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HomeMy WebLinkAboutSLOAN VASQUEZ, LLC (2)A- 2015 -300A CONFIDENTIALITY AND NON - DISCLOSURE AGREEMENT THIS CONFIDENTIALITY AND NON - DISCLOSURE AGREEMENT (the "Agreement") is made by and between. Sloan Vazquez, LLC, a California Limited Liability Company ( "Company ") and The City of Santa Ana, ( "the City "), a California Municipal Corporation, 1. Background and Purpose. The parties hereto have entered into a contractual agreement whereby the City has secured Company to conduct municipal solid waste and recycling service market research, and assist the City with the review and renegotiation of its current solid waste services contract, and /or develop and manage a procurement process whereby the City may v choose to enter into a new contractual agreement for the provision of municipal solid waste and recycling services, (the "Proposed Transaction "). For purposes of supporting the evaluation and decisions with respect to the Proposed Transaction (the "Purpose "), the City expects to make available to Company certain information concerning its current service contract, financial evaluations, solid waste operations, assets and liabilities. This information may be in both oral and written form. As a condition to the information being furnished to each party and its directors, officers, employees, agents or advisors (collectively, "Representatives "), Company agrees, for a period of three (3) years following the date hereof, to treat the Evaluation Material (defined below) that is furnished to it or to its Representatives (the "Recipient") in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as set forth in this Agreement. 2. Definition of Evaluation Material. Except as provided in Section 3 below, "Evaluation Material" shall mean all information that is furnished to a Recipient by the City or its Representatives ( "Discloser ") that concerns the party that is either confidential, proprietary or otherwise not generally available to the public and that: (a) is designated in writing to be confidential or proprietary; or (b) if given orally, is confirmed promptly after disclosure in writing as having been disclosed as confidential or proprietary; or (c) should reasonably be understood by the Recipient to be nonpublic, confidential or proprietary due to the circumstances under which the disclosure was made and the nature or content of the information; including, but not limited to, any and all information and data, financial or otherwise, electronic, written or oral, with respect to the business affairs or operations of the City that is or has been disclosed to the Recipient including all analysis, compilations, studies or other documents prepared by the City. 3. Exceptions. The term "Evaluation Material" does not include information that the Recipient is able to demonstrate: (a) was in its possession prior to receipt from the Discloser, provided that the source of the information was not then and is not now subject to confidentiality obligations owed to the Discloser with respect to the information; (b) was received by the Recipient on a non - confidential basis from a source who was not then and is not now subject to confidentiality obligations owed to the Discloser with respect to the information; (c) was independently developed by the Recipient without use of or reference to the Discloser's confidential, nonpublic or proprietary information; or (d) is currently or at any time becomes generally available or known to the public, other than as a result of a disclosure by the Recipient. Additionally, the Recipient shall be relieved of its non - disclosure and confidentiality obligations under this Agreement if disclosure is required by law, by a valid court order or by a governmental body of the United States or any political subdivision thereof; provided, however, that the relief shall be only to the extent of the required disclosure, and prior to any such disclosure, the Recipient shall notify the Discloser in writing of any disclosure requirement and of the facts and circumstances surrounding such requirement so that the Discloser may seek an appropriate protective order regarding the disclosure. 4. Restricted Use. The sole purpose of the exchange of Evaluation Material hereunder is to facilitate the Purpose. Accordingly, Company agrees that it and its Representatives shall not use, analyze, disclose or reproduce any Evaluation Material received from the Discloser, except in direct furtherance of the Purpose. The parties agree that the information exchange under this Agreement is not to affect, in any way, a party's relative competitive position regarding the other party or other entities. The information to be disclosed by each party shall only be that information which is reasonably necessary to evaluate the Proposed Transaction. 5. Protection of Evaluation Material. Recipient shall treat all Evaluation Material received from the Discloser as the confidential and exclusive property of the other party. Recipient agrees to take all practicable steps to ensure that such Evaluation Material shall not be disclosed to or used by any of its Representatives, except those who reasonably need to know the same in connection with the Purpose and who agree to be bound by the terms of this Agreement. Recipient additionally agrees to exercise reasonable efforts to safeguard the other party's Evaluation Material against unauthorized use, reproduction or disclosure; provided, however, that nothing in this Agreement shall obligate a party to use any greater care in the protection of Evaluation Material than the care it uses with respect to its own information of the same general type, so long as that care is at least reasonable ordinary care, under the circumstances. 6. No Warranties as to Accuracv. Each party understands and acknowledges that although the agreements and covenants of the parties contained herein shall be binding, neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Only those representations or warranties that are made in the final definitive agreement regarding any transaction contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. Each party agrees that, except as contemplated by the preceding sentence, neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from any errors in the Evaluation Material or omissions therefrom. -2- 7. No Licenses or Partnership. No provision of this Agreement is intended to or shall be deemed to grant any rights or licenses under the patents or patent applications, copyrights, trademarks, know -how, technology or trade secrets owned by a party, or to create any partnership, joint venture or other joint business arrangement between the parties. 8. Returns. Upon conclusion or termination of the Purpose, or forthwith upon the request of a party, each party agrees to promptly return to the other party (i.e., within five (5) business days) all Evaluation Material of the other party including, but not limited to all documents, drawings, electronic data and reproductions thereof which may have come into the party's possession; provided that, Evaluation Material that is inseparable from the analyses, compilations or other work prepared by or for the non - disclosing party need not be returned if promptly destroyed by the non - disclosing party; and further provided that, Evaluation Material in the form of computer hard disk media need not be returned if deleted or destroyed. Notwithstanding the return, deletion or destruction of any Evaluation Material, each party shall continue to be bound by its confidentiality, non - disclosure and other obligations under this Agreement. 9. Ownership of Evaluation Material. All Evaluation Material and any Derivatives (as defined below) thereof whether created by Discloser or Recipient, shall be or remain the property of Discloser and no license or other rights to such Evaluation Material is granted or implied by this Agreement. "Derivatives" shall mean: (i) for copyrighted or copyrightable material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from the existing trade secret material, including new material which may be protected by copyright, patent or trade secret. Each party agrees to take any further action and execute any additional documents as may be necessary to carry out the purpose and intent of this section 9. 10. No Export. Each party certifies that no information will be exported to any country in violation of the United States Export Administration Act and regulations thereunder. For the purposes of this Section, "information" is deemed to include all information furnished by a party to the other, whether or not Evaluation Material. 11. Governing Law; Non - Exclusive Jurisdiction. All matters arising out of or relating to this Agreement or the parties' respective rights and liabilities thereunder shall be governed by the laws of the State of California, without reference to its conflicts of laws provisions. Each party consents to non - exclusive personal jurisdiction in any action brought in any court, federal or state, within California, having subject matter jurisdiction arising under this Agreement. 12. Equitable Relief. Each party acknowledges that the other party will suffer irreparable harm if the party breaches any obligation under this Agreement, and that monetary damages would be inadequate to compensate the other party for the breach. Accordingly, each party agrees that, in the event of its breach or threatened breach of any of the provisions of this Agreement, the other party shall be entitled to equitable relief, including injunctive relief or specific performance. No remedy conferred or reserved in this Agreement is intended to be exclusive of any other available remedy; and each remedy shall be cumulative and shall be in addition to every other remedy now or hereafter existing at law or in equity. Sim 13. Attorneys' Fees. If any legal action is brought to enforce or construe the terms of this Agreement or because of an alleged dispute, breach, or default in connection with any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert fees and court costs incurred in the action or any appeal. 14. Waiver. The failure or delay of a party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require performance at any time thereafter. Nor shall the waiver by a party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. No waiver shall be binding unless executed in writing by the party making the waiver. 15. Miscellaneous. If any part of this Agreement is determined to be unenforceable, it shall not affect the enforceability of any other part. Any modification of this Agreement must be set forth in writing and signed by each party. Notices must be in writing and delivered to the address that the party designates below for notice (unless changed by notice). Notices sent by certified United States Mail shall be deemed delivered either at the time of actual receipt or on the third (3rd) day after mailing, whichever occurs first. No rule of strict construction shall be applied against either party. The headings of the various sections of this Agreement are for convenient reference only and shall have no interpretative effect on the provisions of this Agreement. This Agreement may be executed in counterparts. The facsimile signature of a party shall be treated as an original signature in all respects. [SIGNATURES ON FOLLOWING PAGE] -4- [SIGNATURES TO CONFIDENTIALITY AND NON - DISCLOSURE AGREEMENT] IN WITNESS OF the foregoing agreements, the undersigned parties have entered into this Agreement as of January 11, 2016. Sloan Vazquez, LLC By: "I- 2L;L� : Joe Sloan it e: Principal Address: 3002 Dow Avenue, #116 Tustin, CA 92780 Telephone: 866-241-4533 Facsimile: 714 - 276 -0625 -5- The City of Santa Ana, a California Municipal Corporation By: N m VJose San �val i e: Assistant Ci`ly Attorney Address: 20 Civic Center Plaza, M -29 Santa Ana CA 92701 Telephone: 714- 647 -5213 Facsimile: r J 4 DAVID CAVAZOS, CITY MANAGER ATTEST: `_7n D &�- MARIA D. HUIZAR CLERK OF THE N:JC7U;'