HomeMy WebLinkAboutWASTE MANAGEMENT COLLECTION AND RECYCLING, INC.10%RANCE NOT REQUIRED
� �'y1lf1Rl4 naav r+Pt'R:RF(�
DATE,, K% 2 & 2011
N-2017-966
;;�)A� NON -DISCLOSURE AGREEMENT
This NON -DISCLOSURE AGREEMENT {"Agreement") is entered into and effective as of
August 10, 2017 ("`Effective Date") and is between Waste Management Collection & Recycling, Inc.,
u California corporation, having a principal address of 1800 South Grand Avenue, Santa Ana CA
92705 and any affiliated or associated companies or entities ("Discioser"), and Tho City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and laws
of the State of California ("City"or "Recipient"). Each of the foregoing are hereinafter referred to
as "Party" and together as the "Parties,"
WHEREAS, Discloser is a waste hauling company presently in negotiations with the City
regarding the continued provision of refuse disposal services; and
WHEREAS, Discloser desires to provide Recipient with Confidential Information, and
Recipient wishes to possess such information, for the purpose of enabling Recipient to evaluate a
potential business transaction with Discloser ("Purpose").
NOW, THEREI+ORE, in consideration of tate mutual promises and covenants herein
contained, Discloser and Recipient agree as follows:
I. "Confidential information" shall mean any business or technical information relating to the
prospective transaction between the parties disclosed by Discloser in any form (written, visual,
electronic, aural, or otherwise) to Recipient that is treated by Discloser as proprietary, confidential,
or a trade secret, including but not limited to, any information, financial statements, social security
information, tax returns, processes, methods, know-how, trade secrets, technical information,
drawings, graphs, analytical data, data analyses, copyrighted information, techniques, equipment,
software programs, costs, profit and loss information, operating procedures, analytical protocols and
equipment, financial information, purchasing lists, customer lists, corporate alliance agreements,
internal memoranda, investor lists, capitalization tables, business and contractual relationships,
business forecasts, cost and pricing analyses and forecasts, marketing plans, and information
regarding third parties disclosed by Discloser to Recipient or obtained by Recipient through
observation or examination of information or developments.
2. The purpose of this Agreement is to enable Recipient to evaluate and/or carry out an actual
or potential business transaction with Discloser. Upon execution of this Agreement, Discloser agrees
to disclose to Recipient such items of its Confidential Information, which City determines is needed
for Recipient to carry out the Purpose of this Agreement.
3. Subject to Section 7 below, Recipient agrees to hold any and all Confidential Information
provided to Recipient pursuant to this Agreement in confidence, and to not disclose the Confidential
Infrr mation to any other parties; provided, however, that Recipient may disclose Confidential
Information to those of its affiliates and its respective directors, ofticers, members, institutional
lenders, employees, attorneys, and consultants (collectively, the "Representatives"j who reasonably
require access to the Confidential Information in order to evaluate the transaction contemplated
herein, provided, however, that Recipient shall cause its Representatives to comply with and be bound
by the teats of confidentiality and non-use contained herein. Recipient further agrees to not use the
Confidential Information in any way, including for the commercial benefit of Recipient or any other
party, outside of time express purpose for which it was disclosed to Recipient by Discloser. No
Confidential Information in the form of a physical sample shall be analyzed by the Recipient for
composition, formulation, or ingredients.
4. Within ninety (90) days after the date of receipt of a written notice by the Discloser,
Recipient must (i) destroy or return all of Discloser's Confidential Information then in its
possession or control, (ii) return at the Discloser's reasonable expense, all Confidential Information
disclosed by Discloser in the form of physical samples, and (iii) destroy all copies containing the
Discloser's Confidential Information and any other items that may have been produced by
Recipient that incorporate Discloser's Confidential Information, and upon the written request of
Discloser, will famish the Discloser with written certification of such destruction under this
Section. Notwithstanding the foregoing, the Recipient (i) may retain one copy of the Confidential
Information, for the purpose of certifying the scope and nature of the documents received under
this Agreement, and (ii) will not be required to destroy any computer files stored securely by the
Recipient that are created during automatic system back-up or retained for legal purposes by the
Recipient's legal division.
5. All reproductions, copies, or embodiments, in whole or in part, of the Confidential
Information created by Recipient shall carry a confidential orproprietary notice similar to that, if any,
with which it was submitted to the Recipient.
6. Confidential Information disclosed to Recipient hereunder is and shall remain the exclusive
property of Discloser. The confidentiality and use obligations set forth above apply to all or any
part of any Confidential Information provided after the Cffeelive Dale of this Agreement except to
the extent that such Confidential Information:
(a) was publicly known prior to disclosure by Discloser of such Confidential
Information to Recipient;
(b) is or becomes publicly known, without fault on the part of Recipient, subsequent to
disclosure by Discloser of such Confidential Information to Recipient;
(c) was otherwise known by Recipient prior to communication by Discloser to Recipient
of such Confidential Information as evidenced by written records;
(d) becomes available to the Recipient on a non -confidential hnsis from a source other
than the Discloser who is not, to the Recipient's knowledge, after reasonable inquiry, under
any obligation of confidentiality to the Discloser, and
(e) has been independently developed by Recipient without access to such Confidential
Information, as evidenced by written records.
7. Ila the event that Recipient is requested or required pursuant to applicable law, regulation
or order issued by any administrative, governmental, regulatory orjudicial authority, or in response
to a request from or requirement or the Recipient's auditors, regulators or rating agencies, to
disclose any Confidential Information, Recipient may disclose such Confidential Information,
subject to this Section 7. Prior to responding to such request or requirement, the Recipient will
provide the Discloser with prompt notice of any such requests or requirements (unless prohibited
by applicable law from doing so), so that the Discloser may seek, at its own expense, an appropriate
protective order or, if appropriate, waive Recipient's compliance with the provisions of this
Agreement. Notwithstanding the foregoing, if Recipient is legally required to disclose Confidential
Information under the California Public Records Act to any third party, Recipient may disclose
such portions of the Confidential Information that Recipient is legally required to disclose without
consent by Discloser.
S. Nothing in this Agreement shall be deemed, by implication or otherwise, to convey to
Recipient any license or other rights under any patents, patent applications, copyrights, trademarks,
trade secrets, inventions or any other intellectual property owned by Discloser, nor shall this
Agreement be deemed a commitment of any kind by either Party to enter into any further agreement
with the other. Should the Parties enter into any such further agreement, this Agreement shall not
terminate but shall continue in full force and effect according to the terms and conditions hereof,
unless otherwise agreed upon in writing by both Parties.
9. Either Party may terminate this Agreement with thirty (30) days' prior written notice to the
other Parry. The obligations of confidentiality and non-use hereunder will survive for a period of
one (1) year from the disclosure of any such Confidential Information provided, however, that such
obligations with respect to trade secrets included in the Confidential Information and identified and
maintained as trade secrets by the Discloser will continue for so long as such trade secrets retain
their legal status as trade secrets,
10. This Agreement shall be governed and construed in accordance with the laws of the Slate of
California, without regard to conflicts of law provisions. in the event any legal action becomes
necessary to enforce or interpret the terms of this Agreement, the Parties agree that such action will
be brought in the Orange County Superior Court or U.S. District Court for the Central District of
California (Southern Division), as appropriate, and the Parties hereby submit to the jurisdiction of
said courts.
It. Recipient agrees that: (a) money damages may not be a sufficient remedy for any breach
of this Agreement by Recipient, any of its affiliates, or any of its or their Representatives; (h) in
addition to any other remedies at law or in equity that Discloser may have, Discloser shall be
entitled to equitable relief, including injunction and specific performance in the event of any breach
or threatened breach of the provisions of this Agreement; and the Recipient hereby acknowledges
that the Discloser is entitled to seek, in accordance with all legal requirements, any preliminary or
esparte applications for such relief to any court of competent jurisdiction. Such remedies shall not
be deemed to be exclusive remedies for the breach or threatened breach of this Agreement but shall
be in addition to all other remedies at law or in equity.
12. This Agreement contains the entire understanding and agreement of the Parties with respect
to the subject matter hereof, and there are no representations, warranties, promises or undertakings
other than those contained herein. As to the subject matter hereof, this Agreement supersedes and
cancels all previous agreements between the Parties hereto. No course of conductor dealing between
the Parties shall act as a modification or waiver of any provision of this Agreement, and only a
modification or waiver which is contained in a single document signed by both Parties shall be
effective; provided, however, no such waiver shall be construed as any other waiver of any tern,
condition or obligation of this Agreement.
13. This Agreement is binding on Recipient, its officers, agents, employees, affiliates, and
subsidiaries. This Agreement is not assignable or transferable by Recipient without prior written
authorization from Discloser, and any such attempted transfer is null and void.
14. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, such
provision shall be fully severable from this Agreement and the other provisions hereof shall remain
in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally
construed to carry out the provisions and intent hereof. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction, norshall the invalidity or unenforceability of any provision of this
Agreement with respect to any person or entity affect the validity or enforceability of such provision
with respect to any other person or entity.
IS. This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same instrument
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, and its
effectiveness shall date from the Effective Date.
WASTE MANAGEMENT COLLECTION
& RECYCLING. INC. /
CITY OF SANTA ANA
By:
0 1 L
By:
Nam 'o'Z./+n/
Name:
Title:
�16C [�/2E St i
Title:
Date:
it/ 1 `'l) 4.b t
Date:
APPROVED AS TO FORM
SONIA R. CARVALHO, CITY ATTORNEY
i+
By:
J& M. Funk, Assistant City Attorney
ATTEST
By:
Marfa D. Huizar, Clerk of the Council
7 / EA6X 2 4 2017
RECOMMENDED FOR APPROVAL
By: [V
Fred lMousavipour
Executive Director, Public Works Agency
4