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HomeMy WebLinkAboutContract 48279 YCO1TRACT N0. NONDISCLOSURE AGREEMENT This Nondisclosure Agreement(the"Agreement")is made by and between B.C.Ziegler and Company("BCZ")and The City of Fort Worth,Texas("City")as of the last date written below(the"Effective Date"). In connection with discussions between BCZ and the City regarding the possible investment by our client,Pure Renewables LLC in the City (collectively,the "Transaction"),it will be necessary for each party to receive from the other certain documentation and information considered confidential and/or proprietary by the other party. In consideration of the receipt of that confidential information,the parties agree as follows: 1. Definition of Confidential Information. "Confidential Information"means all oral,written and electronic information,furnished by either party to the other in connection with the Transaction whether furnished before,on or after the Effective Date. The party disclosing information is referred to as the"Owner"of the information,and the party receiving information is referred to as the"Recipient." All notes,memoranda,analyses,compilations,studies and other documents, whether prepared by Owner,Recipient or others,to the extent they contain or otherwise reflect information furnished in connection with the Transaction will also be"Confidential Information." Confidential Information does not include information which(i)becomes generally available to the public other than as a result of disclosure by Recipient in violation of the terms thereof,(ii)was known by the Recipient at the time of disclosure of the information by the Owner,(iii)was or becomes available to the Recipient from a source other than the Owner if,to the best of Recipient's knowledge,that source was not legally bound to the Owner to maintain the confidentiality of the information,or(iv)independently developed by Recipient without reference to the Confidential Information. 2. Obligation of Confidentiality. Recipient agrees to keep the Confidential Information confidential,and will not,without prior written consent of Owner,(i)use,for itself or on behalf of any other person,any portion of the Confidential Information for any purpose other than evaluation of,the Transaction;or(ii)disclose any portion of the Confidential Information to any person,other than to employees,officers,directors,consultants,contractors,and agents who have a need to know in connection with the Transaction.The term"person"will mean any corporation,partnership,individual or any other entity. Owner will use best efforts to mark all Confidential Information as"Confidential." Recipient will inform those employees,officers,directors,consultants,contractors and agents to whom Confidential Information is disclosed of the confidential nature of the Confidential Information,and will direct them to comply with this Agreement as if they were parties to it. Each party agrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party which may come to its attention. 3. No License. No right or license,other than as expressly stated in this Agreement, is granted to Recipient in connection with the Confidential Information. 4. Compliance with the Law. Owner understands and agrees that Recipient is subject to the Texas Public Information Act,Chapter 552,Texas Government Code(the"Act"). If Recipient becomes legally compelled(by interrogatories,requests for information or documents,subpoenas,civil investigative demands,applicable regulations or similar processes)to disclose any Confidential Information,.Recipient agrees to provide Owner with prompt notice of that request(s)so that Owner may seek an appropriate protective order or other appropriate remedy and/or waive Recipient's compliance with the provisions of this Agreement. If that protective order or other remedy is not obtained by the date that the Recipient must comply with the request,or if Owner waives compliance with the provisions of this Agreement,Recipient agrees to furnish only that portion of the Confidential Information which is legally required in the reasonable opinion of its counsel(after consultation with Owner's counsel,if specifically requested by Owner),and to exercise commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information which is being furnished or disclosed. 5. Return or Destruction of Materials. Upon termination of discussions regarding the Transaction,each Recipient will,and will cause its employees,officers,directors,consultants,contractors and agents to,return all Confidential Information to the other party or,promptly upon the written request of Owner and subject to applicable law regarding document retention,destroy all documents or other materials furnished by the Owner to Recipient constituting Confidential Information,without retaining any copies of them. Recipient will also return or,subject to applicable law regarding doc retention,destroy all other documents or matters constituting Confidential Information(including all electronic images o �. Confidential Information,except to the extent these messages must be archived pursuant to securities industry regulatio ), Q and will confirm in writing that all Confidential Information has been returned or destroyed. The obligations of IFS confidentiality and agreements contained in this Agreement will survive any return or destruction of material. CC _ 6. Term. This Agreement will be effective for the time period from the Effective Date to one(1)year el the termination date of the business relationship between the parties with respect to the Transaction(the"Term"),and 11 U obligations regarding confidentiality will cease after the Term. ® . Y~. 7. Governing Law and Jurisdiction. This Agreement will be interpreted in accordance with the internal laws of the State of Texas,without giving effect to the principles of conflicts of law. The parties agrees that to the extent either party institutes any legal action,suit or proceeding against the other,arising under or relating to this Agreement,it shall do so in the federal courts for the Northern District of Texas,Fort Worth Division,or the state courts located in County of Tarrant, State of Texas,and that the party against whom the action is instituted agrees to waive any objection to the laying of such suit,action or proceeding in such courts. 8. No Representation or Warranty. Each party acknowledges that it has endeavored to include in the Confidential Information which it believes to be relevant to the evaluation of the Transaction but makes no representation or warrant as to the accuracy or completeness of the Confidential Information. Neither party will have any liability based upon the Confidential Information. The parties agree that unless and until a definitive agreement between the parties with respect to the Transaction has been executed and delivered,neither party is under any legal obligation with respect to such Transaction except for matters specifically agreed to herein. 9. Miscellaneous. The captions contained in this Agreement will not be deemed to affect the meaning or construction of any of its provisions. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement. All prior agreements,understandings,proposals or representations dealing with the subject matter of this Agreement are terminated and canceled entirely. This Agreement may only be modified in a written document executed by both parties. All notices,requests,consents and other communications required or permitted to be delivered hereunder will be made in writing and will be delivered by hand,via overnight delivery service or by registered or certified mail,postage prepaid. This Agreement may also be executed by facsimile signatures,which will be as effective as original signatures. Each party signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below. It is understood that by execution of this Agreement,Recipient does not waive or surrender any of its governmental powers or immunities. The provisions and conditions of this Agreement are solely for the benefit of Owner and Recipient,and are not intended to create any rights,contractual or otherwise,to any other person or entity. 10. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party's business,and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach or threatened breach by either party of any covenants and agreements set forth herein. Accordingly,each party agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to the other party and that,in addition to any other remedies that may be available,in law, in equity or otherwise,the other party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,without the necessity of proving actual damages. No bond or other security will be required in connection with such injunctive relief. The prevailing party in any judicial action or arbitration to enforce this Agreement will also be entitled to recover court costs and reasonable attorneys'fees after issuance of a final judgment in its favor. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the last date written below. City of Fort Worth,Texas B.C.ZIEGLER AND COMPANY By: By:- - Miyun Cho Fellerhoff Name:Jesus J.Chap Managing Director Title: Assistant City Manager Date: September 16,2016 Date: 2—.z o Z& Approved as to Form and Legality: rr opp�� ®p" �o o R 1 By: oO W 'W Z Peter Vaky �j S °fig ,J v Deputy City Attorney oo 08� y o, a �o Jt'L�-C �. Ataa6tvd XAg ��,. win &6 Mary m4irr city�Secretary 7. Governing Law and Jurisdiction. This Agreement will be interpreted in accordance with the internal laws of the State of Texas,without giving effect to the principles of conflicts of law. The parties agrees that to the extent either party institutes any legal action,suit or proceeding against the other,arising under or relating to this Agreement,it shall do so in the federal courts for the Northern District of Texas,Fort Worth Division,or the state courts located in County of Tarrant,State of Texas,and that the party against whom the action is instituted agrees to waive any objection to the laying of such suit,action or proceeding in such courts. S. No Representation or Warranty. Each party acknowledges that it has endeavored to include in the Confidential Information which it believes to be relevant to the evaluation of the Transaction but makes no representation or wan-ant as to the accuracy or completeness of the Confidential Information. Neither party will have any liability based upon the Confidential Information. The parties agree that unless and until a definitive agreement between the parties with respect to the Transaction has been executed and delivered,neither party is under any legal obligation with respect to such Transaction except for matters specifically agreed to herein. 9. Miscellaneous. The captions contained in this Agreement will not be deemed to affect the meaning or construction of any of its provisions. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement. All prior agreements,understandings,proposals or representations dealing with the subject matter of this Agreement are terminated and canceled entirely. This Agreement may only be modified in a written document executed by both parties. All notices,requests,consents and other communications required or permitted to be delivered hereunder will be made in writing and will be delivered by hand,via overnight delivery service or by registered or certified mail,postage prepaid. This Agreement may also be executed by facsimile signatures,which will be as effective as original signatures. Each party signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below. It is understood that by execution of this Agreement,Recipient does not waive or surrender any of its governmental powers or immunities. The provisions and conditions of this Agreement are solely for the benefit of Owner and Recipient,and are not intended to create any rights,contractual or otherwise,to any other person or entity. 10. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party's business,and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach or threatened breach by either party of any covenants and agreements set forth herein. Accordingly,each party agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to the other party and that,in addition to any other remedies that may be available,in law,in equity or otherwise,the other party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,without the necessity of proving actual damages. No bond or other security will be required in connection with such injunctive relief. The prevailing party in any judicial action or arbitration to enforce this Agreement will also be entitled to recover court costs and reasonable attorneys'fees after issuance of a final judgment in its favor. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the last date written below. City of Fort Worth,Texas B.C.ZIEGLER AND COMPANY By: Miyun Cho Fellerhoff Name:Jesus J.Chapa Managing Director Title: Assistant City Manager Date: September 16.2016 Date: /g%Z O Z1 Approved as to Form and Legality: cc v By' �.UJ Peter Vaky V Deputy City Attorney .Q y �/ o Q