9-NDA Agreement.docx

Non-Disclosure Agreement Relating to Solicitation [number and title]

This Agreement, entered into as of the date provided on the signature page (“Effective Date”), governs the disclosure of certain confidential information related to a procurement solicitation by Indian River County, with offices at 1800 27th Street, Vero Beach, FL 32960 (“County”), to with offices at (“Receiving Party”).

WHEREAS, Chapter 119 Florida Statutes establishes policies related to Public Records, to include exemptions from release; and, WHEREAS, the County has issued (the “Solicitation”) which contains “Confidential Information,” per the marked section(s):

§ 119.071(3)(a) Security and Firesafety Plans § 119.071(3)(b) Plans depicting internal layout or structural elements of a building, arena, stadium, water treatment facility, or other structure owned and operated by County § 119.071(3)(c) Plans held by County depicting internal layout or structural elements of an attractions and recreation facility, entertainment or resort complex, industrial complex, retail and service development, office development, health care facility, or hotel or motel development § 119.071(3)(d) Information relating to the Nationwide Public Safety Broadband Network § 119.0725(1)(b) Information relating to Critical Infrastructure § 119.0725(2) Information relating to Cybersecurity

WHEREAS, Receiving Party, in order to effectively provide a response to the Solicitation and, if awarded a contract, will be working with the County, either alone or with County employees or contractors, and will be provided, and will have access to the Confidential Information; and

WHEREAS, County has the right and obligation to protect its Confidential Information, due to the Florida laws cited herein; and

WHEREAS, the Receiving Party acknowledges the County’s obligation and agrees to the terms of this Non-Disclosure Agreement.

Now therefore, the Parties agree as follows:

ARTICLE 1. DEFINITION OF CONFIDENTIAL INFORMATION

1.1 The Confidential Information shall include, and be defined as set forth in the Whereas clauses to this Agreement, and the corresponding Florida Statutes. The portions of the solicitation containing Confidential Information are:

Full Plan set

ARTICLE 2. DISCLOSURE OF CONFIDENTIAL INFORMATION

2.1 To permit the Receiving Party to respond to the County’s Solicitation, and, if the Receiving Party is awarded a contract, to allow the Receiving Party to perform its contractual obligations, the County will be disclosing Confidential Information to the Receiving Party. The Receiving Party shall: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents, subconsultants, or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the Parties to which the County’s Solicitation relates, and only for those purposes; (b) advise its Representatives of the confidential and exempt nature of the Confidential Information under Florida law, and of the corresponding obligations set forth in this Agreement, and shall require such Representatives to keep the Confidential Information confidential; (c) keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties, except as otherwise provided for in Article 4 below.

2.2 Regardless of whether Receiving Party represents a larger company, sole proprietor, individual contractor, or any other person working for the County, compensated or uncompensated, the Receiving Party will abide by all the requirements of this Agreement, and will ensure that all Confidential Information is protected and not disclosed to any other person without the express written consent of the County.

2.3 Receiving Party shall be responsible for any breach of this Agreement by any of their respective Representatives.

ARTICLE 3. USE OF CONFIDENTIAL INFORMATION

3.1 The Receiving Party agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the Parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the County. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Receiving Party hereunder. Title to the Confidential Information will remain solely in the County. All use of Confidential Information by the Receiving Party shall be for the benefit of the County and any modifications and improvements thereof by the Receiving Party shall be the sole property of the County.

ARTICLE 4. COMPELLED DISCLOSURE OF CONFIDENTIAL INFORMATION

4.1 Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or statutory requirement, provided that the Receiving Party promptly notifies the County in writing of such demand for disclosure so that the County, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to the Receiving Party’s business (not targeted at County), the Receiving Party may promptly comply with such request provided the Receiving Party give (if permitted by such regulator) the County prompt notice of such disclosure. The Receiving Party agrees that it shall not oppose and shall cooperate with efforts by the County with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the County is unable to obtain or does not seek a protective order and the Receiving Party is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information shall be limited to that which is legally required to be disclosed and may then be made without liability.

ARTICLE 5. NOTIFICATION OF UNAUTHORIZED DISCLOSURE

5.1 Receiving Party shall notify the County promptly upon its discovery of any unauthorized, or known potentially unauthorized, use or disclosure of Confidential Information by Receiving Party or its Representatives, and will cooperate with efforts by the County to help the County regain possession of Confidential Information and prevent its further unauthorized use.

ARTICLE 6. TERM

6.1 This Agreement shall remain in effect for five (5) years from the Effective Date. However, the Receiving Party’s duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely, or until Receiving Party returns all physical and electronic copies of Confidential Information to the County, after which this duty will cease.

ARTICLE 7. REMEDIES

7.1 Receiving Party acknowledges that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to County that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, Receiving Party hereby agrees that the County shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The County shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief.

7.2 The Receiving Party shall indemnify and defend the County against cost, fines, penalties, or any civil or criminal action resulting from Receiving Party’s unauthorized disclosure of Confidential Information. The Receiving Party will be solely responsible for all harm or liability caused to the County or other parties resulting from the unauthorized disclosure of Confidential Information.

ARTICLE 8. RETURN OF CONFIDENTIAL INFORMATION

8.1 Receiving Party shall immediately return and redeliver to the County all tangible material embodying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (“Notes”), and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the termination of the Solicitation (if Receiving Party is not awarded a contract), or upon the termination of the Receiving Party’s contract awarded pursuant to the Solicitation; provided, however, that the Receiving Party may retain such of its documents as is necessary to enable it to comply with its document retention policies and to perform any obligations under its contract with the County, including honoring any warranty periods and work. Alternatively, the Receiving Party, with the written consent of the County may immediately destroy any of the foregoing embodying Confidential Information (or the reasonably non-recoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Receiving Party supervising the destruction.

ARTICLE 9. MISCELLANEOUS

9.1 This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the Parties, with respect to the subject matter hereof. This Agreement can only be modified by a written amendment signed by the Party against whom enforcement of such modification is sought.

9.2 The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of the State of Florida applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof.

9.3 This Agreement shall be governed by, and construed under, the laws of the State of Florida without regard to its choice of law provisions and venue shall lie in the courts in Indian River County, Florida.

9.4 Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.

9.5 Although the restrictions contained in this Agreement are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.

9.6 Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.

9.7 This Agreement is personal in nature, and neither Party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of the other Party, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the Parties to this Agreement and their respective successors, assigns and designees.

9.8 The receipt of Confidential Information pursuant to this Agreement will not prevent or in any way limit either party from: (i) developing, making or marketing products or services that are or may be competitive with the products or services of the other; or (ii) providing products or services to others who compete with the other.

9.9 The provision of Confidential Information by the County does not guarantee the Receiving Party the right to contract with the County. The County’s procurement rules and procedures shall govern the vendor selection process.

IN WITNESS WHEREOF, a duly authorized and validly existing representative of each Party has affixed his or her respective signature hereto.

Receiving Party:

General Contractor Name:

By: ________________________ (Signature)**

Typed Name:

Title:

Address:

Phone:

Email address plans link should be sent to (only one email address will be granted access):

FL Contractor License Number:

**Must be signed by an officer of the Receiving Party, and evidence of authorization to bind the firm/contractor must be attached**

(Indian River) County:

By:

Effective Date:

Send completed NDA and supporting documentation to purchasing@indianriver.gov When approved, you will receive a fully executed copy of the NDA, and a separate email from Bonfire with link to the confidential documents.

1 Solicitation Number