2-NDA for IPP RFI.docx

NON-DISCLOSURE AGREEMENT

(For Responders to the RFI: Future Operation of the IPP Coal Units)

1. Purpose The State has issued a Request for Information (“RFI”) to obtain information and ideas regarding the potential future operation of the Intermountain Power Project coal-fired generating units (“Coal Units”).

The State has established a virtual data room containing information regarding the Coal Units (“Confidential Information”). Responder seeks access to the data room solely for the purpose of preparing and submitting a response to the RFI and any subsequent request for proposals (the “Purpose”).

2. Definition of Confidential Information “Confidential Information” means all non-public technical, financial, operational, environmental, contractual, or other information disclosed or made available by the State (including through the data room) and all notes, analyses, compilations, studies, or other materials derived therefrom.

Confidential Information does not include information that: (a) is or becomes publicly available other than as a result of disclosure by Responder in violation of this Agreement; (b) was lawfully known to Responder prior to disclosure by the State; (c) is lawfully obtained from a third party not under a duty of confidentiality; or (d) is independently developed by Responder without use of the Confidential Information.

3. Confidentiality Obligations Responder shall: (1) Use the Confidential Information solely for the Purpose described above; (2) Restrict disclosure to employees, officers, consultants, or affiliates (“Representatives”) who have a legitimate need to know the information and are bound by confidentiality obligations no less restrictive than those contained herein; (3) Not disclose any Confidential Information to any other person without the prior written consent of the State; and (4) Exercise at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.

4. GRAMA

All materials and information provided by the State are subject to the Government Records Access and Management Act (“GRAMA”), Utah Code § 63G-2-101 et seq.

Responder acknowledges that: (a) The State is a governmental entity subject to GRAMA and cannot contractually waive its obligations thereunder; (b) Information submitted by Responder to the State may be subject to public disclosure under GRAMA unless it qualifies as a “protected record” or is otherwise exempt; (c) Under Utah Code § 63G-2-305(1) and (2), records containing trade secrets or commercial information that would, if disclosed, cause harm to the competitive position of the person submitting the information may be protected from disclosure; (d) To request protection under GRAMA, Responder must clearly mark each portion of its submission that it claims to be “PROTECTED” or “CONFIDENTIAL,” and provide a written statement justifying the claim under § 63G-2-309; and (e) The State will comply with GRAMA’s procedures and make reasonable efforts to notify Responder if a GRAMA request is received for records containing Responder’s Confidential Information, but ultimate disclosure determinations rest with the State’s records officer or court of competent jurisdiction.

5. Legal Restrictions on Disclosure If Responder or its Representatives are required by law, regulation, subpoena, or court order to disclose any Confidential Information, Responder shall (to the extent legally permissible) provide prompt written notice to the State to allow it to seek a protective order or other appropriate remedy. Responder shall disclose only that portion of the Confidential Information that is legally required and shall cooperate with the State in any efforts to limit disclosure.

6. Return or Destruction Upon completion of the RFI process or upon written request by the State, Responder shall promptly return or destroy all Confidential Information, including all copies, notes, and derivatives thereof, and certify such destruction in writing.

7. No License or Obligation Nothing in this Agreement grants any license or right under any patent, trademark, copyright, or other intellectual property right. Neither this Agreement nor disclosure of Confidential Information obligates the State to proceed with any transaction or issue any request for proposals.

8. Public Records Disclaimer Responder acknowledges that responses to the RFI themselves are “protected records” under GRAMA only until the earlier of: (a) execution of a contract directly relating to the RFI, or (b) a final determination not to enter into such a contract and two years have passed since issuance of the RFI (Utah Code § 63G-2-305(21)). After that period, the State may release such records in accordance with GRAMA.

9. Term and Termination This Agreement shall remain in effect for five (5) years from the Effective Date or until all Confidential Information becomes publicly available without breach of this Agreement, whichever occurs first.

10. Remedies Responder acknowledges that any unauthorized disclosure of Confidential Information may cause irreparable harm to the State for which monetary damages may be inadequate. The State shall be entitled to seek injunctive or equitable relief in addition to any other remedies available at law or equity.

11. Governing Law and Venue This Agreement shall be governed by the laws of the State of Utah without regard to conflict-of-laws principles. Venue for any dispute shall lie in the Third Judicial District Court of the State of Utah, Salt Lake County.

12. Entire Agreement This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior discussions or agreements, oral or written. Any modification must be in writing and signed by both parties.

STATE OF UTAH

Office of Energy Development By: _______________________________ Name: _____________________________ Title: _____________________________ Date: _____________________________

RESPONDER

By: _______________________________ Name: _____________________________ Title: _____________________________ Date: _____________________________