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CD General Plan 2040 Economic and Fiscal Technical Consulting Services; ConfidentialityCONFIDENTIALITY, NON -DISCLOSURE AND NON-USE AGREEMENT This CONFIDENTIALITY, NON -DISCLOSURE AND NON-USE AGREEMENT ("Agreement") is made and entered into this 16th day of May , 2019, by and between the City of San Rafael, a California charter city (the "City"), on the one hand, and BAE Urban Economics, Inc., a California corporation ("Consultant") as set forth below. RECITALS A. The City Pas pr viously entered into an Agreement for Professional Services dated O! , with Consultant to provide professional economic and fiscaf techrfical consulting services in conjunction with the City's General Plan 2040 update (the "Services"). B. In connection with the performance of the Services by Consultant, it will be necessary for Consultant (including its subsidiaries, affiliates, shareholders, directors, officers, employees, consultants, and agents) to have access to certain confidential and proprietary information of the City, including, without acting to limit the definition of such confidential and proprietary information in its most common and general sense, information such as sales tax data (including amounts and specific payees), financial projections, market analyses, or other correspondence, all of which, to the extent disclosed and made available to Consultant (either voluntarily or involuntarily), means "Confidential and Proprietary Information" as that term is used in this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals, each of which is incorporated in and made a part of this Agreement, and any access Consultant may have to Confidential and Proprietary Information, the Parties hereby agree as follows: 1. Protection of Confidential and Proprietary Information. Consultant agrees: (i) to hold Confidential and Proprietary Information in strict trust and confidence and to take all precautions to protect such Confidential and Proprietary Information, including, without limitation, all precautions that Consultant employs with respect to its own confidential and proprietary materials; (ii) not to divulge any such Confidential and Proprietary Information or any information derived therefrom to any third party, irrespective of whether or not any such third party has any such Confidential and Proprietary Information; (iii) not to make any use whatsoever at any time of such Confidential and Proprietary Information except as may be necessary to perform the Services; and (iv) not to copy or reverse engineer any such Confidential and Proprietary Information. All subsidiaries, affiliates, shareholders, directors, officers, employees, consultants, and agents of Consultant given access to any such Confidential and Proprietary Information similarly shall be bound in writing to maintain the confidentiality and 1 5 R, i Z131 INAL degree of non -disclosure and protection of Confidential and Proprietary Information contemplated by this Agreement. Any such access shall only be granted by Consultant to the extent necessary to perform the Services. 2. Return of Confidential and Proprietary Information. Immediately upon either (i) the completion of the Services described above, (ii) the decision by any Party not to continue with the Services or (iii) a request by the City at any time, Consultant will turn over to the City all Confidential and Proprietary Information of the City and all documents or media containing any such Confidential and Proprietary Information and any and all copies or extracts thereof. 3. Scope of Agreement. The obligations under this Agreement will survive the performance of the Services and any termination of this Agreement indefinitely. 4. Remedies for Breach; Indemnification. Consultant acknowledges and agrees that, due to the unique nature of the Confidential and Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Consultant or third parties to compete unfairly with the City, resulting in irreparable harm to the City, and, therefore, that upon any such breach or any threat thereof, the City shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. Consultant shall indemnify the City for any loss or harm, including, without limitation, reasonable attorneys' fees and costs, in connection with any breach or enforcement of Consultant's obligations hereunder or the unauthorized use or release of any such Confidential and Proprietary Information. Consultant will notify the City in writing immediately upon the occurrence of any such inauthorized release or other breach of which it knows or suspects. 5 Miscellaneous Provisions. 5.1 Severability. In the event that any provision in this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary such that this Agreement otherwise shall remain in full force and effect. 5.2 Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Venue for any action brought to enforce the terms of this Agreement shall be in the courts of Marin County, California. 53 Entire Agreement. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the Parties with respect to the subject matter hereof. 2 5.4 Attorneys' Fees. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable attorneys' fees and costs. 5.5 Waiver; Modification. No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party, and no failure or delay in enforcing any right by a party will be deemed a waiver by that party. 5.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first shown above. CITY OF SAN RAFAEL .f 3y J ITI S hutz, Cit tanager .TTESI : APPROVED AS TO FORM: Lindsay Lara, City Clerk Robert F. Epstein, dity Att ney BAE URBAN CONOMICS, INC. By. Name 4v `cV;,rte Its PrIt AC a and By:�,,-,,J Narne: a vvt Its fQ 3