Loading...
HomeMy WebLinkAboutGreat Wolf - Confidentiality AgreementCONFIDENTIALITY AGREEMENT (Gilroy, California) This Confidentiality Agreement ( "Agreement ") is entered into as of January _Z7 , 2017, by and between Great Wolf Resorts Holdings, Inc., a Delaware corporation having its principal place of business at 525 Junction Road, South Tower, Suite 6000, Madison, Wisconsin 53717 ("Great Wolf'), and the City of Gilroy, California ( "City"). Great Wolf and City are each referred to herein as a "Party," or collectively as the "Parties," under. this Agreement. RECITALS A. Great Wolf and City have expressed an interest in discussing, evaluating, and negotiating a potential development project by Great Wolf in the City of Gilroy that would include an indoor waterpark resort, hotel and conference center, and that is anticipated to generate significant transient occupancy, property and sales 'taxes for the benefit of City ( "Project "). B. In order for the Parties to properly discuss, evaluate, and negotiate the financial impacts of the additional tax revenues that would be created by the Project for the benefit of City, Great Wolf may provide to City certain confidential information, including corporate financial records, corporate proprietary information including trade secrets, and information related to locating the Project in Gilroy. C. Any provision of Confidential Information • (described below) by Great Wolf to City is made with the understanding that such Confidential Information is exempt from public disclosure under the California Public Records Act, pursuant to California Government Code section 6254.15. D. As a condition of Great Wolf disclosing Confidential Information,. Great Wolf requires that City enter into this Agreement. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Definition of "Confidential Information" As used herein, "Confidential Information" shall mean any confidential, non - public, or proprietary information received by City from Great Wolf or those acting on behalf of Great Wolf, either directly or indirectly, in witting, electronically or by inspection on or after the date of this Agreement, as defined in Government Code Section 6254.15: corporate financial records, corporate proprietary information including trade secrets, and information relating to siting within the City furnished to the City by Great Wolf for the purpose of permitting the City to work with Great Wolf in locating a facility within the City. Any such information deemed by Great Wolf to be confidential shall be clearly marked as "Confidential Information" and segregated from non - Confidential Information. Confidential Information does not include information that: 118205- 0002 /133961726.4 (a) is or becomes generally available to the public other than as a result of a disclosure by City, through its employees, elected or appointed officials or advisors (including tax, accounting, financial, and other consultants, and legal counsel) (collectively, "City Advisors "); (b) is provided to City by a source other than Great Wolf or its affiliates, employees, agents, representatives, or consultants, provided that such source is not known by City to be subject to a confidentiality agreement or obligation with or to Great Wolf with respect to such information; (c) is the subject of a written permission to disclose provided by Great Wolf to City; or (d) is required to be disclosed to a third party under the California Public Records Act, the Gilroy Open Government Ordinance, or by order of any court of competent jurisdiction. 2. Duties and Obligations With Respect to Confidential Information (a) Nondisclosure and Protection. City shall use diligent, good -faith efforts to prevent the disclosure of any Confidential Information and shall hold all Confidential Information in strict confidence. Except as permitted in this Agreement,=City shall not distribute, disclose, or otherwise disseminate Confidential Information to any other party or entity, and shall not take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information to lose its character as Confidential Information. City shall hold and use the Confidential Information solely for the purpose of discussing, evaluating, and negotiating locating the Project in Gilroy. (b) Disclosure to Employees and Other Authorized Representatives. City shall limit access to Confidential Information to those employees or other authorized representatives of City, including the City Advisors, who (a) need to know such Confidential Information for the purpose of discussing, evaluating, and negotiating the locating of the Project, (b) have been advised of the confidential nature of the Confidential Information, and (c) have agreed to maintain the confidentiality of the Confidential Information under terms no less strict than those provided for in this Agreement. City shall take all necessary steps to ensure that the terms of this Agreement are not violated by such persons. City immediately shall notify Great Wolf upon becoming aware of any such violation by such employees or authorized representatives and shall take all reasonable measures to enforce the terms of this Agreement with respect to such employees- or authorized representatives. At Great Wolfs request, City shall require any of the City Advisors to enter into a similar confidentiality agreement prior to such City Advisors' receipt of Confidential Information. (c) Return or Destruction of Confidential Information. Upon written request by Great Wolf, City. shall promptly return to Great Wolf or, at City's option, destroy all Confidential Information in City's custody, control, or 118205- 0002]133961726.4 possession; without retention of any copies thereof. Notwithstanding the foregoing, City may, if in accordance with legal or regulatory requirements, professional standards, or internal document retention policy, retain Confidential Information, provided that any such materials so retained shall remain subject to this Agreement. In addition, any Confidential • Information not returned or destroyed will be held by City subject to this Agreement. (d) Legal Action Seeking . Disclosure. To the maximum extent permitted by law, City shall protect Confidential Information pursuant to the requirements of California Government Code §§ 6250- 6276.4$ (California Public Records Act), and specifically pursuant to the exemption from disclosure of Government Code § 6254.15. In the event that a third party files a legal action against City seeking disclosure of any Confidential Information pursuant to the requirements of the California Public Records Act, the Gilroy Open Government Ordinance or other applicable local, state, or federal law, City immediately shall notify Great Wolf of the filing-of such action to allow Great Wolf to object to such request or to move for a protective order with respect thereto. Provided Great Wolf seeks a court order to prevent disclosure within 10 days of such notice by City, then City shall not release Confidential Information unless a court of competent jurisdiction orders that City disclose such information. In the event City becomes a party to any litigation seeking disclosure of any records or information that Great Wolf claims constitutes Confidential Information under this Agreement, then Great Wolf shall defend (with attorneys selected to by Great Wolf, subject to City's reasonable approval), indemnify and hold harmless City from' all expenses and fees incurred in such litigation, including reimbursement for City staff time and City Attorney time incurred in responding to, participating in, or monitoring such litigation. 3. Notice Any notices .required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the Party shall specify in writing. Such notice shall be deemed given upon personal delivery; or if sent by first class mail, postage prepaid, three days after the date of mailing; or if sent by nationally recognized overnight carrier, on the date of receipt or refused receipt by the receiving ply. Great Wolf Resorts Holdings, In Great Wolf Resorts Holdings, Inc. Attention; Legal Department 525 Junction Road Suite 6000 South Madison, WI 53717 118205 - 0002/133961726.4 City of Gilroy: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attn: City Administrator 4. Equitable Relief City acknowledges that the breach of this Agreement could cause great or irreparable injury to Great Wolf and that money damages may be inadequate to protect Great Wolf against breach of this Agreement. City hereby agrees that Great Wolf shall be entitled to seek equitable relief including, without limitation, injunctions, temporary restraining orders on an ex parte basis, and specific performance as a remedy for any such breach. Under no circumstances shall Great Wolf be entitled to monetary compensation or damages from City caused by the disclosure of Confidential Information in breach of this Agreement, or arising from, or related in any way to, conduct by City under this Agreement, including any alleged breach of this Agreement. 5. Amendment or Termination This Agreement cannot be changed, modified, discharged, or terminated, except by an instrument in writing signed by all of the parties hereto. This Agreement and all obligations hereunder shall be terminated three (3) years following the date in the first section above, unless sooner terminated in writing by Great Wolf. 6. Governing; Law This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles, Venue for any action relating to or arising out of this agreement shall be in Santa Clara County, California. 7. Severability If any provision of, this Agreement shall be determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the extent possible. In any event, all other provisions of this Agreement shall be deemed valid and enforceable to the full extent possible. 8. Construction The headings of the sections of this Agreement are for convenience and shall not be considered in construing or determining the interpretation of this Agreement: • The parties hereto and their respective legal counsel participated in the preparation of this Agreement; therefore, this Agreement shall be construed neither against nor in favor or any of the parties hereto, but rather in accordance with the fair meaning thereof. 118205- 0002/133961726.4 9. Waiver No failure or delay by any party hereto in exercising any right, power, or privilege hereunder shall be deemed a waiver of such right, power, or privilege, nor will any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power, or privilege hereunder. 10. Counterpart This Agreement maybe executed in multiple counterparts, each of which shall be deemed to be an original, but all: of which shall constitute one and the same agreement. 11. No Third -rarty Beneficaiary This Agreement is intended solely for the benefit of the Parties hereto, and shall not be construed to give any person or.elitity other than the Parties to this Agreement any interest or rights, (including,.without limitation, any right to enforce compliance with this Agreement)'. with respect . to or in connection with this Agreement, including any agreement.or provision contained herein or contemplated hereby. 12. Entire Agreement This Agreement contains the complete statement of all the agreements among the parties hereto with respect to the subject matter hereof, and all.prior agreements among the parties hereto with respect to the subject matter hereof, whether written or oral, are merged herein and shall be of no further force or effect. 118205- 0002/133961726.4 In witness whereof, the Parties have entered into this Agreement as of the date set forth above. GREAT WOLF: GREAT WOLF RESORTS HOLDINGS, INC. By: Print.: Title:1�,� 118205 - 00021133961726.4 CITY: CITY OF GILROY Bar. Print: c Title: