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HomeMy WebLinkAboutORANGE COUNTY BUSINESS COUNCILISri. N-2017-243 NON -DISCLOSURE AGREEMENT p:FMSG2� Wt 1\ \\o\ This NON -DISCLOSURE AGREEMENT ("Agreement") is entered into and effective as of November 14, 2017 ("Effective Date"), by and between the Orange County Business Council, a California nonprofit corporation ("OCBC" or "Recipient"), and the 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 "Discloser"). Each of the foregoing are hereinafter referred to as "Party" and together as the "Parties." WHEREAS, the City intends to provide business license and sales tax information to OCBC for the purpose of responding to a research study conducted by the Southern California Association of Governments, a California Joint Powers Authority ("SCAG"); and WHEREAS, the California Public Records Act (California Government Code §§ 6250 through 6276.48) as incorporated in Article 1, Section 3(b) of the California Constitution, addresses the disclosure of public information, a matter of state-wide concern and represents a statewide statutory scheme superseding local ordinance provisions relating to the discloseability of local agency information, the disclosure of local agency information pursuant to an authorized non- disclosure agreement may be made; and WHEREAS, the Public Records Act does not require the disclosure of, "(i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information." (Government Code §6254(i)); and WHEREAS, disclosure of public records that are otherwise exempt constitutes a waiver of the exemption, except in specific situations, including disclosures "made to a governmental agency that agrees to treat the disclosed material as confidential. Only persons authorized in writing by the person in charge of the agency shall be permitted to obtain the information. Any information obtained by the agency shall only be used for purposes that are consistent with existing law." (Government Code §6254.5(e)); and WHEREAS, the City desires to provide OCBC and SCAG with Confidential Information for the purpose of SCAG's research study ("Purpose"), but the City does not intend to waive the exemption to disclosure of the Confidential Information under the Public Records Act, so Recipient must comply with Government Code §6254.5(e) when handling the Confidential Information in order to preserve said exemptions. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, Discloser and Recipient agree as follows: 1. "Confidential Information" shall mean any business or technical information relating to the SCAG research study 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, 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 the SCAG research study. 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 Information to any other parties; provided, however, that Recipient may disclose Confidential Information to those of its respective directors, officers, members, employees, attorneys, and consultants (collectively, the "Representatives") who reasonably require access to the Confidential Information in order to evaluate the SCAG research study contemplated herein, provided, however, that Recipient shall cause its Representatives to comply with and be bound by the terms 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 the express purpose for which it was disclosed to Recipient by Discloser. 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, and (ii) 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 furnish 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 cant' a confidential or proprietary 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 Effective Date 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 basis 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. In the event that Recipient is requested or required pursuant to applicable law, regulation or order issued by any administrative, governmental, regulatory or judicial authority, or in response to a request from or requirement of 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 an appropriate protective order or, if appropriate, waive Recipient's compliance with the provisions of this Agreement. Recipient intends to treat the disclosed information as confidential. Accordingly, the intention of the Discloser in releasing this Confidential Information to Recipient for the specific purpose of the SCAG research study, and no other purpose, is to preserve the exemption to disclosure of the Confidential Information under the California Public Records Act (Government Code §6254.5(e)). 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 fall 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 Party. 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 State 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. 11. 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; (b) 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 ex parte 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 N-2017-243 cancels all previous agreements between the Parties hereto. No course of conduct or 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 term, condition or obligation of this Agreement. 13. This Agreement is binding on Recipient, its officers, agents, employees, consultants, and Representatives. 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, nor shall 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. 15. 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. ATTEST: • � 4 Ili• �� ��' APPROVED AS TO FORM: SONIA R. CARVALHO CITY ATTO NEYi ATTORNEY CITY OF SANTA ANA r- RAUL GODINE I CITY MANAGE 0 RECOMMENDED FOR APPROVAL: FRANCISCO GUTIERREZ EXECUTIVE DIRECTOR FINANCE & MANAGEMENT SERVICES 07000 d� i N-2017-243 S COUNCIL tpw