HomeMy WebLinkAboutContract 61406CSC No. 61406
NON -DISCLOSURE AGREEMENT
This NON -DISCLOSURE AGREEMENT ("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 ("City"), and Ryan, LLC, a Delaware limited liability company ("Discloser").
In connection with the consideration, evaluation and/or implementation of a proposed real
estate transaction or economic development incentive ("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 ("Property"), Discloser wishes to disclose to City information
relating to the Transaction which may consist of confidential and proprietary information.
I . 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
j. 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;
OFFICIAL RECORD
CITY SECRETARY
Non -Disclosure Agreement Between Ryan, LLC and City of Fort Worth FT. WORTH, Tx page 1 of 5
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.
3. Public Information. Notwithstanding anything to the contrary herein, Discloser
understands and agrees that the City of Fort Worth is subject to the Texas Public Information Act,
Chapter 552, Texas Local Government Code ("Act"). In the event that the City receives a request
under the Act to release any or all Confidential Information disclosed to it by Discloser, the City
will notify Discloser as soon as practicable, in which case Discloser will have the right to assert to
the Texas Attorney General that such Confidential Information is confidential and that the City
should not be ordered to release such Confidential 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.
4. Excentions to Confidentialitv 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.
Non -Disclosure Agreement Between Ryan, LLC and City of Fort Worth Page 2 of 5
5. 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 2 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.
6. 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.
7. 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.
8. 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 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.
9. 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.
10. 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.
Non -Disclosure Agreement Between Ryan, LLC and City of Fort Worth Page 3 of 5
11. 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.
12. 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.
13. Governmental Powers. By execution of this Agreement, the City does not waive or
surrender any of its governmental powers or immunities.
(Signature page follows)
Non -Disclosure Agreement Between Ryan, LLC and City of Fort Worth Page 4 of 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly a thorized representatives.
CITY OF FORT WORTH
aonb
0
�s �°EORr�aaao
o°°_o g9ao
Pv= ^sd
aaab
By:
William Johnson (M y 10, 202415:51 CDT)
nEXa?ob
Name:
William Johnson
Title:
Assistant City Manager
APPROVED AS TO FORM AND LEGALITY
By:
Name: John B. Strong
Title: Senior Assistant City Attorney
Attested:
By:
Name: Jannette Goodall
Title: City Secretary
DISCLOSER
By: '�V
Name: 4aron Roberts
Title: Principal
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Non -Disclosure Agreement Between Ryan, LLC and City of Fort Worth Page 5 of 5