachment C: NCPA Commission Resolution 13-42 (PDF)
*NOT YET APPROVED*
130417 dm 015 NCPA Reso 1
ATTACHMENT A
Resolution No. _____
Resolution of the Council of the City of Palo Alto Authorizing the City
Manager to Execute and Administer the Non-Disclosure Agreement
Regarding the Use of Information Between the Northern California
Power Agency and the City of Palo Alto
R E C I T A L S
A. The Northern California Power Agency (“NCPA”) was formed in 1968 for
the purpose of utilizing the joint action of participating public power entities to pursue
common interests for the benefit of all such members; and subsequently revised on April 1,
1973 and January 1, 2008. The City of Palo Alto (“City”) is a member of NCPA as one of the
original signatories to the NCPA Joint Power Agency Agreement.
B. The City as a participant in the Calaveras Hydroelectric Generation
Project (“Calaveras”) and as a signatory to several NCPA agreements receives services from
NCPA including scheduling coordination, settlements and billing with the California
Independent System Operator (“CAISO”); the City’s wholesale electric suppliers; renewable
energy suppliers; and the Western Area Power Administration (“Western”).
C. In providing such services to the City, NCPA creates and manages data
and information that may be of a commercially sensitive nature as defined under various
Federal and California State laws and regulations. NCPA makes this data available to the City
via a secured web-service (“NCPA Data Portal”) or through other means such as reports
derived via data from the NCPA Data Portal. The City is entitled to access and use the data
and information directly attributable to its proportionate participation share of Calaveras, its
load and supply resources. The City has established individual user accounts to the NCPA Data
Portal to aid in billing settlements and the formulation of strategies to manage costs and value
of existing resources and load.
D. On March 21, 2013 NCPA’s governing board, (“NCPA Commission”)
approved “The NCPA Agreement Regarding The Use And Non-Disclosure Of Information For
NCPA Projects” (“NDA”) to contractually facilitate future access to the NCPA Data Portal and
commercially sensitive data and information by its members’ staff and consultants effective
July 1, 2013.
E. The NDA requires certain administrative functions including: i) managing
access to the NCPA Data Portal; ii) maintaining the confidentiality of certain information; iii)
establishing internal controls and processes; iv) ensuring proper training of City staff utilizing
the Data Portal; and v) proper execution of the NDA and exhibits.
*NOT YET APPROVED*
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130417 dm 015 NCPA Reso
F. The information accessed via the NCPA Data Portal is vital to the
business operations and financial accounting practices of the City and losing access to the
NCPA Data Portal will limit the City’s ability to effectively manage its electric load, resources
and costs.
The Council of the City of Palo Alto does RESOLVE as follows:
SECTION 1. The Council hereby authorizes the City Manager, or his designee, to
execute and fully carryout the administrative functions as required by the NDA.
SECTION 2. Costs associated with the execution and administration of the NDA are
considered negligible and will be included in the as part of the Utilities Department’s annual
Electric Operating Budget.
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*NOT YET APPROVED*
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130417 dm 015 NCPA Reso
SECTION 3. The Council hereby finds that this ordinance is exempt from the
provisions of the California Environmental Quality Act pursuant to Section 15061(b)(3) of the
California Environmental Quality Act Guidelines, because it can be seen with certainty that
there is no possibility of significant environmental effects occurring as a result of the adoption
of this ordinance.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:
_____________________________ _____________________________
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
_____________________________ ______________________________
Senior Asst. City Attorney City Manager
______________________________
Director of Administrative Services
______________________________
Director of Utilities
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NORTHERN CALIFORNIA POWER AGENCY
AGREEMENT REGARDING THE USE AND
NON-DISCLOSURE OF INFORMATION
FOR NCPA PROJECTS
WHEREAS, pursuant to NCPA project power sale agreements, associated operating
agreements, facility agreements, and other applicable service agreements (collectively referred
to as “NCPA Project”), the Receiving Party, as a participant in one or more NCPA Projects, is
entitled to receive certain Confidential Information from NCPA concerning the operation of
NCPA Projects in which it holds an entitlement share, expressed as either a generation
entitlement share or project participation percentage, to output from the NCPA Project; and
WHEREAS, NCPA intends to provide NCPA Project data, including Confidential
Information, to the Receiving Party primarily through its Data Portal; and
WHEREAS, some of the Confidential Information provided includes data relating to the
Receiving Party’s entitlement share or project participation percentage of the NCPA Project
including operations, bids and costs; and
WHEREAS, the parties recognize that NCPA Project data designated as Confidential
Information has the potential to be misused for unlawful market purposes; and
WHEREAS, the parties have agreed to put procedures in place to prevent the use or
disclosure of the Confidential Information in a manner that might be construed to violate federal
or California law;
THEREFORE, in consideration of the mutual covenants in this Agreement, NCPA and the
Receiving Party agree to contractual limits and protection concerning the disclosure and use of
the Confidential Information, as follows:
1. Purpose, Scope and Definition. The purpose of this Agreement is to permit the Receiving
Party to review and use the Confidential Information to which it is entitled pursuant to its generation entitlement share or project participation percentage in an NCPA Project, for any
lawful purpose, subject to the restrictions on disclosure to Third Parties and uses set forth herein. Confidential Information under this Agreement consists of commercially sensitive information,
which may include, but is not limited to, price, quantity, location or timing of electric industry
marketing decisions, provided by NCPA to the Receiving Party, whether through the Data Portal or otherwise, pertaining to the Receiving Party’s generation entitlement share or project
participation percentage in NCPA Projects. Except as otherwise provided in Paragraphs 4 and 5, Confidential Information includes:
(a) All written materials marked “Confidential” or “Proprietary” or “Sensitive” or other words of similar import provided by NCPA to the Receiving Party;
(b) All observations of equipment or data, including computer screens, and oral disclosures
that are indicated as “Confidential” or “Proprietary” or “Sensitive” or other words of
similar import at the time of the observation or the disclosure; and
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(c) Notes, copies printouts or summaries of or regarding the Confidential Information
prepared by the Receiving Party or its employees, agents, consultants, attorneys or
members.
2. Non-Disclosure. Subject to Paragraph 4 below, the Receiving Party shall keep the
Confidential Information in strict confidence and shall not disclose such information or
otherwise make it available, in any form or manner, to any other person or entity (a “Third
Party”) other than its employees, agents, consultants, attorneys, or members who are reasonably
necessary to assist the Receiving Party with decisions regarding its interest in the NCPA
Project. Employees, agents, consultants, attorneys and members shall be classified as follows:
(a) Designated Reviewers are persons authorized by the Receiving Party Administrator to
access the Data Portal. The Receiving Party shall cause any such Designated Reviewer
who is an employee of the Receiving Party to execute Exhibit A to the Receiving Party’s
Agreement prior to such employee receiving or viewing Confidential Information
through the Data Portal. The Receiving Party shall cause any such Designated Reviewer
who is a consultant of the Receiving Party to execute Exhibit B to the Receiving Party’s
Agreement prior to such consultant receiving or viewing Confidential Information
through the Data Portal.
(b) Designated Recipients are persons who are not authorized to access the Data Portal, but
who are authorized to view Confidential Information from the Data Portal as part of
their work in assisting the Receiving Party with decisions regarding its interest in the
NCPA Project. The Receiving Party shall cause any such Designated Recipient who is
an employee of the Receiving Party to review this Agreement and shall take such
measures as it deems prudent to ensure that the Designated Recipient understands both
the Receiving Party’s and his or her responsibilities with regard thereto. The Receiving
Party shall cause any such Designated Recipient who is a consultant to execute Exhibit
B to this Agreement prior to such consultant receiving or viewing Confidential
Information.
(c) Decision Makers are persons who are members of the governing board, including, but
not limited to, city council, governing board, and utility commissions, of the Receiving
Party, executives of the Receiving Party or attorneys for the Receiving Party who are
not authorized to access the Data Portal but who may review reports and
recommendations summarizing aggregated data that may be based on Confidential
Information, in the course of making or approving decisions related to the Receiving
Party’s decisions about its NCPA Project interests. The Receiving Party shall take such
measures as it deems prudent to ensure that Decision Makers understand the Receiving
Party’s and their responsibilities with regard thereto.
(d) A copy of each executed Exhibit A or B shall be provided to NCPA.
It is the ongoing responsibility of the Receiving Party to ensure that: (i) each Exhibit A
and Exhibit B is accurate; (ii) each Exhibit A and Exhibit B permits access only to a current
Designated Reviewer or Designated Recipient of the Receiving Party; (iii) each Designated
Recipient or Designated Reviewer receiving the Confidential Information understands the
scope of permissible use; and (iv) each new Exhibit A and Exhibit B, and any notice of
cancellation of an Exhibit A or Exhibit B, is immediately submitted to NCPA. The Receiving
Party shall immediately report to NCPA any unauthorized access to NCPA’s Data Portal or
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other breach of this Agreement.
3. Use of Confidential Information.
(a) It is understood and agreed by the Receiving Party that both parties have obligations under
federal and California law to safeguard the Confidential Information against use or
disclosure for purposes inconsistent with federal or California antitrust laws or for
purposes of market manipulation.
(b) The Receiving Party may use the Confidential Information received hereunder for any
lawful purpose, provided that it does not disclose the Confidential Information to
Third Parties other than Designated Reviewers, Designated Recipients, or Decision
Makers as provided in Paragraph 2, and receives similar commitments as provided in
Paragraph 2.
(c) Receiving Party shall take all prudent measures to ensure that its Designated Reviewers,
Designated Recipients and Decision Makers use the Confidential Information in
compliance with this Agreement and with all laws and regulations, and safeguard its
confidentiality.
4. Exceptions to Non-Disclosure. Notwithstanding Paragraph 2 above, a party to this
Agreement shall not have breached any obligation under this Agreement if the Confidential
Information is disclosed to a Third Party when the Confidential Information:
(a) was in the public domain at the time of such disclosure or is subsequently made available
to the public consistent with the terms of this Agreement; or
(b) had been received by the Receiving Party prior to the time of disclosure through other
means without restriction on its use, or had been independently developed by the
Receiving Party without use of Confidential Information, as demonstrated through
documentation; or
(c) is subsequently disclosed to the Receiving Party by a Third Party without restriction on
use imposed by the Third Party and without breach of any law, agreement or legal duty
to the Third Party; or
(d) 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 or other governmental
authority of competent jurisdiction.
5. Notice of Pending Third Party Disclosure.
(a) In the event that a court or other governmental authority of competent jurisdiction issues
an order, subpoena or other lawful process requiring the disclosure of the Confidential
Information, the Receiving Party shall notify NCPA immediately upon receipt thereof to
allow NCPA to be involved in such proceeding for the purpose of safeguarding the
Confidential Information.
(b) In the event that the Receiving Party is a federal, state, or local governmental entity
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and/or is subject to public records law or regulation, including but not limited to the
federal Freedom of Information Act (FOIA), U.S. Code Title 5, Section 552, as
amended, or the California Public Records Act, California Governmental Code Sections
6250, et seq., the Receiving Party shall: (i) notify NCPA immediately upon receipt of a
request for public records that include all or part of the Confidential Information; and
(ii) subject to sub-paragraph (c), treat the requested Confidential Information as exempt
from disclosure.
(c) The Receiving Party shall not be in violation of this Agreement if it complies with an
order of a court or governmental authority, or a public records law or regulation,
requiring disclosure of the Confidential Information, after: (i) NCPA has unsuccessfully
sought to maintain the confidentiality of such information as provided herein; (ii) NCPA
has notified the Receiving Party in writing that it will take no action to maintain such
confidentiality; or (iii) counsel for the Receiving Party has determined that disclosure is
required under a public records law or regulation, the counsel for the Receiving Party has
provided NCPA with three (3) business days written notice of such determination, and
NCPA has not responded or sought an order restraining disclosure within such time
period.
6. Term.
(a) This Agreement shall remain in effect unless and until NCPA provides ten (10) days prior
written notice to the Receiving Party of its termination. Termination shall not extinguish
any claim, liability or cause of action under this Agreement existing at the time of
termination.
(b) Provisions Surviving Termination. The provisions of Paragraphs 2, 3, 4, and 5 shall
survive the termination of this Agreement for a period of five (5) years.
(c) D e s t r u c t i o n o f D o c u me n t s . N o t h i n g i n t h i s Agr e e me n t
s h a l l pre v e n t t h e R e c e i v i n g Pa r t y f r om o t h e r w i s e
l a w f u l d e s t r u c t i o n o f d o c u m e n t s o r f i l e s c o n t a i n i n g
C o n fi d e n t i al I nfor ma t i o n i n the ordinary course of
b u s i n e s s , p r o v i d e d t h a t t h e me t h o d o f d e s t r u c t i o n
s a f e g u a r d s t h e C o n f i d e n t i a l I n f o r ma t i o n .
7. Notices.
(a) Administrator(s) for Data Portal Access. Receiving Party shall designate one (1) person
to act as Administrator on its behalf, and shall provide the name, street address,
telephone number, facsimile number and email address of such Administrator to
NCPA’s Representative designated under sub-paragraph (b) prior to Receiving Party
being granted access to the Data Portal. Either party may change the identity of its
Administrator or the address for notice to its Administrator by providing notice to the
other.
The Receiving Party’s Administrator shall administer access to the Data Portal on behalf
of Receiving Party’s employees, agents, consultants, attorneys or members, including
but not limited to making requests for new user accounts, maintenance and
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administration of existing user accounts, and administration of digital security
certificates. NCPA’s Administrator shall administer on behalf of NCPA all such
requests by Receiving Party’s Administrator.
All communications, pursuant to this sub-paragraph, from Receiving Party’s
Administrator to NCPA’s Administrator shall be in writing, via email, to the following
address: dataportaladmin@ncpa.com.
(b) Representatives and Addresses. All notices, requests, demands, and other
communications required or permitted under this Agreement other than those between
Administrators shall be in writing and shall be either: (i) delivered in person; (ii) sent by
U.S. certified mail, postage prepaid; or (iii) sent by overnight delivery; addressed as
follows:
Receiving Party:
Entity Name: ____________________________
Name of Contact (person or position):
____________________________
Address: ____________________________
Telephone: ____________________________
Facsimile: ____________________________
Email: ____________________________
NCPA:
Dave Dockham
NCPA Assistant General Manager
651 Commerce Drive
Roseville, CA 95678-6411
Phone: 916.781.3636
Fax: 916.783.7693
and
Michael Dean
NCPA General Counsel
555 Capitol Mall, Suite 1200
Sacramento, California 95814
Phone: 916.556.1531
Fax: 916.556.1516
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Changed Representatives and Addresses. A party hereto may from time to time change
its representative or address for the purpose of notices to that party by notice specifying a
new representative or address.
(c) Effective Date of Notices. All notices and other communications required or permitted
under this Agreement that are addressed as provided in this Paragraph 7 shall be
effective upon delivery.
8. Complete Agreement; No Other Rights.
(a) This Agreement contains the complete and exclusive agreement of the parties 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. No change to this Agreement shall
be effective unless agreed to in writing by the parties hereto. Any conflict between the
language of this Agreement and any mark, stamp, annotation or other language
identifying something 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.
9. No Warranties or Representations. Any Confidential Information disclosed by NCPA
under this Agreement carries no warranty or representation of any kind, either express or implied.
The Receiving Party shall not be entitled to rely on the accuracy, completeness or quality of the
Confidential Information, even for the purpose stated in Paragraph 1.
10. Injunctive Relief. The Receiving Party agrees that, in addition to whatever other
remedies may be available to NCPA under applicable law, NCPA shall be entitled to obtain
injunctive relief with respect to any actual or threatened violation of this Agreement by the
Receiving Party, its Designated Recipients or any Third Party to whom Receiving Party
disclosed Confidential Information. The Receiving Party agrees that it shall bear all costs and
expenses, including reasonable attorneys’ fees, that may be incurred by NCPA in enforcing the
provisions of this paragraph, only if NCPA prevails in the litigation.
11. Governing Law. This Agreement is made in the State of California and shall be governed
by and interpreted in accordance with its laws.
12. Assignment. This Agreement shall be binding upon the parties, their successors, and
assigns. The Receiving Party shall not assign this Agreement without NCPA’s prior written
consent.
13. Construction of Agreement. Ambiguities or uncertainties in the wording of this
Agreement shall not be construed for or against any party, but shall be construed in the manner
that most accurately reflects the parties’ intent as of the date they executed this Agreement.
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14. Signature Authority. Each person signing below warrants that he or she has been duly
authorized by the party for whom he or she signs to execute this Agreement on behalf of that
party.
15. Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized
representatives as of the date set forth above.
NORTHERN CALIFORNIA POWER AGENCY
By: ____________________________
Name: Jim Pope
Title: General Manager Date:
RECEIVING PARTY:
____________________________
By: ____________________________
Name:
Title: Date:
EXHIBIT A
INDIVIDUAL AGREEMENT TO BE BOUND BY NON-DISCLOSURE AND
USE OF INFORMATION AGREEMENT FOR NCPA PROJECTS
The undersigned, (print or type name), employed as -
_________________ (title) by , hereby acknowledges that
he or she in his/her official capacity has received a copy of the NORTHERN
CALIFORNIA POWER AGENCY AGREEMENT REGARDING THE USE AND NON-
DISCLOSURE OF INFORMATION FOR NCPA PROJECTS in which the Receiving Party,
____________, has an entitlement interest, dated between the Northern
California Power Agency and the Receiving Party designated therein ("Agreement"). The
undersigned hereby acknowledges that the undersigned has read the Agreement and
understands the importance of maintaining the confidentiality of Confidential Information
(as defined in the Agreement), the provisions of the Agreement relating to such
confidentiality, and the limitations on the use of Confidential Information. In consideration
thereof, the undersigned agrees to be bound by all of the provisions of the Agreement.
Dated:
Signed:
Print Name:
Telephone:
Email:
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EXHIBIT B
CONSULTANT STATEMENT FOR
NON-DISCLOSURE AND USE OF INFORMATION AGREEMENT FOR NCPA
PROJECTS
Name of Consulting Entity:
Type of business and state in which business organization is formed (e.g. a California
corporation):
Located At (address of
Consulting Entity):
Has been engaged to provide technical support and analysis to the following entity:
__________________________________________________________________
Consulting Entity hereby acknowledges that it has received a copy of the
NORTHERN CALIFORNIA POWER AGENCY AGREEMENT REGARDING THE USE
AND NON-DISCLOSURE OF INFORMATION FOR NCPA PROJECTS in which the
Receiving Party, ________________________, has an entitlement interest, dated
between the Northern California Power Agency and the Receiving
Party designated therein ("Agreement"). Consulting Entity hereby acknowledges and agrees
that in order to access Confidential Information (as defined in the Agreement), Consulting
Entity must comply with the provisions of the Agreement, and it agrees to do so.
Consulting Entity acknowledges and agrees that its review of Confidential
Information is solely for the purpose of providing consultancy services to the Receiving
Party and that its use of Confidential Information shall be limited to the same. To the extent
that Consulting Entity provides technical support and analysis to parties who are not party
to this Agreement, Consulting Entity agrees that disclosure of Confidential Information to
such parties is prohibited by the terms and conditions of the Agreement.
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The undersigned agrees that he or she is authorized by the Consulting Entity to
execute this Consultant Statement to the Agreement.
Dated:
Consulting Entity:
By: (signature)
Print Name:
Telephone:
Email:
2025232.1