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
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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.
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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.
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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]
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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:
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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
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forwards copies to Project Manager
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