Loading...
HomeMy WebLinkAboutSan Diego County Water Authority; 2002-06-06;. CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AG EMENT (“Agreement”), entered into and made effective as of the 6 th day of g72002, is by and between the San Diego County Water Authority (“Authority”) and City of Carlsbad (“Carlsbad”) (also referred to herein individually as the “Party” and collectively the *Parties”). WITNESSETH WHEREAS, the Parties are public agencies vested with responsibility to provide adequate supplies of water to meet their expanding and increasing needs within their service areas: and WHEREAS, desalinated seawater has been identified as an important source of water for beneficial uses: and WHEREAS, Poseidon Resources Corporation (“Poseidon”), a private company or its affiliate, has proposed the development of the Carlsbad Seawater Desalination Project serving the San Diego region (“Project”) including potential agreements for Parties participation in the Project; and WHEREAS, investigation, evaluation and review of the Project requires consideration of technical and economic information of private companies involved, including information that is considered as trade secrets by the private companies; and WHEREAS, the Parties desire to investigate, evaluate and review the Project feasibility study and proposed water purchase agreement submitted by Poseidon; and WHEREAS, the Parties have executed a cooperative Agreement, dated May 8, 2002 that provides for a joint agency due diligence review of the Project proposed by Poseidon, including the sharing of information between the Parties; and WHEREAS, the Authority and Poseidon entered into a Confidentiality Agreement on March 25, 2002 in order to assure the confidentiality of certain information including confidential or proprietary information or trade secrets, and the confidentiality of the discussions between the Authority and Poseidon; and WHEREAS, the Parties intend to exchange such confidential information as part of the joint agency due diligence review; and NOW, THEREFORE, in consideration of the mutual promises and covenants made herein, and with the intent to be legally bound hereby, the Parties agree as follows: 1 In performing the activities contemplated under this Agreement, the Parties may disclose to each other and Party affiliates (“Affiliates”) 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 affiliates 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 Project 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 Project. 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 Project subsequent to its receipt of Confidential Information unless such 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 Information 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 2 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 Project 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 Project. 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. IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on the day and year fnst herein above written. SAN DIEGO COUNTY WATER AUTHORITY Date: /aa CITY OF CARLSBAD Title: City Manager Date: u JUN 0 3 2002 3