ESBD_383106_1731946785735_18-NDA_LCD.docx

CONFIDENTIALITY AGREEMENT

This confidentiality agreement (the “Agreement”) is entered into by and between the Lower Colorado River Authority (“LCRA”) and the party identified in the signature block (“Receiving Party”). Collectively, LCRA and Receiving Party may be referred to as the “Parties” and separately as a “Party”. In consideration of the Purpose as defined below, the sufficiency of which is acknowledged by the Parties and which would not occur in the absence of this Agreement, the Parties agree as follows:

A. Purpose. The information shared by LCRA under this Agreement is provided in connection with LCRA's solicitation of goods or services for Lane City Dam Construction Services (the "Solicitation"), Receiving Party's desire to participate in the Solicitation, and the potential negotiation and execution of a separate contract between the Parties (the “Related Contract”), and for no other purpose (collectively the “Purpose”).

B. Term. The term of this Agreement begins on the date fully executed by the Parties and ends:

(i) If LCRA enters into a Related Contract with Receiving Party, the date the Related Contract terminates; or

(ii) If LCRA does not enter into a Related Contract with Receiving Party, when LCRA has either: (a) notified Receiving Party that LCRA has not awarded Receiving Party a Related Contract resulting from the Solicitation; or (b) cancelled the Solicitation.

C. Protected Information. “Protected Information” means all information of any kind whatsoever, in any form or medium whatsoever, that is made available by LCRA to Receiving Party in connection with the Purpose, as well as all notes, memoranda, summaries, analyses, studies, compilations, and other information incorporating or based in whole or in part on Protected Information that is prepared by Receiving Party or others. Protected Information does not include:

(i) Information already in the possession of the Receiving Party prior to the Effective Date and which was not acquired or obtained from LCRA, provided that such information is not, to the Receiving Parties’ knowledge, subject to another confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, LCRA;

(ii) Information obtained by Receiving Party from a source other than LCRA that, to Receiving Party’s knowledge, is not prohibited from transmitting the information to Receiving Party by a contractual, legal, or fiduciary obligation;

(iii) Information generally available to the public other than as a result of a disclosure by the Receiving Party in violation of the provisions of this Agreement;

(iv) Information developed by the Receiving Party completely independent of any Protected Information; or

(v) Information that is ascertainable from a commercially available product.

D. Confidentiality Obligations. Receiving Party agrees (i) to hold the Protected Information in strict confidence and to take all reasonable precautions to protect the Protected Information (including, without limitation, all precautions the Receiving Party employs with respect to its most confidential materials), (ii) not to divulge the Protected Information except as authorized in this Agreement, and (iii) not to make any use whatsoever at any time of the Protected Information except in connection with the Purpose.

E. ERCOT Critical Energy Infrastructure Information. Receiving Party further acknowledges that LCRA is subject to certain Electric Reliability Council of Texas (“ERCOT”) regulatory requirements regarding information in its possession, custody, and control. The term “ECEII” means ERCOT Critical Energy Infrastructure Information, as that term is defined in the ERCOT Notal Protocols, as they may be amended from time to time. LCRA will designate any document or record containing ECEII as “Confidential ECEII” by marking it as such on the face of the document; if any ECEII is provided orally or in another form not readily susceptible to marking, LCRA will designate such information as “Confidential ECEII” by separate written notice to the Receiving Party within 24 hours after disclosure to Receiving Party. Any information or documentation identified or designated by LCRA as Confidential ECEII is Protected Information. Notwithstanding anything else in the Agreement to the contrary, any information or document designated as Confidential ECEII is subject to the following additional protections and requirements:

(i) Receiving Party must ensure that Confidential ECEII is securely maintained under the protections provided to Receiving Party’s own most sensitive information;

(ii) Receiving Party may only disclose Confidential ECEII to its Representatives that have a legitimate need to know the information in order to further the Purpose;

(iii) Receiving Party may not disclose Confidential ECEII to any Third-Party except to the extent permitted in Section F of this Agreement and subject to all the requirements and restrictions set out in Section F;

(iv) Receiving Party may not use any Confidential ECEII for any illegal purpose;

(v) Receiving Party must make each director, officer, employee, representative, and agent to which Confidential ECEII is disclosed aware of the requirements of this Agreement as they relate to Confidential ECEII; and

(vi) The protections afforded to Confidential ECEII survive termination of this Agreement and will continue to apply to any Confidential ECEII for as long as such information is in the possession, custody, or control of Receiving Party or any person to whom Receiving Party has disclosed such Confidential ECEII.

F. Permitted Disclosures. Receiving Party may disclose Protected Information only under the following conditions:

(i) Receiving Party may disclose Protected Information to its officers, directors, employees, and attorneys (collectively “Representatives”) working in connection with the Purpose (collectively “Representatives”), but only to the extent necessary to carry out the Purpose and subject to all requirements of confidentiality set forth in this Agreement;

(ii) Unless otherwise directed by LCRA at the time of or within 24 hours after disclosure of Protected Information to Receiving Party, and except as otherwise set out in Section I, Receiving Party may further disclose Protected Information to third-party subcontractors, suppliers, and consultants working in connection with the Purpose (collectively “Third Parties”), provided that each such Third Party is subject to confidentiality obligations at least as protective as those set out in this Agreement;

(iii) Receiving Party may disclose the existence and terms of this Agreement only to those persons authorized to receive Protected Information under this Agreement and only to the extent necessary to carry out the Purpose;

(iv) Any disclosure of Protected Information must be limited to the minimum amount necessary to carry out the Purpose and the specific portion of the Purpose for which Receiving Party has disclosed the Protected Information; and

(v) Receiving Party must make any person to whom it discloses or makes available Protected Information aware of the terms of this Agreement.

G. Required Disclosures. Receiving Party may further disclose Protected Information to the extent required to do so pursuant to valid order issued by a court or governmental agency of competent jurisdiction (each a “Legal Order”), under the following conditions:

(i) Prior to making any such disclosure, Receiving Party must notify LCRA within two business days of receiving the Legal Order and provide a copy of the Legal Order unless prohibited from doing so under the applicable law, regulation, or order;

(ii) For purposes of this Agreement, any restatement, clarification, supplement, renewal, or other modification to an initial Legal Order constitutes a separate Legal Order;

(iii) Receiving Party will provide reasonable assistance to LCRA in opposing disclosure under the Legal Order or seeking a protective order or other limitations on disclosure, each party to bear their own expense;

(iv) Any disclosure of Protected Information will be limited to the minimum disclosure necessary to comply with the Legal Order after all exceptions and objections to disclosure have been finally resolved.

H. Unauthorized Disclosures. Any disclosure of Protected Information in excess of the permitted disclosures set out in Sections F and G constitutes a material breach of this Agreement for which Receiving Party will remain fully responsible and liable, regardless of whether:

(i) Disclosed by Receiving Party, any Representative of Receiving Party, any Third Party, or any person to whom Protected Information is made available if originally disclosed to Receiving Party;

(ii) Such disclosure was intentional or unintentional; and

(iii) Any prior disclosure of such Protected Information was otherwise permitted under this Agreement.

I. LCRA Statutory Obligations. Receiving Party acknowledges that LCRA and LCRA’s affiliates are subject to certain statutory obligations regarding the retention, disclosure, and public availability of information in their possession, custody or control, including but not limited to the Texas Local Government Records Act (ch. 201, Texas Local Government Code), the Texas Open Meetings Act (ch. 551, Texas Government Code), and the Texas Public Information Act (ch. 552, Texas Government Code) (collectively the “Statutory Obligations”). Nothing in this Agreement is intended or may be construed to limit or prevent compliance with such obligations by LCRA or LCRA’s affiliates. Release of Protected Information to Receiving Party for the Purpose is not and may not be construed to be a waiver of any exceptions to disclosure of information set out in any Statutory Obligation.

J. Copies. Receiving Party may copy the Protected Information, but only to the extent reasonably necessary to carry out the Purpose.

K. Return or Destruction. Unless a succeeding confidentiality agreement covering the Protected Information is entered into between the Parties, upon termination of this Agreement, the Receiving Party will either return or destroy all copies of Protected Information to LCRA at LCRA’s election and in LCRA’s sole discretion, with any destruction certified in writing. Receiving Party may retain one copy of Protected Information for archival and compliance purposes, which will continue to be subject to the confidentiality obligations set out in this Agreement for the period of time set out in Section A. Latent data such as deleted files and other non-logical data types that are generally considered inaccessible without the use of specialized tools and techniques are not subject to the return or destruction requirement of this Section, but are subject to the confidentiality obligations set out in this Agreement for so long as such copies exist. Under no circumstances will Protected Information be considered the records of the Receiving Party.

L. No Grant of Rights. This Agreement does not grant or license any rights in or to Protected Information, whether under any patent, copyright, or other property right of LCRA.

M. No Obligation to Contract. Nothing in this Agreement is or may be construed to obligate the Parties to enter into any other contract or transaction regarding the Purpose or the Protected Information.

N. Entire Agreement. This Agreement constitutes the entire agreement of the Parties regarding the Purpose and is binding and will inure to the benefit of the successors and assigns of the Parties. Neither Party may assign all or any part of this Agreement without the written consent of the other Party. Money damages would not be a sufficient remedy for any breach of this Agreement by Receiving Party, and LCRA will be entitled to specific performance and injunctive relief as remedies for any such breach, which will not be the exclusive remedies for any such breach. This Agreement is governed by the laws of the state of Texas without regard to its conflict of laws principles. Venue for any dispute arising out of this Agreement is proper only in Travis County, Texas, and Receiving Party consents to the personal jurisdiction of the courts having jurisdiction in Travis County, Texas.

O. Alterations. Any alteration or modification of any portion of this Agreement must be agreed upon in writing and executed by the authorized representatives of both Parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement will remain in full force and effect.

Signed and executed by authorized representatives of the Parties:

LOWER COLORADO RIVER AUTHORITY __________________________________

By: ___________________________________ By: _______________________________

Name: _________________________________ Name: _____________________________

Title: __________________________________ Title: ______________________________

Date: __________________________________ Date: ______________________________ image1.png