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HomeMy WebLinkAboutContract 51733 CITY SECRETARY NTRACT NO. 13 3 RcCEIVE- JAN -4 2019 CITY OF FORT WORTH CITY SECRETARY NON-DISCLOSURE AGREEMENT This NON-DISCLOSURE AGREEMENT is made and entered by and between the City of Fort Worth, a home rule municipality organized under the laws of the State of Texas (the "City"), and Micro- Rad LLC, a Texas Limited Liability Company("Discloser"). In connection with the consideration, evaluation and/or implementation of a proposed real estate transaction or economic development incentive (the "Transaction") between the parties to this Agreement relating to Discloser's consideration of developing real property or expanding a current business operation in the City (the"Property"), Discloser wishes to disclose to City information relating to the Transaction which may consist of confidential and proprietary information. 1. Definition of Confidential Information. "Confidential Information" shall mean any of the following information notwithstanding its form (tangible, visual, oral, electronic, etc.): (a) documents, files, studies, reports, test results, brochures, offering materials, computer output and other materials and information relating to the Property and all analyses, compilations, forecasts, projections and other documents prepared based upon such materials and information and all proposals made in connections with either the purchase or sale of the Property; (b)trade secrets; (c)discoveries, ideas, concepts, techniques and know-how; (d)performance or process data; (e) costing and financial information; (f) strategic, marketing and business plans; (g) any information identified or designated as "confidential," "private," or "proprietary" (or similar terms); (h)any information which by its nature can be reasonably construed as requiring confidential treatment; (i)contracts and contractual relationships; and 0) any of the foregoing relating to Discloser's customers or clients, including the identity of such customers and clients. City agrees that title to and ownership of the Confidential Information shall remain with Discloser or the third party which owns it, and City does not acquire any rights in the Confidential Information disclosed to it under this Agreement, except the limited right to use the Confidential Information as set forth in this Agreement 2. Confidentiality Obligations. City shall (a)protect the Confidential Information with the same degree of care City employs for the protection of its own confidential and proprietary information of a similar nature, but not less than commercially reasonable care; (b) limit its use of Confidential Information for the purpose of the Transaction, and not otherwise use it for its own benefit or the benefit of others, and shall not reverse engineer any Confidential Information; (c) limit access to Confidential Information to only those of its employees, consultants, agents or representatives (and not to competitors of Discloser) who(i)have a need to know such information to accomplish the purpose of the Transaction, and (ii)have been advised by instruction, agreement or otherwise of the confidential nature of, and the duties toward,the Confidential Information; (d)not duplicate or reproduce Confidential Information other than for purposes of the Transaction unless authorized to do so in writing(all such reproductions shall be considered Confidential Information); (e)not remove, overprint or deface any notice of copyright, trademark, logo or other proprietary notices or notices of confidentiality from any originals or copies of the Confidential Information; and (f) upon termination or expiration of this Agreement return all Confidential Information to Discloser promptly upon written request or, at Discloser's option, provide written certification of the destruction thereof(with the understanding that any destruction of documents will be subject to applicable laws and regulations governing the City's records retention policy); provided, however, that City may retain one (1) archival copy of the Confidential Information, subject to the provisions of this Agreement, for the sole purpose of monitoring compliance with this Agreement. Notwithstanding anything to the contrary herein, Company understands and agrees that the City of Fort Worth is subject to the Texas Public Information Act, Chapter S , 17-900-9 OFFICIAL RECORD Non-Disclosure Agreement CITY SECRETARY vy Between Micro-Rad LLC and City of Fort Worth - 1 - FT. WORTH,TX Government Code (the "Act'q. In the event that the City of Fort Worth receives a request under the Act to release any or all Information disclosed to it by Company, the City of Fort Worth will notify Company as soon as practicable, in which case Company will have the right to assert to the Texas Attorney General that such Information is confidential and that the City should not be ordered to release such Information under the Act. In the event that the City is required to release any Confidential Information pursuant to the Act in the reasonable opinion of the City's legal counsel, the City may release such Confidential Information without liability to Discloser. All communications between the City and the Discloser are to be considered `CONFIDENTIAL & PROPRIETARY BUSINESS INFORMATIONNOT FOR RELEASE UNDER THE TEXAS PUBLIC INFORMATION ACT EXEMPTION PER SECTIONS 552.104 AND 552.107 AND ANY OTHER ASSOCL4TED BUSINESS CONFIDENTIALITY STATUTES.' 3. Exceptions to Confidentiality Obligations. The obligations under this Agreement shall not apply to any information that: (a)is in the public domain at the time of disclosure or subsequently enters the public domain without breach of this Agreement; (b) is already known to City at the time of disclosure, as shown by its written records; (c)becomes known to City from a source other than Discloser without breach of this Agreement or any other valid confidentiality obligations; (d) is independently developed by City without use of the Confidential Information, as shown by its written records; or (e) is required to be disclosed to comply with applicable laws or regulations, or with a court or administrative order,provided that Discloser receives sufficient prior written notice of such intended disclosure such that it may seek reasonable legal remedies to obtain confidential treatment for such Confidential Information. 4. Term. This Agreement shall apply only to Confidential Information disclosed during the term of this Agreement, which term shall be one (1)year following the Effective Date unless otherwise extended by the mutual, written agreement of the parties. Either party, however, may terminate this Agreement upon ten(10)days' prior written notice. Upon any such termination or expiration of this Agreement, City shall comply with the provisions of Section 0 hereof concerning the disposition of Confidential Information. City's obligations under this Agreement shall survive any termination or expiration of this Agreement for a period of three(3)years from the date of any such termination or expiration. 5. Publicity. Except as required by law, City shall not use the name of Discloser or reveal the existence or substance of ongoing discussions, negotiations or evaluations related to the subject matter of this Agreement or any subsequently executed agreement to any third party without the prior written consent of Discloser. Notwithstanding the foregoing, Discloser understands and agrees that under the Act, this Agreement is a public document and that a copy of this Agreement (but not copies of Confidential Information provided hereunder) will be available online to members of the public who undertake a search for it utilizing the search tools for public information on the City's website. 6. Limited Purpose. This Agreement is limited in purpose to the protection of the Confidential Information and shall not be construed otherwise as a teaming agreement, joint venture or any other contractual relationship. No license under any intellectual property of any kind is granted or implied by disclosure of Confidential Information hereunder. However, neither party shall be precluded hereby from performing its own independent work. Nothing in the Agreement obligates either party to enter into any transaction whatsoever; and each party shall bear all of its own costs and expenses 7. Representations and Warranties. Discloser represents and warrants that it has the unqualified right to transmit and otherwise disclose the Confidential Information under this Agreement. City acknowledges that discloser has not made any representation or warranty as to the accuracy or completeness of the confidential information, and that the confidential information is being provided on Non-Disclosure Agreement Between Micro-Rad LLC and City of Fort Worth -2- an "as is" basis. Discloser shall have no liability to City resulting from the use of the Confidential Information except to the extent subsequently set forth in any agreement that may hereafter be executed between the parties resulting from the Transaction. 8. Governing Law and Venue. This Agreement and its terms shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to principles of choice of law. Both parties agree to submit to the jurisdiction of the State of Texas to resolve any disputes regarding the interpretation, enforcement or subject matter of this Agreement. Venue for any action hereunder shall lie in state courts located in Tarrant County, Texas. 9. Remedies for Breach. City agrees that a breach or violation of this Agreement may cause Discloser irreparable harm. In the event of any breach or violation hereof by City, as the exclusive remedy hereunder,Discloser shall be entitled to seek temporary and permanent injunctive relief and other equitable relief without the necessity of posting a bond or making any undertaking in connection therewith. In no event shall the City be subject to or liable for any direct, indirect or consequential monetary damages hereunder. 10. Severability; Notices. In the event that any provision of this Agreement shall be held invalid or unenforceable for any reason, that provision shall be ineffective to the extent of such invalidity or unenforceability, and such invalidity or unenforceability shall not affect any other provision of this Agreement. If necessary,the parties shall negotiate in good faith to modify the Agreement to preserve(to the extent possible)their original intent. All notices that either party is required or may desire to give the other party under this Agreement shall be given by addressing the communication to the address set forth above, and may be given by certified, registered or express mail, postage prepaid, or shall be sent by facsimile or email transmission or overnight carrier (provided evidence of receipt can be verified). Such notices shall be deemed given on the date of receipt (or refusal) of delivery of said notice. Either party may designate a different address for receipt of notices upon written notice to the other party. 11. Entire Understanding; Amendment. This Agreement contains the entire understanding between the parties, superseding all prior or contemporaneous communications, agreements and understandings between the parties with respect to the exchange and protection of Confidential Information. No modification, extension or waiver of any provision hereof or any release of any rights hereunder shall be valid unless expressed in a writing signed by an authorized representative of each party. The provisions and conditions of this Agreement are solely for the benefit of the City and Discloser and are not intended to create any rights, contractual or otherwise, for the benefit of any other person or entity. This Agreement may not be assigned by City without the prior written consent of Discloser. Failure to enforce any term of this Agreement will not waive any rights hereunder. The parties may execute this Agreement in two or more counterparts (which may be delivered by facsimile), each of which will be deemed an original and all of which together shall constitute a single agreement. 12. Governmental Powers. By execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. Non-Disclosure Agreement Between Micro-Rad LLC and City of Fort Worth -3 - L IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives— =n>�:�. , 0RT�® r TY: ® e: ' *Y OF FORT WORTH,a Texas home rule municipality: Atxested b Mary J. Days r tart' By: S san Tanis Assistant City Manager Date: 1 12, I aV � Ia APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney (No M&C or Form 1295 Required) DISCLOSER: Micro-Rad LLC, A Texas Limited Liability Company It'_ By: Dr. Ian M. Horn Chief Executive Officer Date:December 31", 2018 OFFICIAL CITY SECRETARY r Non-Disclosure Agreement FT. WORTH, 7) Between Micro-Rad LLC and City of Fort Worth -4-