HomeMy WebLinkAboutCD 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
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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.
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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
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.TTESI : APPROVED AS TO FORM:
Lindsay Lara, City Clerk Robert F. Epstein, dity Att ney
BAE URBAN CONOMICS, INC.
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