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HomeMy WebLinkAboutContract 56228 CSC No.56228 Third Partners LLC Confidentiality Agreement— Third Partners LLC Provides Information Effective as of the executed by the City of Fort Worth City Secretary. City of Fort Worth 200 Texas St. Fort Worth, TX Attention: Valerie Washington, Assistant City Manager Gentlemen and Ladies: City of Fort Worth("you") and Third Partners LLC, a New Jersey Limited Liability Company with 29 Olmstead Road, Morristown NJ("Third Partners" or"we" or"us") are entering into this letter agreement(this "Letter Agreement")in connection with our consideration of a possible negotiated transaction between you and us or one or more of our clients, involving the use of intellectual property owned, controlled or otherwise represented by us or our clients ("Third Partners IF')for services provided in connection with a Third Partners global pro-social initiative (such possible transaction, the "Transaction"). In connection therewith, we or our directors, officers, employees, legal advisors, financial advisors, auditors, consultants or other representatives and certain directors, officers, employees and other representatives of Third Partners Inc. (collectively, "our Representatives") are prepared to make available to you or your Representatives (as hereinafter defined) certain financial and other non- public information concerning Third Partners and its business, which information, together with any financial and other non-public information concerning Third Partners and any of Third Partners's clients or other businesses, whether provided before, on or after the date of this Letter Agreement, whether written or oral and regardless of the manner or form in which it is provided, together with any notes, memoranda, summaries, analyses, compilations, forecasts, studies, interpretations or other documents prepared by you or your Representatives based on, containing, derived from or otherwise reflecting such information, is hereinafter referred to as the "Evaluation Material." The term"Evaluation Material" does not include information that(i)is or becomes generally available to the public other than (a) as a result of a disclosure by you or your Representatives in violation of this Letter Agreement or(b)in violation of a confidentiality obligation owed to us or (ii)is or becomes available to you on a non-confidential basis from a source (other than us or our Representatives)that is entitled to disclose it to you. For purposes of this Letter Agreement, the term "person" includes any corporation, company, partnership, limited liability company or other legal or business entity or individual. In consideration of our providing the Evaluation Material to you, you agree that: 1. You shall use the Evaluation Material solely for the purpose of evaluating and negotiating the Transaction and not for any other purpose, and, except to the extent permitted by Paragraph 3 hereof, you shall keep the Evaluation Material strictly confidential, except that you may disclose Evaluation Material to those of your directors, officers, employees, legal advisors or financial advisors who need to know such information for the purpose of assisting you in evaluating and negotiating the terms of the Transaction (collectively, "your Representatives"). Third Partners LLC OFFICIAL RECORD City of Fort Worth 1 CITY SECRETARY FT.WORTH,TX You shall advise your Representatives that all Evaluation Material is confidential and that by receiving such information they are agreeing to be bound by this Letter Agreement and to use the information solely for the purposes described herein. You shall not reproduce and distribute, disclose or otherwise disseminate Evaluation Material, or authorize any other person or entity to do so, to anyone except your Representatives. You acknowledge that Evaluation Material includes any confidential creative assets, designs, creative or marketing plans, style guides or other materials provided with respect to the Third Partners IP, and that we may require you and your Representatives to establish and comply with specific security procedures with respect thereto. Without our prior written consent, you shall not, and you shall cause your Representatives not to, disclose the Evaluation Material in whole or in part, except to the extent permitted by this Paragraph 1 and Paragraph 3 hereof. You agree to be responsible for any breach of this Letter Agreement by any of your Representatives. 2. Except to the extent permitted by Paragraph 3 hereof, you shall not, and you shall cause your Representatives not to, disclose to any person (other than your Representatives)the fact that the Evaluation Material has been made available, that discussions or negotiations are taking place or have taken place concerning the Transaction or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof or the existence of this Letter Agreement. You further agree that, without our prior written consent, you shall not, directly or indirectly, enter into any agreement, arrangement or understanding regarding the Transaction with any person other than your Representatives, or participate in any discussions or other communications that might lead to such agreement, arrangement or understanding, and you hereby acknowledge that no such agreement, arrangement or understanding exists as of the date hereof. In furtherance of the foregoing, if at any time you would like to consider the participation, directly or indirectly, by a third party as an equity or debt participant, equity or debt financing source, co-purchaser, partner or joint venturer in connection with the Transaction, you agree to obtain our written approval prior to communicating with any such third party. Neither you nor your Representatives shall disclose any Evaluation Material to any such third party until such third party has executed a joinder to this Letter Agreement or a confidentiality agreement, in each case reasonably satisfactory to us, after which such third party will be deemed to be your Representative. 3. In the event that you or any of your Representatives are required by applicable law, rule or regulation to disclose any Evaluation Material or any other information the disclosure of which is restricted by the terms of this Letter Agreement, you shall provide us with prompt written notice of the request or requirement so that we may, prior to any disclosure by you, seek an appropriate protective order or other appropriate remedy (and if we seek an order, you shall cooperate as we may reasonably request). If in the absence of a protective order or other remedy, you or any of your Representatives are nonetheless, in the opinion of your counsel or counsel of any such Representative, required by applicable law to disclose Evaluation Material or other information, you or any such Representative may disclose only that portion of the Evaluation Material or other information that you or such Representative are advised by counsel is so legally required to be disclosed, and you shall use your reasonable best efforts to obtain assurance that confidential treatment will be accorded the disclosed Evaluation Material or other information. THIRD PARTNERS-NDA City of Fort Worth 2 4. All Evaluation Material that we disclose to you hereunder is and will remain our property and no rights to use, license or otherwise exploit the Evaluation Material are hereby granted to you, by implication or otherwise, except as specifically provided for in this Letter Agreement. If you determine not to proceed with the Transaction, you shall promptly notify us. Except to the extent you are advised by counsel that such action is prohibited by applicable law, within five days after we so request, (a) you and your Representatives shall deliver to us or destroy, at our option, all tangible copies of documents furnished by or on behalf of us (in whatever form) (including all copies or reproductions thereof), and (b) you and your Representatives shall destroy all electronic copies of the Evaluation Material in your and their possession, and one of your duly authorized executives shall certify to us in writing such return and/or destruction. All Evaluation Material, whether or not returned or destroyed and including any oral Evaluation Material, will at all times remain subject to the confidentiality obligations set forth in this Letter Agreement. We acknowledge that you are governed by record retention law by the State of Texas. 5. You understand that neither we nor any of our Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any of the Evaluation Material or any other materials provided to you in connection with the Transaction. You understand that you should not rely on any estimates or projections with respect to future performance included in the Evaluation Material or other materials provided to you in connection with the Transaction as accurate representations or assurances of future results. Neither we nor any of our Representatives will have any liability to you or any of your Representatives resulting from your or their use of the Evaluation Material or any other materials provided to you in connection with the Transaction, or for any errors contained therein or omissions therefrom. 6. You acknowledge and agree that(a)we and our Representatives are free to conduct the process relating to the Transaction as we, in our sole discretion, determine (including by negotiating with any prospective buyer and entering into a preliminary or definitive agreement) (b)we reserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any time, to reject any and all proposals that you or any of your Representatives make with regard to the Transaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c)unless and until a written definitive agreement concerning the Transaction has been duly entered into by all parties thereto, neither party nor any of its respective Representatives will have any obligation with respect to the Transaction, whether by virtue of this Letter Agreement or any other written or oral expression with respect to the Transaction (except as specifically provided in this Letter Agreement) or otherwise. We acknowledge that you are bound by the State of Texas procurement statutes and the City of Fort Worth Charter, City Code and policies and procedures adopted by the City Council and or City Manager and shall provide advance written notice to you of any change in process or procedure relating to the Transaction for the purpose of you remaining in compliance with such governance. 7. You agree that, as between you and Third Partners, Third Partners is the sole owner of all rights, title and interest in all of the work performed or materials that may be created hereunder or provided by Third Partners that is based on, uses, is inspired by or is otherwise THIRD PARTNERS-NDA City of Fort Worth 3 derived from or related to the Third Partners IP. All of the results, products and proceeds of any and all work, services and materials, including without limitation, all visual, audio, audio-visual, literary, digital, artistic and other creations, including, without limitation, artwork, designs, drawings, sketches, paintings, writings of any kind, computer software, typefaces, models, samples, casts, coloring, discs, video sequences, style guides, film, sound recordings, ingredients, molds,prints,printing plates, silk-screens,packaging and other similar materials created,produced or worked upon by you under this Letter Agreement and/or as a result of the Transaction ("Materials")will upon their creation be deemed "works made for hire" for Third Partners within the meaning of the U.S. Copyright Law. To the extent that any of such Materials do not so qualify for any reason, you irrevocably and absolutely assign to Third Partners all rights of every kind and nature,whether now known or hereafter devised,throughout the universe in perpetuity in all media now known or hereafter developed, including but not limited to the copyright and any extensions and renewals thereof and the trademarks and the goodwill associated therewith, in and to the Materials (including, but not limited to, all material relating to the Materials created by you at any time prior to the date of this Letter Agreement). You hereby waive any "moral rights" (as such term is commonly understood)you may have in and to the Material throughout the universe. 10. Except as otherwise specifically provided herein or in any definitive agreement executed by the parties with respect to the Transaction, this Letter Agreement and the parties' obligations hereunder will terminate on the date that is twenty-four(24) months after the date of this Letter Agreement. 11. This Letter Agreement is binding on and inures to the benefit of the parties and their respective successors and assigns; provided that you may not assign this Letter Agreement to any person without our prior written consent, which consent may be withheld in our sole discretion. 12. If any provision of this Letter Agreement is not enforceable in whole or in part, the remaining provisions of this Letter Agreement will not be affected thereby. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 13. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and we have a commonality of interest with respect to those matters and it is your and our intention and mutual understanding that the sharing of those materials or information is not intended to, and will not, waive or diminish in any way the confidentiality of the material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to protection under those privileges, this Letter Agreement and under the joint defense doctrine. THIRD PARTNERS-NDA City of Fort Worth 4 14. This Letter Agreement and those disputes, claims, actions, suits, controversies arising hereunder or relating hereto (collectively "Disputes")including any questions regarding its interpretation, performance, termination or expiration will be exclusively governed by, and construed in accordance with, the substantive laws and decisions of the State of New York. Each party agrees that those disputes, claims, actions, suits, controversies arising hereunder or relating hereto any claim regarding the existence or validity of this Agreement and any claim in tort will be exclusively governed by, and construed in accordance with, the substantive laws and decisions of the State of Texas. 15. Nothing in this Letter Agreement will be deemed to create any agency, partnership,joint venture or other form of business association between the parties. 16. This Letter Agreement contains the entire agreement between you and us concerning the subject matter hereof, and neither you nor we will be bound by any modification of this Letter Agreement or waiver of the terms hereof except as we each approve in writing. 17. This Letter Agreement may be signed in counterparts, each of which, when signed, will be an original hereof binding on the party signing it. The parties confirm that any facsimile or PDF copy of a party's signed counterpart of this Letter Agreement(or its signature page)will be deemed a duly signed original. Furthermore, this Letter Agreement may be signed via an electronic signature system (e.g., Adobe Sign, DocuSign). If you elect to execute this Letter Agreement using an electronic signature process, you irrevocably agree that: (a)the signatory is fully authorized to execute this Letter Agreement on your behalf, (b)the corresponding signature will be deemed to be authentic and have equal status and enforceability as if the document had been physically executed by you; and (c) the corresponding fully- executed document is fully enforceable, valid and binding immediately upon counter-signature and delivery by us (whether physical or electronic). Please indicate your agreement with the foregoing by signing below and returning one copy of this Letter Agreement to us. Very truly yours, ACCEPTED AND AGREED TO: City of Fort Worth Third Partners LLC J9 Ad4_-) -IO&V e te Valerie Washington(Aug30,2021 12:02 CDT) John Haugen(Aug 6,202115:14 CDT) Valerie Washington By: John Haugen Assistant City Manager Title: Principal & Client Director THIRD PARTNERS-NDA City of Fort Worth 5 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX APPROVED AS TO FORM AND LEGALITY: Christa�C' Lonez-Revnol�ls Christa R.Lopez-Reynolds(Aug 30,2U2110:45 CDT) Christa R. Lopez-Reynolds Senior Assistant City Attorney RECCOMENDED BY: Cody Whitt urg(Aug 0,202107:24 CDT) Cody M. Whittenburg Environmental Program Manager ATTEST: ab�4oR��a A �. °°° r Dk? zG °Ronald P.Gonzales(Aug 30,202115:09 CDT) 1"0 ° d Ronald Gonzales 00° '_° 0 d Acting City Secretary �aaa00- a�n000000 EXpso4p CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. . �/1 Nixalis Be itez(ALFg 26,202116:43 CDT) By: Nixalis Benitez Title: Environmental Supervisor THIRD PARTNERS-NDA City of Fort Worth OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX