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development of the 'Property. DEVELOPER agrees that the CITY shall not be in violation of <br />this Agreement if the CITY (a) does not review or analyze such proposals, (b) notifies the <br />persons or entities submitting such proposals in writing that the CITY is not considering <br />proposals with respect to the Property and (o), to the extent permitted by applicable law, returns <br />such proposals and all copies thereof to the persons or entities that submitted them. "Affiliates" <br />means any other entity directly or indirectly controlling, controlled by or under direct or indirect <br />common control with SJHS and /or TSJ. <br />5.2 CONFIDENTIALITY. "Confidential Information' shall, except as <br />otherwise provided in Section 5.2, mean any of the following information (a) furnished to the <br />CITY in furtherance of the Project by DEVELOPER, or the respective Affiliates, directors, <br />officers, employees, consultants or agents of DEVELOPER, and (b) all or any portion of any <br />notes, analyses, compilations, studies, interpretations or other documents, records or materials <br />prepared by either DEVELOPER or the CITY, or their employees, officers, directors or agents <br />( "Representatives ") which contain, reflect, derive from or are based upon such information. The <br />term "Confidential Information" shall not include, and the obligations of confidentiality and <br />restrictions shall not apply to, any information that: (a) was in the public domain prior to the date <br />of this Agreement or subsequently came into the public domain through no fault of the CITY or <br />its Representatives; (b) was lawfully received by the CITY from a third party where such third <br />party was free of any obligation of confidence to the DEVELOPER; (c) was already in the <br />lawful possession of the CITY prior to receipt thereof, directly or indirectly, from the <br />DEVELOPER, provided however that any obligations of confidentiality or restrictions on use <br />shall remain in effect; (d) is subsequently and independently developed by Representatives of the <br />CITY without reference to the Confidential Information disclosed under this Agreement; or (e) is <br />disclosed by the CITY in accordance with the prior written approval of DEVELOPER. <br />5.2.1 Except as expressly authorized by the prior written consent of <br />DEVELOPER, and subject to Section 5.2.4, the CITY shall, and shall cause its <br />Representatives to: <br />a. limit access to any Confidential Information received by it to its <br />Representatives who have a need -to -know in connection with the evaluation of the Project; <br />b, advise its Representatives having access to the Confidential <br />Information of the proprietary and confidential nature thereof and of the obligations set forth <br />in this Agreement; <br />c, take appropriate action by instruction or agreement with its <br />Representatives having access to the Confidential Information to fulfill its obligations under <br />this Agreement; <br />d. safeguard all Confidential Information received by it using a <br />reasonable degree of care, and not less than that degree of care used by it in safeguarding its <br />own similar information or material; <br />e. use all Confidential Information received by it solely for purposes <br />of evaluating the Project; <br />-3- <br />48677228.1 <br />