Attachment D - City of Fredericksburg Nondisclosure and Confidentiality Agreement.pdf

ATTACHMENT E

City of Fredericksburg

Nondisclosure and Confidentiality Agreement This form must be returned as a prerequisite to access Attachments A, B, and C. See Page

2 for details.

This NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into this ______day of _________, ____, by and between the City of Fredericksburg, a Virginia municipal corporation (hereinafter “City”), and ______________________________, (the “Business Associate”).

RECITALS

A. The Business Associate is being considered by the City to perform certain services on its behalf, specifically, Renovations to the City of Fredericksburg Courthouse located at 701 Princess Anne Street, Fredericksburg, Va 22401 (“Courthouse”) in accordance with City of Fredericksburg Solicitation # 27-0011.

B. In connection with the Business Associate’s provision of services, it will have access to sensitive, confidential, important, and/or proprietary information (as defined below).

C. No portion of Business Associate’s provision of services requires the capture, acquisition, use, or dissemination of any of the City’s information.

D. City wishes to provide for the confidentiality of the City’s information which may include security access information and secure facility records the disclosure of which would jeopardize the safety and security of a court building and it occupants pursuant to Virginia Code § 2.2-3705.2(3)&(14).

E. Business Associate agrees to these terms as a condition to receiving the plans and specifications for the purposes of potentially bidder to perform services for the City.

AGREEMENT

THEREFORE, in consideration of the foregoing, and in consideration of the opportunity to bid to perform the services referenced above, the Business Associate agrees as follows.

1. Definitions. For purposes of this Agreement,

a. “Confidential Information” will include:

i. Specifications relating to the renovations of the Courthouse

ii. Drawings and Architectural Plans, including plan details and notes, relating to the renovations of the Courthouse

iii. Security measures relating to the renovations of the Courthouse

iv. Any and all information regarding the internal affairs, policies, and procedures of the Courthouse and its employees and constituents

b. “Business Associate” will include the Business Associate and all successors and assigns, affiliates, subsidiaries (as applicable), and any potential or actual subcontractors or suppliers of the Business Associate communicated with in submitting or contemplating a bid.

c. “Representative” will include the Business Associate’s managing members (as applicable), trustees, general partners (as applicable), and financial and legal advisors. The term includes the officers, employees, agents, suppliers, and contractors of the Business Associate and all persons who have access to Confidential Information by or through the Business Associate.

2. Confidentiality. At all times, both during and after the termination of its relationship with the City for any reason, the Business Associate and its Representatives will not obtain, retrieve, intercept, acquire, copy, download, use, disclose, or give others any of the Confidential Information in any manner whatsoever, except to the limited extent reasonably necessary to solicit or confer with potential or actual subcontractors and suppliers, and will hold and maintain the Confidential Information in strictest confidence. The Business Associate will ensure that all proper safeguards are in place to prevent the use or disclosure of the Confidential Information. The foregoing recitals are incorporated by reference herein.

3. Indemnity. The Business Associate hereby agrees to indemnify the City against any and all losses, damages, claims, expenses, and attorneys’ fees incurred or suffered by the City as a result of a breach of this Agreement by the Business Associate or its Representatives.

4. Protection. The Business Associate will be responsible for any breach of this

Agreement by any of his/her/its Representatives and will, at his/her/its sole expense, take all necessary measures (including but not limited to court proceedings) to restrain his/her/its Representatives from prohibited disclosure or use of the Confidential Information.

5. Irreparable Harm. The Business Associate understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of the Agreement may cause the City irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that the City will have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as the City will deem appropriate. Such right of the City is to be in addition to the remedies otherwise available to the City at law or in equity. The Business Associate expressly waives the defense that a remedy in damages will be adequate and any requirement in an action for specific performance or injunction for the posting of a bond by the City.

6. Survival. This agreement will continue in full force and effect even after the conclusion of procurement activity by the City.

7. Successors and Assigns. This agreement and each party’s obligations hereunder will be binding on the representatives, assigns, and successors of such party and will inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of the Business Associate hereunder are not assignable.

8. No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, will operate as a waiver of any such right, power or remedy of the party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, will preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto will not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement will entitle the party receiving such notice or demand to any other notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving notice or demand. The terms and provisions of this Agreement may be waived, or consent for the departure there from granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent will be deemed to be or will constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver or consent.

9. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia. The exclusive jurisdiction for any claims arising from this agreement is the Fredericksburg Circuit Court.

10. Attorneys’ Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action will be entitled to reimbursement for reasonable attorney’s fees and costs.

11. Counterparts. This Agreement may be signed in counterparts, which together will constitute one agreement.

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives or officers, effective as of the date first listed above in the preamble to this Agreement.

Business Associate:

Signature

By: (SEAL)

Title:

Date:

City of Fredericksburg:

L. Josh McCormack, Procurement Manager