HomeMy WebLinkAboutDudek & Associates Inc; 2002-05-25;July 8, 2002
TO: CITY CLERK
FROM: Senior Civil Engineer
WATER & SEWER MASTER PLAN CONFIDENTIALITY AGREEMENT
Please file this confidentiality agreement with the other associated agreements on
record with the City Clerk’s Office. On December 18, 2001 the City of Carlsbad
executed a professional services agreement with Dudek & Associates to complete an
update to the City’s water and sewer master plan (Agenda Bill 16,480). On May 14,
2002 council approved Amendment No. 1 to the professional services agreement
(Agenda Bill 16,751). Amendment No. 1 included analyzing potential impacts to the
City’s water system associated with an alternative water supply from the desalination
plant proposed by the San Diego County Water Authority and Poseidon Resources
Corp.
As part of the preliminary planning for the feasibility of the desalination plant, Poseidon
Resources Corp. required the San Diego County Water Authority, the City and all of
their consultants to execute a confidentiality agreement regarding the desalination plant
studies.
Attached is the original Confidentiality Agreement and Acknowledgement executed by
Dudek & Associates for filing at the Clerks Office.
Please call me at 602-2746 if you have any questions, or need additional information.
Thank you.
CARRIE LOYA-SMALLEY U
Senior Civil Engineer
Planning & Programs
c: Deputy Public Works Director of Engineering Services
Deputy City Engineer, Planning & Programs
RECEIVED
Confidentiality Agreement and Acknowledgement MAY 2 4 2002
I declare, under penalty of perjury under the laws of the State of California, that I
have the authority to bind Dudek & Assocaites, Inc. to the terms and conditions
of the attached confidentiality agreement, and by my signature below do so bind
Dudek & Associates, Inc.
I have,received a copy of this page and the attached confidentiality agreement.
Title Dudek & Assoolateas, Ino.
Frank J, Dudek
PreSklent
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (“Agreement”), entered into and made
effective as of the 25th day of March, 2002, is by and between the San Diego County Water
Authority (“Authority”) and Poseidon Resources Corporation (“Poseidon”) (also referred to
herein individually as the “Partf’ and collectively the “Parties”).
WITNESSETH:
WHEREAS, the Authority is a public agency vested with responsibility to each of
its 23 member agencies with adequate supplies of water to meet their expanding and
increasing needs; and
WHEREAS, the Authority is vested with authority to acquire, store, treat, distribute
and sell seawater for beneficial uses and purposes within its temtory; and
WHEREAS, desalinated seawater has been identified as an important source of
water for beneficial uses and purposes in the Authority’s Urban Water Management Plan
adopted in December 2001 ; and
WHEREAS, the Authority’s Board of Directors has authorized the Authority’s
General Manager to investigate, evaluate and negotiate potential agreements for projects to
provide desalinated seawater to the Authority; and
WHEREAS, investigation, evaluation and negotiation of potential agreements for
projects to desalinate seawater requires consideration of technical and economic of private
companies, including information that is considered as trade secrets by the private
companies; and
WHEREAS, Poseidon, or its affiliate, has proposed the development of the Carlsbad
and South Bay seawater desalination projects serving the San Diego region (the “Projects”)
including potential agreements for Authority participation in the Projects; and
WHEREAS, the Authority desires to investigate, evaluate Poseidon’s projects and
negotiate appropriate agreements relating to Authority involvement, if any, in the Projects
for consideration by the Authority Board of Directors; and
WHEREAS, in order to preserve its trade secrets, Poseidon desires that the
Authority agree to keep its trade secrets confidential; and
WHEREAS, in order to preserve its deliberative process privilege, the Authority
desires that Poseidon agree to keep confidential certain Authority communications; and
1
J
WHEREAS, the Parties intend to exchange confidential information and enter into
confidential discussions and negotiations concerning the possibility of the Authority
working in conjunction with Poseidon, or its affiliate, in the development of the Carlsbad
and South Bay seawater desalination projects serving the San Diego region (the
‘Projects”); and
WHEREAS, the Parties have entered into this Agreement in order to assure the
confidentiality of all such information and the confidentiality of the discussions between
the Parties to prevent the disclosure of same to third parties except as permitted herein;
NOW, THEREFORE, in consideration of the mutual promises and cove-
made herein, and with the intent to be legally bound hereby, the Parties agree as follows:
In performing the activities contemplated under this Agreement, the Parties may
disclose to each other and Party affiliates (“Afftliates”) confidential or proprietary
information or trade secrets (“Confidential Information”). All Confidential
Information, which has been or will be disclosed to the recipient by or on behalf
of the other Party will be received by the recipient in confidence, and will be used
only for evaluation negotiation and performance of contracts with the disclosing
Party (“Permitted Use”).
The Parties shall not disclose to any third parties (except Affiliates) or to the
public Confidential Information, any techniques revealed by such Confidential
Information, or its possession of such Confidential Information or techniques,
except as may be required by that Party to perform its evaluations or negotiations,
or for Permitted Uses. No party will use Confidential Information or techniques
for itself except for a Permitted Use without prior written permission from the
disclosing Party for a period of five years after its disclosure.
Each Party shall restrict disclosure of Confidential Information to those of its own
employees and the employees of its afftliates who have a “need to know” such
Confidential Information for a Permitted Use. Each Party will ensure that its
employees shall not disclose or use such Confidential Information except for a
Permitted Use.
Each Party may also disclose Confidential Information that is directly related to
the Projects to third parties including governmental agencies, financial advisors,
lawyers, accountants, consultants and such others, as reasonably necessary for the
Permitted Use for matters related to obtaining regulatory approvals for the
Projects. However, prior to disclosing Confidential Information, such third
parties must execute a confidentiality agreement similar in scope to the one in this
Agreement and such third party must agree in writing not to compete directly with
the Projects subsequent to its receipt of Confidential Information unless such
2
confidentiality agreement and requirement is waived by mutual consent of the
Parties.
The foregoing obligations of confidentiality shall not apply to, nor restrict the use
of data or Confidential Infomation which:
A. was already in the possession of the recipient or its affiliates at the
time of disclosure, as shown by written records;
B. the recipient develops independently of Confidential Information
disclosed by or on behalf of another Party under this Agreement;
C. was received from a third party having a right to disclose it;
D. becomes known or available to the public or to the trade without
fault of the recipient; except that, even in any such instance, the
recipient shall not disclose any correlation between such
Confidential Information or techniques as are disclosed by another
Party and any such unrestricted information; and
E. is required to be disclosed by legal process (including, without
limitation, processes established by the California Public Records
Act), provided that the recipient gives the other Party prior notice
of such disclosure so that the disclosing Party may intervene in the
proceeding to protect the confidential nature of the Confidential
Information. In the event of such disclosure the recipient shall use
good faith efforts to maintain confidentiality of Confidential
Information after disclosure;
F. if a Party withdraws from the Projects in accordance with the terms
of this Agreement, the remaining Party or Parties may continue to
use Confidential Information but solely for the purposes of the
continued development of the Projects.
This Agreement shall be specifically enforceable. Nothing in this agreement shall
preclude public disclosure by the Authority of any proposed agreement or terms of
any proposed agreement, or other information, as may be required by the Ralph
M. Brown Act.
3
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on
the day and year first herein above written.
SAN DIEGO COUNTY POSEIDON RESOURCES
WATER AUTHORITY
By: By:
Title:
4