HomeMy WebLinkAboutVERIZON BUSINESS NETWORK SERVICE-2018INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK Of COUNCIL
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NON -DISCLOSURE AGREEMENT
This NON -DISCLOSURE AGREEMENT ("Agreement"), is made and entered into as of April S, 20123
("Etfectivo Date") by and between THE CITY OF SANTA ANA (the "City") and Verizon Business
Network Services Inc., a Delaware corporation with its principal offices at One Verizon Way, Basking
Ridge, New Jersey, 07920 ("VBNS") and its affiliates (defined as an entity controlling, majority-owned,
controlled or under common voting control with VBNS , or a contractual or joint venture partner,
possessing, whether by contract or otherwise, similar rights or obligations (individually or collectively, the
"Company"), The City and the Company may be referred to herein collectively as the "Parties" and
individually as a "Party".
WHEREAS, the City and the Company desire to engage in preliminary, discussions concerning the
deployment of wireless and wireline network infrastructure, among other, related matters;
WHEREAS, the Company may provide to the City Confidential Information (as dofined below) to
allow the City the ability to understand the wireless and wireline network deployment;
NOW, THEREFORE, in consideration of the foregoing, the City and the Company hereby agree
as follows:
1. "Confidential Information" means information not generally known to the public, and which is
maintained by the Company as confidential, whether of a technical, business or other nature that
relates to the infrastructure and network deployment or a potential agreement between the City and the
Company. Other information, although not necessarily directly related to tho infrastructure and
network deployment or a potential agreement between the City and the Company, is nevertheless
disclosed as a result of the Parties' discussions, and that should be reasonably understood by the City
to be confidential or proprietary because of: (f) legends or other markings, (if) the circumstances of
disclosure, or (iii) the nature:of.the information itself to be Confidential Information.
2, The Company may provide Confidential Information in written or tangible form (including
information in computer software or held in electronic storage media) or by oral, visual or other
means. Confidential Information may also, without limitation, include confidential or proprietary
documents, plans, records, reports, correspondence, applications, data and any and all other sources of
information, If the Confidential informnation is provided orally, it shall be deemed to be confidential
or propricany n raenunco as such oy me company ac rno nine n is proviam. uontictenuai
Information shall not include information that is in the public domain, infonnation that the City
independently and lawfully obtains and/or information that the City obtains by a court order.
By submitting the Confidential hifornnation, the Company does not grant to the City or any third
party any license, explicitly or implicitly, under any trademark, patent, copyright, mask work,
protection right, trade secret or any other intellectual property right, except for the uses identified
herein. Further, any submittal of the Confidential Information does not constitute or imply any
commitment, promise, or inducement by the Company or the City to enter into any further
agreements.
4. Except as otherwise required by law, the Confidential hif nination and any information derived
directly from the Confidential Information will be used solely for the purpose of evaluating the
infrastracture and network deployment or a potential agreement between the City and the Company.
The City and any party to whom the Con clontial Information is furnished as provided herein, shall
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keep the Confidential Information confidential and shall not disclose the Confidential Information to
any third persons except as required by law or as permitted pursuant to the terms set forth in this
Agreement,
5. The City may disclose the Confidential Information or portions thereof only to the persons to whom
such disclosure is permissible (collectively, the "Representatives") as follows: (i) the City's
consultant: Magellan Advisors; (ii) the City's mayor, council members, officers, employees and legal
counsel on a need -to -know basis; (iii) other state agencies, local governments or local development
authorities and their respective officers and employees, whose assistance way be requested or
required in connection with evaluating infrastructure and network deployment or a potential
agreement between the City and the Company; or (iv) as otherwise allowed by the terms of
Paragraphsl-3 herein. Prior to providing any of the Confidential Information to the Representatives,
the City shall advise any and all of the Representatives of the confidential nature of the Confidential
Information and require each such Representative to comply with the requirements of this
Agreement.
6. Any person who is provided with Confidential Information shall make best efforts to hilly protect the
Confidential Information, including but not limited to (i) if the Confidential Information contains
hard copies, to keep that Confidential Information in a locked location and to restrict access to
anyone who does not have permission to review the Confidential Information; and (ii) if Confidential
Information is in digital format, to maintain the Confidential Information in a system with encryption
and to restrict access to anyone who does not have permission to review the Confidential
Information.
7, The City further agrees not to issue any press releases announcing the infrastructure and network
deployment or a potential agreement between the City and the Company or make any similar
affirmative announcement to any third person unless the Company provides written consent or if
compelled by law, subject to the provisions of Paragraphs 7 and 8 below.
H
The Company acknowledges that the California Public Records Act requires that public records must
be promptly disclosed by the City upon request unless specifically exempted from disclosure. If
compelled by deposition, interrogatory, request for documents, subpoena, civil investigative demand,
or public records request (including under the state statute cited above or any City ordinance,
resolutions or regulations implementing this state statute), or similar processes, to disclose any of the
Confidential Information, the City as appropriate, shall use its best efforts to immediately provide the
Company with prompt written notice (via email). The City shall also independently assert any
applicable exemptions and objections to disclosure of the Confidential Information. Notices under
this provision shall be sent to otharr.rorrers@verizon.com,
9. The Company acknowledges that the courts may compel the City to disclose Confidential
Information even where it has withheld the requested records as a trade secret or proprietary
document or otherwise. In the event that the City makes a preliminary or final determination of
whether legal process or the state statute cited in Paragraph 8 above compels disclosure of
specifically identified Confidential Information, and intends to disclose such Confidential
Information, the City shall notify the Company at the email address specified in Paragraph 8 within
three (3) calendar days of such determination and prior to any disclosure (but in airy event in a
reasonable amount of time for the Company to file a legal action to obtain a protective order or to
onjoin such disclosure), In the event the Company does not obtain a protective order, injunction or
other remedy, the City or Representative will furnish only that portion of the Confidential
Information that it is legally required to disclose, The Company reserves the right to waive
compliance with this Agreement.
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10. The City agrees and acknowledges as follows: (f) the Confidential Information provided by the
Company to the City is owned by the Company, (fi) the Confidential Information has groat value to the
Company, (iii) that the Company has made significant efforts to keep the Confidential Intbnnation
confidential, and (N) that breach of this Agreement will cause significant harm to Company. The City
further agrees that this Agreoment is not, and shall not be, construed to be a restriction on lawful trade,
profession or business.
11. Each actual breach of this Agreement herein shall generate a claim in favor of the Company that the
Company inay assert against the breaching party, Upon such breach, the Company shall be authorized
to seek all remedies available at law or in equity, including actual and punitive damages, injunctive
relief and specific performance.. The City agrees that monetary damages will not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive and not to assert the defense in any action for specific performance that a
remedy at law would be adequate.
12. This Agreement will expire upon the earlier of (i) one (1) year from the Effective Date or (ii) upon the
completion of the infrastructure and network deployment or execution of an agreement between the
City and the Company, If a subsequent agreemciit is executod tliat contains a confidentiality provision,
the terms and conditions of that agreement shall govern the issues ofrion-disclosure and confidentiality.
Upon written request made by the Company or in the event this Agreement expires without a
subsequent agreement, the City shall have thirty (30) days to either (i) promptly return to the Company
all Confidential Information, all copies thereof, and any notes, reports, compilations, records, or similar
documents derived or made therefrom, or (ii) agree with the Company upon appropriate methods and
certification of destruction or other disposition of the foregoing. Notwithstanding such expiation or
termination, all of City's nondisclosure obligations under this Agreement will survive with respect to
any Confidential Information received prior to such expiration or termination unless a subsequent
agreement is in effect in which case it shall govern.
13. This Agreement also applies to Confidential Information already disclosed to the City and the City
represents that Confidential Information disclosed prior to die Effective Date has not been disclosed to
any third persons, .Any previously disclosed Confidential Information is subject to the terms and
conditions of this Agreement.
14. No failure or delay by the Company or the City to exercise any right, power or privilege hereunder
15. This Agreement shall be binding upon and inure to the benefit of the City and the Company and their
respective successors and assigns. This Agreement shall be governed by and construed in accordance
with the laws of the State of Califonia without reference to its conflict of law provisions, Each Party
hereto hereby irrevocably and unconditionally (i) consents and submits to the exclusive jurisdiction
of the State of California, For any actions, suits or proceedings arising out of or relating to this
Agreement or the transactions contemplated by this Agreement (and agrees not to corninence any
litigation relating thereto except in such courts), and (ii) waives any objection to the laying of venue
of any Such11Lt�jatiVrl 111 t11G L✓lL111V.CI.I1.a 4V ll[LJ.
16. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute the same agreement.
17. This Agreement contains the entire agreement and understanding concerning the subject matter
hereof between the City and the Company and may not be amended except by a writing executed by
both the City and the Company
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18. Except as expressly provided herein, nothing in this Agreement creates, implies or evidences any
partnership orjoint venture between the Parties, or the relationship between them of principal and
agent. No Party has any authority to make any representation or commitment, or to incur any
liability, on behalf of the others.
19. Each person signing this Agreement represents and warrants that he or she is duly authorized and has
legal capacity to execute and deliver this Agreement. Each Patty represents and warrants to the others
that the execution and delivery of the Agreement and the performance of such Party's obligations
hereunder have been duly authorized.
IN WITNESS WHERE, OF, the City and the Company have executed this Agreement effective
as of the date first above written,
THE CITY OF SANTA
ANA
By: �
U
Raul Godinez 11
City Manager
APPROVED AS TO FORM
MM.%iv y .
n M. Funk
sststant City Attorney
VERIZON BUSINESS NETWORK SERVICES
INC.
By -
Name: y:
Name; t1zrJ {l L i>
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