Treatment Pumping and Transmission RSOQ 2027-003 NDA.pdf

Treatment, Pumping, and Transmission On-Call Professional Services Confidentiality and Non-Disclosure Agreement Solicitation No. TVWD RSOQ 2027-003 Page 1 of 4

TUALATIN VALLEY WATER DISTRICT

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This Confidentiality and Non-Disclosure Agreement (“Agreement”) is made by the firm identified on the signature page (“Recipient”) for the benefit of Tualatin Valley Water District (the “District”), as the Managing Agency for and on behalf of the Willamette Water Supply System (WWSS). It is effective when the Recipient signs it and covers all Restricted Information made available in connection with TVWD Solicitation No. RSOQ 2027-003 (the “RSOQ”), whether before or after signing.

Background. The RSOQ is for the purpose of awarding Umbrella Contracts for on-call Professional Services related to WWSS Treatment, Pumping, and Transmission operations (the “Project”). The Project is public drinking water infrastructure. Some Project information, if disclosed, could compromise the safety, security, or operation of the Project. The District will make that information available to firms solely to prepare Statements of Qualifications (“SOQs”), on these terms. The District is a public body and this Agreement is to be read consistently with the Oregon Public Contracting Code and Public Records Law.

1. DEFINITIONS

1.1 “Data Room” means the secure repository or other access-controlled method the District uses to provide Restricted Information.

1.2 “Permitted Purpose” means deciding whether to submit, and preparing and submitting, an SOQ, and participating in any evaluation, interview, or negotiation under the RSOQ.

1.3 “Representatives” are Recipient’s employees, and the employees of its subconsultants and teaming partners, who need access for the Permitted Purpose and whose names Recipient has given the District.

1.4 “Restricted Information” means non-public information, in any form (including oral information and what Recipient observes at a pre-offer conference or site visit), about the Project that the District, its partner agencies, or their consultants make available to Recipient in connection with the RSOQ and that is marked confidential or restricted, is provided through the Data Room, or a reasonable person would understand to be confidential. It includes notes, analyses, and other materials that contain or are derived from it. It does not include portions of the RSOQ, addenda, or anything the District publishes without restriction.

1.5 “Security-Sensitive Information” is Restricted Information that discloses or could be used to determine: the location, configuration, design, capacity, or operation of critical Project or water system components (including treatment processes, chemical systems, electrical, controls and SCADA, and information or operational technology networks); security measures or their weaknesses; vulnerability, risk, or resilience assessments; or any other information described in ORS 192.345(22) or (23), or that the District designates in writing as Security-Sensitive.

2. USE AND DISCLOSURE

2.1 Recipient shall use Restricted Information only for the Permitted Purpose, and shall not disclose it to anyone other than its Representatives without the District’s prior written consent. Recipient shall not use it for any other bid, procurement, or business development, or make any public statement about it or about the security of the Project or the District’s water system.

2.2 The Recipient is responsible for its Representatives’ compliance. Before giving Restricted Information to a subconsultant or teaming partner, the Recipient shall bind it in writing to confidentiality obligations at least as protective as this Agreement.

Treatment, Pumping, and Transmission On-Call Professional Services Confidentiality and Non-Disclosure Agreement Solicitation No. TVWD RSOQ 2027-003 Page 2 of 4

3. SAFEGUARDS

3.1 Recipient shall protect Restricted Information with at least the care it uses for its own most sensitive information, and no less than reasonable care. Recipient shall follow the District’s Data Room rules and written handling instructions.

3.2 For Security-Sensitive Information, Recipient shall also (a) limit access to people who need it, (b) not print, download, or photograph it unless the Data Room or the District’s written instructions allow, and (c) not send it by unencrypted email or consumer file-sharing or messaging services.

3.3 Recipient shall not put Restricted Information into any artificial intelligence tool unless the tool does not retain the input, use it for training, or expose it to third parties. For Security-Sensitive Information, the District must approve the tool in writing first.

4. EXCLUSIONS

4.1 Restricted Information, other than Security-Sensitive Information, does not include information that

Recipient shows by written records (a) is or becomes public other than through Recipient’s or its Representatives’ breach; (b) Recipient lawfully knew, without a confidentiality obligation, before the District disclosed it; (c) Recipient lawfully receives from a third party free to disclose it; or (d) Recipient develops independently without using Restricted Information.

4.2 Security-Sensitive Information is released from this Agreement only when the District releases that specific information in writing. The public availability of individual elements does not release a compilation of them.

5. LEGAL PROCESS AND PUBLIC RECORDS

5.1 Legal process. If the Recipient is required by law, subpoena, or court order to disclose Restricted

Information, it shall promptly (and where lawful before disclosing, and within two business days of the request) notify the District’s Contact, cooperate with the District’s effort to obtain protection, and disclose only what is legally required.

5.2 District’s records. The District is subject to the Oregon Public Records Law (ORS 192.311 to 192.478). It intends to assert applicable exemptions, including ORS 192.345(22) and (23), for Security-Sensitive Information, but it cannot guarantee that any record will be exempt, and some exemptions apply only unless the public interest requires disclosure. The District, not Recipient, decides whether a record is exempt and responds to public records requests. If Recipient receives a public records request for Restricted Information, it shall refer the requester to the District and notify the District’s Contact. A disclosure the District makes under law is not a breach by Recipient, and Recipient has no liability for it.

5.3 Recipient’s SOQ. Recipient’s SOQ is not Restricted Information. Its public-records treatment is governed by the RSOQ and Section 11 of the District’s Local Contract Review Board Rules (“LCRB Rules”). Recipient shall include Restricted Information in its SOQ only to the minimum extent necessary and shall clearly identify and separate it.

6. NO WARRANTY; NO COMMITMENT

6.1 Restricted Information is provided “as is” for information only. The District and its partners and consultants make no representation about its accuracy or completeness. Locations, measurements, and existing conditions must be verified in the field. Recipient shall not rely on Restricted Information as the basis for any claim for additional compensation or time under any resulting contract, except as that contract expressly provides.

6.2 This Agreement does not obligate the District to include the Recipient on any list of qualified firms, award any contract, or continue the RSOQ. The Recipient bears its own costs. The District may

Treatment, Pumping, and Transmission On-Call Professional Services Confidentiality and Non-Disclosure Agreement Solicitation No. TVWD RSOQ 2027-003 Page 3 of 4 withhold, limit, or revoke access to any Restricted Information or person at any time for security or procurement-integrity reasons.

7. UNAUTHORIZED DISCLOSURE

Recipient shall notify the District’s Contact promptly, and no later than 24 hours, after it discovers or reasonably suspects any unauthorized access to, use of, disclosure of, or loss of Restricted Information (including a cybersecurity incident affecting a system holding Security-Sensitive Information), take immediate steps to contain it, and cooperate with the District’s response.

8. RETURN AND DESTRUCTION

8.1 Within 10 calendar days after the District’s written request, the District’s notice that the Recipient was not selected or the RSOQ was canceled, or the Recipient’s withdrawal from the RSOQ, the Recipient shall return or securely destroy all Restricted Information in every form and location, and an officer shall confirm this to the District’s Contact by email.

8.2 Recipient may retain (a) one archival copy of its SOQ as submitted, and (b) Restricted Information other than Security-Sensitive Information to the extent a law or bona fide records-retention requirement requires, and in routine backups until overwritten in the ordinary course. Recipient shall not retain Security-Sensitive Information except as law requires, and shall say so in its confirmation. Anything retained remains subject to this Agreement.

9. DURATION

This Agreement is effective when the Recipient signs it. Recipient’s obligations continue for as long as the information remains non-public, or until the District releases it in writing. Sections 5, 6, 8, 9, 10, and 11 survive the RSOQ and any return or destruction of Restricted Information.

10. REMEDIES

10.1 Unauthorized use or disclosure of Restricted Information, especially Security-Sensitive

Information, may cause harm that money damages cannot remedy. The District may seek injunctive relief and specific performance, and any other remedy at law or in equity. Recipient is liable for damages caused by its or its Representatives’ breach.

10.2 A breach may result in rejection of the Recipient’s SOQ, removal from any resulting list of qualified firms or umbrella contract, and disqualification from District solicitations under the LCRB Rules (including Section 6.31).

10.3 Nothing in this Agreement waives any immunity, defense, or limit on liability of the District or its commissioners, officers, employees, or agents, including under the Oregon Tort Claims Act (ORS

30.260 to 30.300), or requires the District to indemnify anyone.

11. GENERAL

11.1 Law and venue. Oregon law governs this Agreement. Any action arising from it shall be brought in the Circuit Court for Washington County, Oregon (or, if federal jurisdiction exists, the U.S. District Court for the District of Oregon).

11.2 Effect of signing. Recipient may not modify this Agreement. It binds the Recipient when signed by an individual with authority to bind it. The District’s countersignature is not required.

11.3 Relationship to the RSOQ and to later contracts. This Agreement is a requirement for access to the RSOQ. If the Recipient is later awarded an Umbrella Contract or Task Order, the confidentiality terms of that contract (including any District water system data use and

Treatment, Pumping, and Transmission On-Call Professional Services Confidentiality and Non-Disclosure Agreement Solicitation No. TVWD RSOQ 2027-003 Page 4 of 4 confidentiality agreement) govern data provided for that work. This Agreement continues to apply to information received under the RSOQ.

11.4 Other terms. Recipient may not assign this Agreement. It is the entire agreement on its subject and may be amended only in a writing signed by the Recipient and the District’s Public Contracting Officer or designee. If a provision is unenforceable, the rest remains in effect. Electronic signatures and counterparts are valid.

11.5 Notices. Notices to the District: Tualatin Valley Water District, Attn: Janet Fleshman, c/o bidsandproposals@tvwd.org, 1850 SW 170th Avenue, Beaverton, OR 97003 (the “District’s Contact”). Notices to Recipient go to the contact on the signature page. Email notice is effective when sent unless the sender receives a delivery-failure message.

RECIPIENT’S SIGNATURE

By signing, the Recipient agrees to be bound by this Agreement, and the signer represents that he or she has authority to bind the Recipient.

Firm legal name:

Authorized signature:

Printed name:

Title:

Date:

Email for notices:

Telephone:

ACCESS CONFIRMATION (District use only)

Access granted by:

Title:

Date:

mailto:bidsandproposals@tvwd.org