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HomeMy WebLinkAboutAmerican Ag(Martin Marietta) Nondisclosurel " EXECUTION COPY CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This CONFlDENTIALITY ,AND NON-DISCLOSURE AGREEMENT filr purposes of settlement discussions to prcserve the confillentiality' of proprietary infomJatibn and to prev~iit acc'es:, bY certailrpersons to the information ("Agreement") is entered into between Board of Public Works. and Safety of the City of Cannel, Indiana on behalf of Carmel Utilities, on the one,hand ("Carmel Utilities"), and American Aggregates Corporation, d/b/a Martiil Marietta -Aggregates and Martin M a~iettn Materials, Inc, on the other (together, the "Companies"). WHEREAS, Cannel Utilities is discussing with the. Companies the:acquisition of a portion of Conipanies'prbpei"ty located in Haniilton'Cbu:l1.ty; Indiatla (all of Companies' property in Hamilton County, Indiana 'is hereinafter coIiectively referred to as the "Companies' Property")asa location' For a)lE:\V water treatment plant ("Property'"); and WHEREAS, Cam\e1 Utilities has retained certain con.sllltants to assist it in the design of the waler treatment plant and the, preparation of the Property for construction of the watej" treatmel]t plant an(l,rela!ed facihtjes, name)yJones &, Heilry Engineers, Ltd" Professor Charles Doweling, faith 'Exploration Inc" Alpha & Omega Video Media Inc" Vibronics, Inc., Frank Kendorski at Agapito Associates, Inc, and 'ItascaConsulting Group, Inc, ("Cann'eIUtilities' CohsiJlta!\ts")j and WHEREAS, a condemnation proceeding wasiilifiilted by Camlel Utilities on October 24, 2006, pursuant to Indiana' Code ~ 32c24-1 in Cause No, 29,001-0610. PLl 055 in Hamilton Superior COUlt I for the. purpose of ,icqUlring the Property (the "Condemnation");' and WHEREAS, Cannel Utilities is.representedin the Condemnation by legal counsel Randolph L Seger, Brian W. Welch and Clihstopher'M. York Dflhe law finn Bingham McHale LLP (the ;'ConClel11nalion Attomeys'!); and WHEREAS, ,it is contemplated tl,lal it will tilCilitate compromise. regarding all or some ofthe issues in the Con&minatio'n foftlicConipanies'to'clisdoseto Carmel Utilities' Consultants cert31n proprietary infoJ111ati011 wliic1unay'inelude, but is not limitecLto: (i) information regarding the,Companies' comm~rcjal operations; (ii) I1lilling.plans anclotl1er sucl1 technical data i'e1ated to milling ,activities onot abomthe Property' and (iii) information that CannerUtilities.may disc.losQ.to the CornpaniesTegarding its operations, use of the Property; technical offinilncial data; or lI1fon-natioil regarding thePfoperty (the "Proprietary lnfollnation");and WHER EAS, Cannel Utilities recognizes ,that ihere are multiple lawsuits between and among the Companies al1d tbe €ity of Carine'! and cet1ain of its depaltmcnts, agencies, boards, and employees, including. the Chair of the Board of Public Works (the "Other Litigation"); aile! ./ WHEREAS, Carmel Utilities acknowledges that the Companies believe that disclosure of the Proprietary lnfonnation could result in disadvantage or injury to the Companies in the Other Litigation or in other dealings with the City of Cam1el or third parties; WHEREAS, Carmel Utilities and the Companies believe that there should be a written understanding between them in order to protect the Proprietary Infom1ation. NOW THEREFORE, Cannel Utilities and the Companies (each referred to individually as the "Party" and collectively as the "Parties") agree that any and all Confidential Material and Confidential Operational Material (both as hereafter defined) that is made available by a Party under this Agreement will be held in confidence as set forth below and will not be disclosed other than according to the terms of this Af,'feement: I. DEFINITIONS OF CONFIDENTIAL MATERIAL, CONFIDENTIAL OPERATIONAL MATERIAL, ANI) AUTHORIZED PERSONS. The term "Confidential Material" shall mean any infonnation, data or knowledge conceming the Companies' Property or Property that is designated by either Party as Confidential Material and meets the tenns of this Section of this Agreement. The tenn "Confidential Operational Material" shall mean any information, data or knowledge conceming the Companies' Property or the Property or operations conducted, or to be conducted, thereon disclosed to an Authorized Person (hereinafter defined) that is designated by either party hereto as Confidential 'Operational Material and meets the tenns of this Section of the Agreement. "Authorized Persons" shall mean Cam1el Utilities' Consultants as defined above and the Condemnation Attorneys, including their respective employees and staffs, and any person designated as Authorized PCI'sons by written agrecmcnt of thc Partics. "AuthorizccI"I)ersons" is not synonymous with "Advisors," which is defined hclow. The terms "Confidential Material" and "Confidential Operational Material" do not include infonnation which (i) was or becomes generally available to the public (but only aftcr it becomes publicly available) other than as a result of a disclosure by a Pal1y recciving Confidential Material or Confidential Operational Material hereunder, or its directors, officers, employees, affiliates, agents, advisors, consultants or other persons retained or engaged by a Pany (collectively, "Advisors"), or (ii) was or becomes available to a Party II'om a source other than the other Pal1y or that Party's Advisors, provided that such source is not breaching a duty of confidentiality in respect thereof; or (iii) was within a Party's possession, as evidenced by a written record, prior to its bcing fUl11ished by the disclosing Pat1y; provided, however, that the Party did not obtain possession of the infonnation from a source in breach of the source's duty of confidentiality in respect thereof, or (iv) is indcpcndently developcd bya Pal1y, providcd such Party can show that the development was by or on its behalf by employees of a Pm1y who had no acccss to any Confidential Material or Confidential Operational Material or (v) was or has bccome available to a Party by entitlement under any federal, state or local law. 2 /' 2. USE OF C0NFIDEN'I"IAL MATERIAL AND CONFIDENTIAL OPERATIONAL MATERIAL. The Parties agree that the Confidential Material will be used solely for the, plltpo~e of attempting to cQfnpromisedispuicd 'issues in the Condemnation; and that such infonTlation \vill be kepI' co'nfidenl'ial by both Parties and their Advisors; provided, however, that any of.such infOlmation may be discloscd,only to those Advisors who need to' knmv s].Jch infonmitibn fonhe nllrpose.of assisting with the compromise of the disputed issues in the. Condemnation (it being.understood that slleh Advisors shall be intonnedpy tlie {'arty 9[theconfident!al natur~ of sllch Information and shall have agreed to treatcsllcli infonnation confideiltiailx} CarrneJ Utilities,'agreesthat theCoMidential Openitional Mat~nal disclosed by the Companies will be used solely for'purposes 'of evaluating the suitability of the Properiy for the new water treatment plantajld for designing the 'water treatment, plant. Cannel Utilities agrees that the Confidential Oper'atiollal Mateli,1\ .will be disclosed only to Authorized Persons and to no one else wlthout'the'express,. written, consent of counsel tor the Companies. Without lil'niting the generalityofnie foregoiilg, Caimel Utilities agrees that the Confidential Operational Material will not be d1sclosed,.'in any way, 'in whole or in part, to any employee, offiCial, contractor; or other, representative of the City of Carmel, includiilg the DirectOtofthe Dep<l1iment ofT>lJblic Works, ani mernber of any board or .agency of the City of C'annel" inCluding the Board of Public Works and any member thereof, and ]Jrivaty parti, or any of 'the City 0 r Cimnel's staff or private attorneys, including any member of the fawf111Tl Bose M6Kin'n'ey & E.vans, LLP, who.is not an Authorized 'Person Additionally. the Condemnation Attorneys agree to implement internal procedures preventi,ng' LiInYKane oranY otherernployee of Bingham McHale I_LP involved .directly Or, indirectly in the Other Litigatioll from accessing the Confidential Opcf~tion81 Materials. Carinel l!tihties agrees to obtain an executed acknowledgement,and agreement of all Authorized Persons in the fonn ilttachcd.hereto as Exhibit A, The Parties agree th,)! Confidenti,il 1\;hiterial, and ConfldenlIal Operntional Materi"1 shall not used f(lr any purpose other 'tI\an that set fonh in this Agreement Without limiting the generality ,of the foregoing agreement, the.pal~ties specifically agree that Confidential Material and Confidential Openiti6nal Material obtained in coiljunction with this Agrecment shall not be suhmittednor referredJo nor shall if serve as the basis tor discovery in theCimdcmnation of'inany oJher:aClion, dispute 9r rrocee,ding, whether judicial, administrative" or 'otlierwise, However, ,the Pmiies: are .not preCluded from attempting to obtain copies of the Contidential Material and Confidential Operational Material through discovery in thc. COIidemnatioh of ih 'any othcr action, disptite or proceeding, whether jUdiei'al, adminIstrative, Or otherwise, BoihPaliies agree that execution Or this Agreement sl"ll1 not eonstitutean ao}nissiol1 or concession \hat Confidential Matclialand Confidenti~1 Operational Matelial is, in t1ct, properly suhject to a claim of contidentiality, and that the determination of .confidentiality of the Confidential Matet'iai a'nd Contitlential OpenJtional Material in any jud;'cial or administrative proceeding shall be ,made by' the appropriate couli or administrative agency mdependent of tllis Agreemcnt. 3 " Confidential Material and Confidential Operational Matenal shall be deemed to be disclosed by the prodi.lClng,party in,connection, with. the attempt to compromise of all or some of the disputed issues in the Cdnd.en\11ation @ild as such shal! have all the protections guaranteed to such, infonnation by the Indiana Rules 'of Evidence, including but not limited to Indiall~ Rule. of Evidence 408 regarding offers to compromise, the Indiana Rules of Trial Procedure; alld Indimw's Open Records'law, hll! Code ~ 5-14-3, el. seq, and similar, court rules and laws" 3, INA DVERTENTLY DISCLOSED MATERIAL If a Parfy through inadvel1ence disc\oscsor provides Confidential Material or Confidential Operational Material that it believes .is or'may be subject to a claim of attorney,clicnt priviiege or work product privilege, such production shall not be a 1\:iliver 'of any privilege or protection. Upol1.nofificati'on by the disclosing party that it' beli'eves such inadvertent disclosure has been made, thS other ,party shall within two (2) days, return such Confidentlal Material or Confidential Operational Material tb the disclosing party. Retum of Confidential Material or Confidential Operational. Material shall not constitute an adl11lSsioll or cOllcession that the iefur/led document or thillg is, in fael, properly subject to a claim ofattorney-ciienrprivilegeor work product privilege, 4, RETURN OF CONFIDENTIAL CON FlDENTlAL OPERATIONAL lVIATERIAL. MATERIAL AND In the event that Carmel Utilities choases.not to ,proceed with the acquisition of the Propcny that is the slll?j~ct oflhis.Agr~eijjeni, orin any evert within thir1y (3D) days after full Hnd final resolution of the acquisitioll aCthe Properly (iilclucling any appeals, if applicable) each Pally shall, at'its own expense, promptly retum to the other Party all Confidential Maier'ial (whetherprcpored by thc o.ther !'aiiy, its Advisors or otherwise) and shall nat retain any copies, extmclS 0.1' oilier reproductions, in whole or in part, including any such materials held and/ar maintained in atl electronic format, of such Confidcritlal Material arid the inr<Jlllliltion contJiiled therein, provided,howC\ier that counsel for each Party 'shall ,be, entitled to keep one record copy, to. be used anly with regard to defending any clail11 tclatihg to the acqllisitia!l of thePrope!"tY or arising from this Agreement. The Parties shall undertake reasonable efforts to. CIestroy all other dacuments, memorau~\a, notes, analyses, compilations, studies, and ather writings whatsoever prepared by Dr 011 hehalf of tl\e Party Qr its representatives or Advisors based on or cantaining any Confidential Matcrial, and such destructionsliall be certi'fied III WrIting to the Par1y by the other I',aI1y'~:authotized ()ftieersupervising destruetioil, Cannel Utilities Agrees that,.. within two hundred twenty' (220) days .of the ctTeclive date af this ,Agreement, it shall promptly return to the Companies all Confidential Operational Material and the ii}fonnation contained 'therein, provldcd however that,the Condemnation Attomeys sllall'he.entitled to keep one'reeord copy to be used only with regard to defending ar,ydai'm.relatiI]gto pic acqllisitio11 of the Proper1y or arising from this Agreemell(., Hawever" witlnespecl. to Gonl1dential Operational Matelial that Camlcl Utilities' CDnsultants need to' utilizear develap the Property beyond the date for return 0.1' destruetioil ofCanfidential Operaticli1al Material eontmiled in this Sectian, Cannel Utilities: Cansultants may requesr 111 writing the right to keep suehihfOlmatlOn 4 / until it is no 100fger needed, identifying with particularity,the Confidential Operational Material that Carmel Utilities' Consultants,need to retain ,and stating v;,th particulanty the reasons they need to retain such information an~1 when they anticipate return or destruction of such Confidential Operatio'nal MateriaL Provided thaLCannel Uti1itiesand Cannel Utilities' Consultants cO]11ply"witll the provi~ions of this Section, the Companies' agreement to the, Carmel UtIlities' Consultants' t'equest to retail} Gcinfidenti'll OPei'ational Material willnotbe llnreasomibly withheld, 5, NO OBLIGATION, TO DISCLOS.E CONFIDENTIAL MATERIAL; COMPLETENESS OF GONFlDE,NTIAL MATERIAL,. The Parties agree that this Agreement in no way obligates them to disclose any infoffimtion in furtherance of settleinent piscussiolls in the, Condeinn~tion. Th.e Parti~s shall ct1deayo)' to include, in any Confidential Matellal or Confidential Operational Materia!" that is disclosed under this Agreement,infornlati9n that is believed to be accurate and complete for the purpose of the discussi'ons; however,"the Parties aCKno\yledge aild agree tbat neither a Pinty nor the Party's advisors make.. any representation or warranty as to the aecuraey, completeness or relevance> of the Confide11tjal Material or Confidential Operational Material, except to the extent specifically disclosed thcrein, 6. RIGHTS IN GONFIDENTIAL MATERIALS, The Confidential Matet'i 3] and Confidential Operational M alehal discloseclyursuanl to the tenns of this Agreement \vill remain the 'sokandexClusive property of the disclosing Party and the disclosure of such material to the othcr Party or to the Authorfzed Persons shall no! be deemec!or construlOd as a transfer, assignment or license of any rights hy thc disclosing Party in the Con/ldenti41 rrlateriaL No i'ights:or"obligation's pther than .those expressly recitec! herein are to be.iinp!"ieil from this Agreement. No license' is hereby granted, directly Ol" indirectly, underany,know-how, patent or tradenlark,now or hereinafter held or licensed by either Party, 7. REbA TlONSHlP OF THE PARTIES. Nothil)g in this'Agreement shall be decmed or construed to crente .a joint venture; partnership, .fiduciary, or agency relationshIp between the pat1:ie~ for apy pUl]lo,se, 'Botl1 Parties aekno\','ledge thai tillS Agreement does not impactor limit Cannel Utilities' right.topursue thc Condemnation, The Palties also agree that'lhis Agreement does'not.waiw any rights or remcdies that the Companies mayhavt in the CondcnlnatjOlL The Reflies agt~t thet in tlwevent onc or thc other seeks information through the'discovery process In the. Cotidemnatioll tharthe COUtt detennines. to be conlide'1tial, tliey will negotiate,ingood faith to yeach agreenlent on the fonn of a protective brdergoveming the confIdentiality of infol111ation disclosed in response to discovery requests, 8. GOVERNING LAW; COURT APPRO\/AL AND ENFORCEMENT. The terms, conditions and Qther proyisions gf tllis Agreem,erii; shall he gmiemed by and construed in accordance with the laws of the Smte of lnaiana' (excluding the choice of law principles thereo!). 5 / TIle Parties agree that following execution by all parties they will submit a copy of this Agreement to the Court in the Condemnation for approval, and that upon approval by the COUl1, this Agreement shall function as an Order of the Court and any breach hereof shall be subject to the remedies and penalties for civil contempt. In certain circumstances involving an intentional release of Confidential Operational Material, the additional penalties described in Section 9 below will also be applicable. 9. REMEDIES FOR BREACH OF CONFIDENTIALITY OF CONFIDENTIAL OPERATIONAL MATERIAL. ThePat1ies agree that if either Pat1y orchestrates or is in any way directly or indirectly involved in the intentional release of Confidential Operational Material to anyone other than an Authorized Person, that the minimum amount the court will award in damages shall be the sum of Fifty Thousand Dollars ($50,000.00), that sum being agreed upon by the Parries as the minimum amount of damage the other Party will suffer as a result of said intentional breach of Section 2 or 3 in regard to Confidential Operational Material. 10, OTHER BREACHES; PREVAILING PARTY. Both Parries acknowledge that the unauthorized use or disclosure of'the other Pm1y's Confidential Material would cause irreparable harm to it. Accordingly, both Parties agree that each Party shall have the right to seek an immediate injunction against any breach or threatened breach of this Agreement, as well as the right to pursue any and all rights and remedies available at law or in equity lor such breach, and neither party shall raise a defense to an injunction claim that adequate monetary damages exist. All remedies at law, or in equity, by statute or otherwise, shall be cumulative and may be enforced concurrently herewith or from time to time, and the election of anyone or more shall not constitute a waiver of the light to pursue other available remedies. The Parties agree that the prevailing party in any action Jor breach 01' or to cnforce this Agreement, including an action brought pursuant to Section 9 above, shall be entitled to its reasonable costs and attomeys fees in prosecuting or defending the action, II. NOTICE PRECEDING COiVIPELLED DISCLOSURE. If the P3I1y receiving Confidential Material or its Advisors (the "Receiving Party") are requested or required (by oral question, interrogatories, requests for infomlation or documents, subpoena, civil investigative demand or similar process, or by any applicable law) to disclose any Confidential Material, the Reeeiving Pal1y shall promptly notil'y the other Pm1y (the "Diselosing Pm1y") of such request or requirement, if that notilication can bc made without violating the tcnns of sueh compelled disclosure, so that the Disclosing PUl1y may seek an appropliate protective order or waive compliance with this Agreement. Until the Disclosing Party has had a reasonable opportunity to seek a protective order or waive eompliance, the Receiving Pat1y shall use best efforts to defend against and resist disclosure of Confidential Material or Confidential Operational Material. 12. BINDING EFFECT. This Agreement will become effective on the date which it is signed on behalf of the Companies. The Ah'Teement shall be binding upon both Parties, and each Party's permissible successors and assigns and its Advisors. The 6 / rights and remedies hereunder may, in whole or in part, be assigned, and remedies hereunder may be enforced by either Party's subsidiaries and atTIliates. 13. SEVERABILITY. If any provision of the Agreement is declared or found to be illegal, unenforceable or void, then both patties shall be relieved of all obligations under that provision. The remainder of the Agreement shall remain enforceable to the fullest extent permitted by law. 14. COMPLET~: AGREEMENT. This Agreement constitutes the entire agreement between the patties relating to the subject matter hereof and supersedes and nullifies all prior negotiations, proposals or stipulations. There are no plior or contemporaneous agreements or presentations .not ineluded or provided for herein. No agent or representative of either patty has authority to make, nor is either patty relying upon, any representation not expressly contained herein. [THIS SPACE INTENTIONALLY LEFT BLANK] 7 IN WITNESS' WHEREOF, the'uildersigh~d have executed, this"agrecment effective as of theffilayof~, 2007, ACCEPTEDnnd AGREED: AMERICAN AGDREGATESCORPORATlON, n Delaware cOrpOI'ation By: Martin Marietta'Materials; Inc"it~,soJ'c 'shareholder By: John J, ,nt ~'Mjdea~1J5ivis'ion THE BOARD OF PUBLlCWORKSANDSAFETY OF THE CITY OF CARMEL, INDIANA,bn behalf ofCannCl Utilities BY:~~ (Signature) Its: (Printed Name and Title) 8 1119808065 CITY OF CARMEL, INDIANA BY ITS BOARD OF PUBLlC, WORKS A1'ID SAFETY e ur' e, Member 9-;)) -C) '7 / Date: fu~~t- Lori Watson, Member. Date: CJt 2."1 ! U7 ATTEST: , , " STATEOFINDrANA, COUNTY OF~~I ~ ) J ') 58: Before,me, a Nolary P\tblic inland for.said:County'and' State,personajWa:pp.ear~4 James Brainard, MarvAnn BurKe. ,,",d LUll\V"l,ull, b&2r(:ni?\~C:;~l~~~hWty of Carmel.Board of Public Worhand, Safety,andDiai13.L'Cordiav" G1erkoTreasure:oftlie(';ityof Carmel,. who acknowledged the execution 'ofthe foregoing,"Agreemeht" [lit behalf onhe City of Carmel, Indiana. .. .{.h .'~"" ";'; Witness my hand ana Notaria]Sealthis p day of ~~' ,~OO1.i:0'_ (J ~ ~:;'.:;"!.,: 'N-OJ'ARY.-PUBLIC ~. - Q. 4r.~ 'j)~~'3"'-'/"--" ./:c - "" ~..,...." ,My CofnmissionExpires: I;rinted.Name -"",_"",,_,_,,'-'- -"Illi'/CJ1 lv'\YCOuntyOf,Residence+; t .~ Date: q I~ 11 Or ~ ,10 u::./n fl E:)l '~':.:~__.~lijb.~~,'\I" "'..