HomeMy WebLinkAboutC2007-194 - 4/18/2007 - NAJoint Non-Disclosure A reement
This J4INT NON-D~SCLOSURE AGREEMENT, dated April~ 2007, is anade by and
between t~e Lower Coiorac~o River Authori~ty ("LCRA"), a non-pra t corporation, having an
address at 3700 Lake Austin Blvd., Austin, TX 78703 and the City of Corpus Christi, Texas
{"Cit~'), a home rule municipality, having an address at 1201 Leopard Street, P.O. Box 9277,
Corpus Christi, Texas 78401, (each being a"party" or collectively, "parties").
WHEREAS, the parties intend ta engage in discussions concerning a potential transactian
{"Proposed Transaction"). In connection therewith, it has becorne necessary and desirable for the
parties hereto to exchange or share certain confidential and proprietary information as hereinafter
described (herein "Confidential Information"); and
Whereas, the parties hereto are entering into this 7oint Non-Disclosure Agreement {herein
"Agreement") for ~he purpose of establishing the terms governing the disclosure ar release of
such information which one party ("Disclosing Party"} may disclose to the other party
("Recipient").
1. A. For the purpose of this Agreement, "Confidential Information" means all
information in whatever form transmitted relating to the water rights owned by the City of
Corpus Christi in the Colorado River watershed, including without iimitation, informatian
regarding research, development, or business plans, operations ar systems, of Disclosing Party or
anottter party whose infarmatio~a Disciosing Party has in its possession under abligations of
confidentiality, which (a) is exchanged or shared by Disclosing Party or its affiliates to Recipient
or its affiliates tha~ bears an appropriate legend indicating its confidential or propz~etary nature or
may otherwise reasonably identifies itself as confidential or proprietary; {b} is praduced or
developed during the working relationship between the parties and which would, if disclosed to
competitors of either party, give or increase such competitors' advantage over that party or
diminish that party's advaz~tage over its competitors, cause substantial cornpetitive harm; or, (c}
may otherwise be protected from cUisclosuz~e by the Texas Public Information Act, Texas
Gavernment Code, Cbapter 552 , as amended.
B. Confidential Information shall not include any information of a Disclosing
Party tl~at: (a) is ar becomes publicly known through na wrongful act of Recipient; (b) is
independently developed by Recipient; {c) is communicated to a third party with express written
consent of the Disclosing Party, uiiless such third party communications are addressed under
section 8.B.; or {d} is lawfully rec~uired to be disclosed to any government agency ox is otherwise
required to be disclosed by law, inclucling the Texas Public Information Act, Tex. Gov. Code Ch.
552 ("PIA"). In the event Recipient receives a request for Con#idential Information under the
PIA, Reci~ient sha~l notify Disclasing Party within two (2) husiness days of receiving the
request. Afterward, Recipient shall give the Disclosing Party an adequate opportunity to
interpose an abjection to disclosure by the deadlines provided ir~ the PIA pri.or to disclosing the
Confidential Information pursuant to the PIA. Disclosing Party shall be solely responsible for
2007~ 194
04/18/47
Page 1 of 4
LCRA/Corpus Christi
Joint Non-Disclosure Agreement
LCRA
objecting to disclosure under t~e PIA, and Recipient s~a11 be deemed authorized to disclase the
requested Confidential Information if the Disclosing Party fails to object to disciosure by t~e
deadlines provided in the PIA. Notwitl~standing the foregoing, if the Confidential Information
requesked may be pratected from disclosure as "Trade Secrets; Certain Commercial Information"
under Section 552.110, Texas Govemment Code, Recipient promptly shall notify Disclosing
Party of the request and, in addi~ion, promptly farward the Confidential Information ta the Texas
Attorney General in accardance with Section 552.305, Texas Go~ernment Code.
2. ~or a period of three (3) years from the date of disclosure, Recipient shal~ not
disctose any Conf'idential Information it receives from Disciosing Party to any person or entity
except (a) officers, employees, and agen~s of Recipient and its affiliates who ha~e a need to
know and who have been informed of Recipient's obligations under this Agreement; (b) officers,
employees, and agents of Disclosing Party and its affiliates who have a need to know and who
have been infarmed of the confidential natuxe if this information; or, {c) as otherwise allovved by
this agreement or required by law. Recipient shall use not less than tiie same degree of care to
avoid disclosure of such Conf"idential Inforznation as that which is used far its own confidential
information of like importance.
3. All Confidential Information which is shared or exchanged in tangible form by
Disclosing Party to recipient under this Agreement (including, without limitation. documents,
writings, designs, drawings, specifications and information incorporated in computer software or
held in electronic storage media) shall be and rernain property of Disclosing Party. All such
Confidennal Information shall be returned to Disclosing Party or destroyed promptly upon
written request and shall nat thereafter be retain~ed in any form by Recipient. 'The rights and
obligations of the parties under this Agreement shall survive any such retum of Confidential
Information.
4. Disclosing Party shall not have any liability or responsibility for e~rrars or
omissions in, or any business decisions rnade by Recipient in reliance on, any Confidential
Information shared or exchanged under this Agreement.
5. The parties agree that, in the event of a breach or threatened breach of t~e terms o€
this Agreement, Disclosing Party shall he entitled to an injunction prohibiting any such breach.
6. Notwithstanding termination af the Proposed Transaction, all right and obligations
hereunder sha11 survive vvith respect to Confidential Information shared or exchanged prior to
such termination.
7. Neither party hereto shall in any way or in any way disclose, publicize or advertise in
any riaanner the cliscussions that give rise to this Agreement or tbe discussions or negotiations
covered by this Agreement without the prior w~ritten consent of the other party except as required
by law.
Page 2 of 4
LCR.A/Corpus Christi
Joint Non-Disclosure Agreement
8. A. Without the prior written consent of the Disciosing Party, a Recipient shall
not use any Confidential Information for any purpose whatsoever except the analysis,
investigation and evaluation of the Propased Txansaction between the parties.
B. The parties agree and understand that prior commitments may rec}uire
others ta be kept informed about these parties' negotiations. In the case of LCRA, "others"
include the City of Austin, and related entities (i.e. Austin Energy) and the City of San Antonio
and related entities (i.e.City Public Service (CPS) and San Antonio Water Systenn ("SAWS"}).
Izx the case of the City, "others" include its various port industries. This confidentiality
agreement is not intended to prevent those communications. T~e parties may add additional
entities to be informed, but prior to dping so, the parties shall notify each other of the need to
make the cornmunication and give the apposite party the opportunity a reasonable time to object
and provide written consent prior to making such communication. The parties shall mak~
reasanable efforts iu communications with the third parties covered under ttus sectian to limit the
sharing of corifidential information and otherwise mak~ raasonable efforts to lin~uit distribution of
such information beyond those receiving the information directly from. the parties to this
agreeme~t.
9. The parties acknowledge and agree that agreements, if any, executed by the parties to
consu~nmate the Proposed Transaction shall not qualify as Confidential Information ar~d are
subject to disclosure in accordance with the PIA.
10. The term "affiliate" shall mean any person or e~tity cantroZling, controlled by or
under co~unon control with a party. The terxn "affilia#e" shall include any independent
contractors or consultants employed by a party and who receive Confidential Information.
11. This Agreement: (a} is the complete agreer~ent of the parties concerning the
subject matter hereof and st~persedes any priar such agreements; (b) may not be amended or in
any manner modified except in writing signed by the parties: and (c) shall be governed by anc~
construed in accordance with the domestic lavvs af the State of Texas, inciuding the Texas Public
Tnformation Act, as amended, without regard to its choice of Iaw provisions. If any provision of
this agreement is found to be unenforceable, the unenfarceable provision shall be deemed
modified to the limited extent required to germit its enforcement in a manner most closely
approximating the intention of the parties as expressed herein.
Page 3 of 4
LCRA/Corpus ChrisEi
Joint Non-Disclosure Agreement
IN WITNES~ WHEREOF, the parties have exec~ted this Agreement as of the date first
above written.
Lower lorado 'ver Authority ~
~ Q~ r ~
B : ~ ?" ti
N : ,~ose . Beal F.E. /~~
e; General Manager
Date: ~~,..,' ~
Address for notic~s:
Suzanne ZarlinQ
P.O. Box 22Q, H2O0
Austin:, Texas 78757
City af arpus Christi, Texas
By:
Nam . Gearge K. Noe
Title: C i n a r
Date: ~
Address for notices:
P.O. Box 9277 _
Corpus Chri.sti
Texas 78469-9277
pp~x~ued a6 ~o form: `~ ~~.,~ ~
f
G •~
Assistarlt Clty Atttirr~Y
For City Attomey
Page 4 of 4
LCRA/Corpus Christi
Joint Non-Disclosure Agreement