Loading...
HomeMy WebLinkAboutCM Confidentiality and Non-Disclosure AgreementCONFIDENTIALITY AND NON -DISCLOSURE AGREEMENT FOR SPECIFIC CONTRACT OPPORTUNITY THIS CONFIDENTIALITY AND NON -DISCLOSURE AGREEMENT (the "Agreement") is made and entered into this 281 day of April, 2022, by and between BCT Partners, LLC, a New Jersey limited liability company ("BCT"), and the City of San Rafael, a California charter city ("City"). The contract opportunity with City, for DEI Consulting Services (the "Contract"), BCT and City may wish to disclose to and/or receive from one another (each of BCT and City in its capacity as the disclosing party or the receiving party, as applicable, shall sometimes hereinafter be referred to as the "Disclosing Party" or the "Receiving Party," respectively), from time to time, certain of Disclosing Party's trade secrets and other confidential and/or proprietary information, the disclosure of which to the public or competitors would be detrimental to Disclosing Party. In order to induce Disclosing Party to disclose such information, Receiving Party agrees to keep such information secret and confidential in accordance with the terms of this Agreement. SECTION 1 Confidentiality and Non -Disclosure. 1.1 Receiving Party shall not disclose, divulge, disseminate, or make accessible, directly or indirectly, any portion of the Confidential Information (as defined below) or its contents to any person other than an Authorized Agent (as defined below). In furtherance of the foregoing, Receiving Party shall not publish or disseminate the Confidential Information within its organization to a greater extent than is absolutely necessary in order to carry out the Contract Opportunity, and Receiving Party shall maintain a record of all personnel within its organization to which the Confidential Information is disseminated. If it is necessary to disclose the Confidential Information to any person who is not an Authorized Agent, Receiving Party shall first obtain the express written consent of Disclosing Party and shall require such person to execute and deliver to Disclosing Party a confidentiality and non -disclosure agreement satisfactory to Disclosing Party. "Authorized Agent" means any full-time employee of Receiving Party to whom it is necessary to disclose the Confidential Information in order to carry out the Contract Opportunity and to whom Receiving Party has previously disclosed its obligations hereunder and who has agreed to be bound by this Agreement. "Confidential Information" means all trade secrets, know-how, techniques, processes, formulae and other confidential and/or proprietary information disclosed to Receiving Party by Disclosing Party (whether orally, in writing, electronically or otherwise), excluding any information which Receiving Party can show (a) was, through no fault of Receiving Party, in the public domain prior to the disclosure to Receiving Party, (b) becomes, after disclosure, part of the public domain by publication or otherwise, except by breach of this Agreement by Receiving Party, (c) was lawfully known by Receiving Party at the time of disclosure, (d) is independently developed by Receiving Party without I use of the Confidential Information, or (e) was disclosed to it by an independent third party having the right to disclose it. The exclusions shall not apply to any specific information merely because it is included in more general non -confidential information, nor to any specific combination of information merely because individual elements, but not the combination, are included in non -confidential information. 1.2 Receiving Party shall hold all Confidential Information in trust and in confidence for the benefit of Disclosing Parry and shall use the Confidential Information solely in connection with the Contract Opportunity. Receiving Party shall not misappropriate any Confidential Information for its own use or use, directly or indirectly, any Confidential Information in any way detrimental to Disclosing Party or for any other purpose. Without limiting the generality of the foregoing, Receiving Party shall not: (a) make, have made, use or sell for any purpose any product, item or service using, incorporating or derived from any Confidential Information unless otherwise expressly agreed to in writing by Disclosing Party; or (b) divulge any trade secrets that apply, directly or indirectly, to Disclosing Party's products, items or services that are not already part of the public domain. 1.3 Except with the express written consent of Disclosing Party, neither Receiving Party nor any of Receiving Party's agents or employees shall disclose to any person other than an Authorized Agent that Disclosing Party and Receiving Party have entered into this Agreement, that Receiving Party possesses or may possess and is using or may use the Confidential Information, or that Disclosing Party and Receiving Party have entered into or may enter into additional agreements relating to the use of the Confidential Information. 1.4 Receiving Party shall use commercially reasonable efforts, and in any event not less than those used to protect its own confidential and/or proprietary information and trade secrets, to safeguard the Confidential Information and to prevent a breach of this Agreement. Without limiting the foregoing, Receiving Party shall not permit any of its Authorized Agents who receive Confidential Information to breach the terms of this Agreement. Any such breach by an Authorized Agent shall constitute a breach of this Agreement by Receiving Party. 1.5 Except as required in order to carry out the Contract Opportunity, Receiving Party shall not make photostatic or other copies or computer imaging of the Confidential Information or any portion thereof, or make any notes, records or memoranda of the contents of Disclosing Party's Confidential Information, without the prior written consent of Disclosing Party. 1.6 All Confidential Information is, and shall continue to be, the sole and exclusive property of Disclosing Party. Upon termination of this Agreement or the request of Disclosing Party, Receiving Party shall promptly deliver to Disclosing Party all tangible forms of Disclosing Party's Confidential Information and all materials derived from or based in whole or in part on such Confidential Information (including but not limited to memoranda, summaries, analyses, drawings, models and samples) in the possession or control of Receiving Party or its employees or agents, without retaining any copies. 4 1.7 The obligations and rights of Disclosing Party and Receiving Party under this Agreement shall continue in full force and effect notwithstanding any cessation of the relationship between Disclosing Party and Receiving Party heretofore contemplated, the execution of agreements between Disclosing Parry and Receiving Party, or any other circumstance, except to the extent explicitly superseded by any subsequent agreement between Disclosing Parry and Receiving Party. Receiving Party shall not be relieved from any obligations and liabilities in respect of any breach or non-performance of this Agreement that occurs prior to such time. 1.8 Notwithstanding anything in this Agreement to the contrary, BCT acknowledges that City is a local governmental agency subject to the requirements of the California Public Records Act (California Government Code section 6250 et seq.), and that pursuant to the law the City may receive a request for disclosure of records considered to be Confidential Information under this Agreement. If the City believes that it is required to disclose the Confidential Information pursuant to the California Public Records Act and/or pursuant to an order of a court having jurisdiction over such disclosure, City shall provide notice to BCT of any such request prior to any such disclosure, so that BCT may take steps it deems appropriate to protect the Confidential Information. Following such notice to BCT, no disclosure of Confidential Information by the City shall be considered a breach of any provision of this Agreement or entitle BCT to any remedy or relief against City whatsoever. SECTION 2 Breach and Remedies. Receiving Party acknowledges that a breach by such party or its agents or employees of any of the provisions hereof will cause Disclosing Party great and irreparable injury and that it would be difficult to compensate Disclosing Party fully for damages for any violation of the provisions of this Agreement. Accordingly, Receiving Party acknowledges that Disclosing Party shall be entitled, in addition to any other remedies which it may have under this Agreement or at law, to receive temporary and permanent injunctive and other equitable relief (without the necessity of (a) proving any actual damage or that monetary damages would not afford an adequate remedy or (b) furnishing or posting any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 2), including without limitation specific performance, to enforce the provisions of this Agreement. Nothing contained herein, and no exercise by Disclosing Party of any right or remedy, shall be construed as a waiver by Disclosing Party of any other rights or remedies which Disclosing Party may have, including the right to claim and recover damages in addition to injunctive relief. No failure or delay by Disclosing Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Receiving Party shall indemnify and hold harmless Disclosing Party and any and all of Disclosing Party's respective employees and agents from any and all losses, costs, expenses (including reasonable attorneys' fees) and damages incurred by Disclosing Party as a result of any breach of this Agreement. SECTION 3 Miscellaneous. 3 3.1 Receiving Party represents and warrants that the execution, delivery and performance of this Agreement has been duly authorized by Receiving Party and does not and will not constitute a breach of any agreement or understanding binding upon Receiving Parry or any duty of Receiving Party, or any applicable law or regulation. 3.2 This Agreement by itself does not create a relationship of agency, partnership, joint venture or license between Disclosing Party and Receiving Party. Unless and until Disclosing Party enters into a subsequent written agreement with Receiving Party, Disclosing Party shall not have any liability to Receiving Party resulting from the disclosure or use or content of the Confidential Information. 3.3 The agreements set forth in this Agreement may be modified or waived only by a separate writing between Disclosing Party and Receiving Party expressly so modifying or waiving such agreements. 3.4 This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to the conflict of laws rules thereof. 3.5 This Agreement represents and constitutes the entire agreement between Disclosing Party and Receiving Party with respect to the subject matter hereof and supersedes any prior agreements, correspondence or understandings between Disclosing Party and Receiving Party with respect to the subject matter hereof. 3.6 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and may be executed by facsimile signature, which shall be legal and valid for all purposes hereof. 3.7 This Agreement shall be binding upon and shall inure to the benefit of Disclosing Party and Receiving Party and their respective successors and permitted assigns. Receiving Party may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Disclosing Party. [Remainder of Page Intentionally Left Blank; Signature Page Follows] 0 IN WITNESS WHEREOF, Disclosing Party and Receiving Party have executed this Agreement as of the day and year first written above. BCT Partners, LLC By: Name: _Shalawn Hilliard Title: Director of Administration City of S Rafael By: Name: �� f Title: /V Date: 5 RAF,q �A�r1�f 2 F Q c -r `yh Tk WITH P� CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheetto circulate all contracts for reviewand approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: City Manager Project Manager: Cristine Alilovich Extension: 3384 Contractor Name: BCT Partners, LLC Contractor's Contact: Shalawn Hilliard Contact's Email: shilliard@bctpartners.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a date. b. Email contract (in Word) and attachments to City 4/25/2022 Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 4/28/2022 ® LG and return to Project Manager 4/28/2022 ® LG b. Confirm insurance requirements, create Job on (N/A) PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreementform to send to Click or tap ❑ ---- contractor to enter a date. 4 Project Manager Forward three (3) originals of final agreementto Click hereto ❑ contractor for theirsignature enter date. 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click hereto Date of City Council approval entera date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorneywith printed copy of this routing form 7 City Attorney Review and approve hard copy of signed 4/29/22 �t agreement 8 City Attorney Review and approve insurance in PINS, and bonds 4/29/2022 (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized �� 7 official 10 City Clerk Attest signatures, retainsoriginal agreementand ` N forwards copies to Project Manager b� ��