Off-island ppa
CONFIDENTIALITY Claim of Confidentiality
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- (a) Articles (Sections) [IDENTIFY SECTION NO(S).]
- Compliance with the Freedom of Information Law
- Executive Directive No
- Treatment of Otherwise Publicly Available Information
- Term of Confidentiality
CONFIDENTIALITYClaim of Confidentiality.Parties agree that the following sections of this Agreement consist of rate, cost, financial, and other economic and material terms the disclosure of which would cause substantial injury to the competitive position of both Buyer and Seller:(a) Articles (Sections) [IDENTIFY SECTION NO(S).](b) Appendices [IDENTIFY APPENDIX NO(S).](c) Supplement [IDENTIFY SUPPLEMENT NO(S).]Any Party (the “Disclosing Party”) that provides written, confidential information to the other Party (the “Receiving Party”) shall mark such as “Confidential” to be protected from disclosure to third parties (the “Confidential Information”). The Receiving Party shall protect the Confidential Information from disclosure to third parties consistent with the provisions of this Article 19 and subject to Legal Requirements; provided, however, that a Party may disclose Confidential Information to (i) its Affiliates, potential Lenders, potential and actual equity investors in, or purchasers of, the Off-Island Generator or Controllable Cable, (ii) trustees, directors, employees, agents, consultants, contractors, partners, members, managers, or representatives of such Party, and (iii) the federal government of the United States of America, the New York state government, or local governments within the State of New York to the extent necessary for such Party to apply for and obtain Benefits associated with this Agreement (“Confidential Parties”). Confidential Parties shall be obligated by Legal Requirements, professional rules of conduct or a legally binding obligation to maintain the confidentiality of such Confidential InformationCompliance with the Freedom of Information Law. Seller expressly acknowledges that Buyer is subject to the requirements of New York’s Freedom of Information Law (“FOIL”) and must comply therewith. If Buyer is requested by a third party to disclose the Confidential Information that it has received from Seller, Buyer will, to the extent it is consistent with the requirements in Article 6 of the New York State Public Officers Law, (i) notify Seller of the request, (ii) provide Seller the opportunity to provide information regarding the need for confidential treatment, (iii) evaluate the third party’s request for disclosure and Seller’s request for confidential treatment, and (iv) determine if the marked Confidential Information is subject to disclosure under FOIL. If Buyer determines that the marked Confidential Information is subject to disclosure, it will provide prompt written notice of such determination to Seller so that Seller may seek a protective order or other appropriate remedy. If Seller does not obtain a protective order within ten (10) Days after Buyer provides notice to Seller of its intent to make public the marked Confidential Information, the Buyer may disclose such information with no liability or further obligation to Seller. Executive Directive No. 3. Notwithstanding any other provision in this Agreement and consistent with its Executive Directive No. 3 issued by Buyer on January 12, 2009, Buyer may have disclosed to the public the estimated total contract value of this Agreement prior to the authorization of the execution of this Agreement by Buyer’s Board of Trustees. Furthermore, Buyer may disclose certain Confidential Information in furtherance of Buyer’s requirements to receive approval to execute this Agreement or to seek approval by the Office of the New York State Comptroller. Treatment of Otherwise Publicly Available Information. Notwithstanding anything to the contrary in this Article 19, neither Party shall be required to hold confidential any information which: (i) was available to the public prior to the time of disclosure; (ii) is or becomes available to the public through no act or omission of the other Party or its Confidential Parties; (iii) is rightfully communicated or received by the other Party free of any obligation of nondisclosure and without restriction as to its use; (iv) was in the other Party’s possession and obtained on a non-confidential basis prior to its disclosure by the Disclosing Party or its Confidential Parties; (v) is independently developed by the other Party without reference to or use of the Confidential Information of the Disclosing Party; or (vi) disclosure is approved in writing by the Disclosing Party. Term of Confidentiality. The obligations set forth in this Article 19 shall survive expiration or termination of this Agreement for a period of two (2) years thereafter. FERC. The Parties agree to seek confidential treatment of the Confidential Information in this Agreement from FERC, but acknowledges that certain Confidential Information may need to be disclosed in Seller’s rate filing or reporting with FERC and in any application to FERC for determination of Seller’s status as an exempt wholesale generator under the Holding Company Act that will be publicly available. SEC. Seller may file this Agreement with the Securities and Exchange Commission (“SEC”) as may be necessary under the Holding Company Act and the rules and regulations thereunder in connection with Seller’s application to the SEC for such orders and approvals as may be required for the financing of the Off-Island Generator or Controllable Cable and/or the issuance and sale of interests in Seller. Seller shall request confidential treatment of the Confidential Information in this Agreement in connection with such filing; provided, however, that the Parties acknowledge that such request may be denied in whole or in part, and accordingly, that confidential treatment may not be afforded by the SEC to such information. 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