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HomeMy WebLinkAboutMendocino Solid Waste Management Authority 2011-07-25CONFIDENTIALITY AGREEMENT This Confidentiality Agreement ("Agreement") is entered on ~)42-5__ 2--5 2011 ("Effective Date"), by and between Michael Sweeney and the Mendocin County Solid Waste Management Authority ("Consultant"), an individual and a California joint powers agency, and the City of Ukiah ("City"), a California general law City. The City and the Consultant shall be collectively referred to as the "Parties." In consideration of the mutual promises contained herein, the Parties hereby agree as follows: 1. Definitions. For purposes of this Agreement the following terms shall have the following meanings: a. "Business License Files" means files maintained by the City on any person or entity that applies for a business license pursuant to Division 1, Chapter 1 of the Ukiah City Code, commencing with Section 2100. a. "Confidential Information" means all information and documents that are contained in Business License Files inspected by Consultant. "Confidential Information" does not include information that (i) becomes generally available to the public other than as a result of disclosure by the Consultant; (ii) was available on a nonconfidential basis to the Consultant prior to the Consultant's inspection of Business License Files maintained by the City, (iii) becomes available to the Consultant from a source other than the City; provided, such source is not bound by a confidentiality agreement with the City, or (iv) consists of aggregate gross sales totals in various categories of businesses that do not reveal the gross sales of any individual business. b. "Documents" means any and all printed, typewritten, handwritten, recorded or computerized information, including text, diagrammatic and graphic material, or other tangible representation or mode of expression, suitable for the manifestation, storage or communication of any idea, data or other information. 2. Use of Confidential Information. The Consultant agrees not to use any portion of the Confidential Information acquired by him in the course of inspecting Business License Files for any purpose other than to collect information for the purpose of calculating the number of paper bags and/or carry-out plastic bags that are used by the various categories of businesses in the City in connection with the preparation by Consultant of a draft Environmental Impact Report ("DEIR") for the adoption by the City of an ordinance to prohibit the use of carry-out plastic bags and related regulations. The Consultant further agrees not to make copies of the Confidential Information. The Consultant may, however, disclose calculations based on Confidential Information as required to prepare the DEIR or to respond to comments on the DEIR; provided, however, that such disclosure shall not report gross sales or other Confidential Information that July 25, 2011 1 can be associated with a particular business from the disclosed information. 3. Non-disclosure of Confidential Information. The Consultant agrees not to disclose any portion of the Confidential Information to any person other than the City and its legal counsel without the express written consent of the City. The Consultant further agrees to return or destroy all tangible materials embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) promptly following the City's written request, or termination of this Agreement. At the City's option, the Consultant shall provide written certification of his/her compliance with this Section. 4. Term. This Agreement shall continue in effect until terminated by mutual agreement of the Parties in writing. 5. Miscellaneous. a. Disclaimer. No rights, obligations, representations or terms other than those expressly recited herein are to be inferred from this Agreement. b. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. C. Attorne sy ' Fees. In case of any action or proceeding to compel compliance with, or for a breach of, any of the terms and conditions of this Agreement, the prevailing Party shall be entitled to recover from the losing Party all costs of such action or proceeding, including, but not limited to, reasonable attorneys' fees. d. Severability. If any provision of this Agreement, or any application thereof to any person or circumstances, shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by law. e. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties and supersedes any prior understandings and agreements between or among them respecting the subject matter contained herein. There are no representations or warranties, oral or written, expressed or implied, between or among the Parties hereby relating to the subject matter of this Agreement that are not fully expressed herein. f. Amendments. No alteration, amendment, change or addition to this Agreement shall be binding upon the Parties hereto unless reduced to writing and signed by both Parties. g. No Waiver. No delay or omission of either Party to exercise any right or hay 25, 2011 2 1 Y power shall impair any such right or power, or shall be construed to be a waiver of any nonperformance by the other Parry or an acquiescence therein. No waiver of any nonperformance shall be effective unless it is in writing. No written waiver by either Parry shall be deemed to be a waiver of any other Agreement provision, or of any subsequent breach by the other Parry of the same or any other provision. h. Headings. The headings of this Agreement are for the purpose of reference only and shall not limit or define the meaning of any provision of this Agreement. i. No Third Party Rights. Except as expressly provided herein, no provision of this Agreement is intended to or shall be for the benefit of any person not a parry hereto, and no such other person shall have any right or cause of action hereunder. All businesses in the City whose files are examined by Consultant shall be a third parry beneficiary of this Agreement with the right to enforce the agreement or seek damages or other remedies for its violation. j. Authority to Execute. Any individual executing this Agreement on behalf of a Parry represents and warrants that he/she is duly authorized to execute this Agreement on behalf of the Parry, and that this Agreement is binding upon the Parties in accordance with its terms. k. Impartial Interpretation. This Agreement shall be construed as a whole according to its fair meaning and not strictly for or against either Parry. 1. Venue. If any action has to be filed in any court to enforce the provisions of this Agreement, the parties expressly agree that the action shall be filed in the California state court in Mendocino County. This Agreement is entered into as of the date first written above. CONSULTANT CITY OF UKIAH By: Michael Sweeney Jane Chambers, City Manager Mendocino Solid Waste Management Author' L,- °a - By: July 25, 2011 3 CONFIDENTIALITY AGREEMENT This Confidentiality Agreement ("Agreement") is entered one. l 2011 ("Effective Date"), by and between Michael Sweeney and the Mendocino Solid Waste Management Authority ("Consultant"), an individual and a California joint powers agency, and the City of Ukiah ("City"), a California general law City. The City and the Consultant shall be collectively referred to as the "Parties." In consideration of the mutual promises contained herein, the Parties hereby agree as follows: 1. Definitions. For purposes of this Agreement the following terms shall have the following meanings: a. "Business License Files" means files maintained by the City on any person or entity that applies for a business license pursuant to Division 1, Chapter 1 of the Ukiah City Code, commencing with Section 2100. a. "Confidential Information" means all information and documents that are contained in Business License Files inspected by Consultant. "Confidential Information" does not include information that (i) becomes generally available to the public other than as a result of disclosure by the Consultant; (ii) was available on a nonconfidential basis to the Consultant prior to the Consultant's inspection of Business License Files maintained by the City, (iii) becomes available to the Consultant from a source other than the City; provided, such source is not bound by a confidentiality agreement with the City, or (iv) consists of aggregate gross sales totals in various categories of businesses that do not reveal the gross sales of any individual business. b. "Documents" means any and all printed, typewritten, handwritten, recorded or computerized information, including text, diagrammatic and graphic material, or other tangible representation or mode of expression, suitable for the manifestation, storage or communication of any idea, data or other information. 2. Use of Confidential Information. The Consultant agrees not to use any portion of the Confidential Information acquired by him in the course of inspecting Business License Files for any purpose other than to collect information for the purpose of calculating the number of paper bags and/or carry-out plastic bags that are used by the various categories of businesses in the City in connection with the preparation by Consultant of a draft Environmental Impact Report ("DEIR") for the adoption by the City of an ordinance to prohibit the use of carry-out plastic bags and related regulations. The Consultant further agrees not to make copies of the Confidential Information. The Consultant may, however, disclose calculations based on Confidential Information as required to prepare the DEIR or to respond to comments on the DEIR; provided, however, that such disclosure shall not report gross sales or other Confidential Information that July 25, 2011 can be associated with a particular business from the disclosed information. 3. Non-disclosure of Confidential Information. The Consultant agrees not to disclose any portion of the Confidential Information to any person other than the City and its legal counsel without the express written consent of the City. The Consultant further agrees to return or destroy all tangible materials embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) promptly following the City's written request, or termination of this Agreement. At the City's option, the Consultant shall provide written certification of his/her compliance with this Section. 4. Term. This Agreement shall continue in effect until terminated by mutual agreement of the Parties in writing. 5. Miscellaneous. a. Disclaimer. No rights, obligations, representations or terms other than those expressly recited herein are to be inferred from this Agreement. b. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. C. Attorneys' Fees. In case of any action or proceeding to compel compliance with, or for a breach of, any of the terms and conditions of this Agreement, the prevailing Parry shall be entitled to recover from the losing Party all costs of such action or proceeding, including, but not limited to, reasonable attorneys' fees. d. Severability. If any provision of this Agreement, or any application thereof to any person or circumstances, shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by law. e. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties and supersedes any prior understandings and agreements between or among them respecting the subject matter contained herein. There are no representations or warranties, oral or written, expressed or implied, between or among the Parties hereby relating to the subject matter of this Agreement that are not fully expressed herein. f. Amendments. No alteration, amendment, change or addition to this Agreement shall be binding upon the Parties hereto unless reduced to writing and signed by both Parties. g. No Waiver. No delay or omission of either Party to exercise any right or July 25, 2011 2 power shall impair any such right or power, or shall be construed to be a waiver of any nonperformance by the other Parry or an acquiescence therein. No waiver of any nonperformance shall be effective unless it is in writing. No written waiver by either Parry shall be deemed to be a waiver of any other Agreement provision, or of any subsequent breach by the other Parry of the same or any other provision. h. Headings. The headings of this Agreement are for the purpose of reference only and shall not limit or define the meaning of any provision of this Agreement. i. No Third Part~Rights. Except as expressly provided herein, no provision of this Agreement is intended to or shall be for the benefit of any person not a parry hereto, and no such other person shall have any right or cause of action hereunder. All businesses in the City whose files are examined by Consultant shall be a third parry beneficiary of this Agreement with the right to enforce the agreement or seek damages or other remedies for its violation. j. Authority to Execute. Any individual executing this Agreement on behalf of a Parry represents and warrants that he/she is duly authorized to execute this Agreement on behalf of the Parry, and that this Agreement is binding upon the Parties in accordance with its terms. k. Impartial Interpretation. This Agreement shall be construed as a whole according to its fair meaning and not strictly for or against either Parry. 1. Venue. If any action has to be filed in any court to enforce the provisions of this Agreement, the parties expressly agree that the action shall be filed in the California state court in Mendocino County. This Agreement is entered into as of the date first written above. CONSULTANT n1 (X R 9 01:: - fer Silva CITY OF UKIAH Mendocino Solid Waste Management Authority r l B Jane/Chambers, City Manager July 25, 2011 3