💡 Plain English Explanation

This clause protects development-related information including architectural plans, engineering drawings, permit applications, and construction documents. Development plans represent significant intellectual and financial investment, often costing hundreds of thousands of dollars to prepare.

For developers, these plans embody their vision and competitive strategy for a property. For buyers evaluating development opportunities, understanding the permitted or planned development is critical to underwriting. This clause establishes clear boundaries around what development information is confidential and how it may be used.

Development information typically includes:

⚠ Why This Clause Matters

For Developers/Sellers: Your development plans represent years of work and substantial investment in architects, engineers, and consultants. Competitors could use leaked plans to replicate your designs or preemptively develop adjacent properties. Additionally, premature disclosure of development plans can trigger community opposition.

For Buyers/Investors: Development plans are essential for evaluating whether a property meets your investment criteria. However, you need clarity on whether you can modify plans, use them on other properties, or must return them if the deal fails.

Intellectual Property Considerations: Architectural plans are protected by copyright. The transfer or licensing of these rights must be addressed separately from confidentiality obligations, though the NDA should preserve the disclosing party's IP rights.

📄 Clause Versions

Balanced Version: Provides reasonable protection for development materials while acknowledging the buyer's need to evaluate and share with consultants. Preserves intellectual property rights while permitting due diligence. 
"Development Information" means all non-public information relating to the development, construction, or improvement of the Property, including but not limited to:

(a) Architectural plans, drawings, renderings, and specifications at all stages of design;
(b) Engineering documents, including structural, mechanical, electrical, plumbing, and civil engineering plans;
(c) Site plans, landscape designs, and exterior elevation drawings;
(d) Building permit applications, approvals, and related governmental correspondence;
(e) Construction budgets, schedules, and contractor proposals;
(f) Entitlement documents, variance applications, and zoning approvals;
(g) Environmental permits, wetland delineations, and mitigation plans; and
(h) Project pro formas, development timelines, and phasing strategies.

The Receiving Party agrees to:
(i) Use Development Information solely for evaluating the potential acquisition;
(ii) Not use Development Information for any competing development;
(iii) Limit disclosure to representatives with a genuine need to know;
(iv) Return or destroy all Development Information upon request; and
(v) Not reproduce or modify architectural plans without written consent.

The Receiving Party acknowledges that architectural plans and engineering documents may be subject to copyright protection, and that this Agreement does not grant any license to use, modify, or reproduce such materials except as expressly provided herein for due diligence purposes.

Notwithstanding the foregoing, Development Information shall not include information filed with governmental authorities and available for public inspection.
Disclosing Party Favor: Maximum protection for development intellectual property. Strictly limits reproduction, prohibits use on other projects, and includes non-compete provisions for similar developments. Use when sharing proprietary development concepts. 
"Development Information" means any and all information, in whatever form, relating to the development, construction, improvement, or operation of the Property or any similar development project contemplated by the Disclosing Party, including without limitation:

(a) All architectural plans, drawings, renderings, models, and specifications, whether in preliminary, schematic, design development, or construction document form;
(b) All engineering plans, calculations, and specifications of any nature;
(c) All design concepts, programming documents, and space plans;
(d) All building permit applications, correspondence with governmental authorities, and entitlement strategies;
(e) All construction budgets, value engineering analyses, and contractor bid information;
(f) All development pro formas, financial projections, and investment analyses;
(g) All information concerning the Disclosing Party's development methodology, project management systems, and construction techniques;
(h) All information concerning prospective tenants, pre-leasing negotiations, and anchor tenant requirements; and
(i) All analyses, compilations, or derivative works prepared by the Receiving Party based on any of the foregoing.

The Receiving Party covenants and agrees that:
(i) It shall not copy, reproduce, photograph, or digitize any Development Information without express written consent;
(ii) It shall not use any Development Information, or any concepts derived therefrom, in connection with any other property or development;
(iii) For a period of three (3) years, it shall not develop or invest in any competing project within a five (5) mile radius of the Property using concepts similar to those disclosed;
(iv) It shall not share Development Information with any architect, engineer, or contractor who might be engaged on competing projects;
(v) It shall maintain detailed records of all persons who access Development Information; and
(vi) Upon termination, it shall return all originals and copies and certify destruction of all electronic files.

The Receiving Party acknowledges that Development Information constitutes valuable trade secrets and that the Disclosing Party retains all intellectual property rights therein.
Receiving Party Favor: Narrower protection focused on truly proprietary development information. Permits reasonable use by consultants and excludes publicly filed documents. Appropriate when buyers need flexibility for due diligence. 
"Development Information" means only the following categories of information, provided such information is clearly marked as confidential:

(a) Unpublished architectural renderings and design concepts not yet submitted to governmental authorities;
(b) Proprietary construction cost estimates and value engineering analyses;
(c) Non-public entitlement strategies and government negotiation positions; and
(d) Development pro formas containing the Disclosing Party's projected returns and investment criteria.

Development Information expressly excludes:
(i) Architectural plans and drawings filed with building departments or available for public review;
(ii) Permit applications, approvals, and governmental correspondence that are public records;
(iii) Standard engineering specifications and building code compliance documentation;
(iv) General construction methodologies and industry-standard practices;
(v) Information independently developed by the Receiving Party or its consultants; and
(vi) Information obtained from third parties without restriction.

The Receiving Party may:
(i) Share Development Information with its architects, engineers, contractors, and consultants for evaluation purposes;
(ii) Prepare independent analyses and pro formas using disclosed information as inputs;
(iii) Retain its own work product analyzing the development opportunity; and
(iv) Use general knowledge and expertise gained, provided specific confidential details are not disclosed.

Any restriction on competing development shall be limited to twelve (12) months and a two (2) mile radius, and shall apply only to developments substantially similar in use and scale to the specific project disclosed.

💬 Key Considerations