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HomeMy WebLinkAbout548882 CEC SOLAR #1038 LLC - CONTRACT - RFP - 7556 COMMUNITY SOLAR GARDEN (2)MUTUAL NON -DISCLOSURE AGREEMENT This Non-Discloaure Agreement (the "Agreement) is made this 8's day of January, 2014, shall be become effective upon the signed delivery to the Clean Energy Collective (the "Effective Date") of this Agreement by and between the Clean Energy Collective, LLC, located at 401 Tree Farm Drive, Carbondale, CID 81623 and the City of Fort Collins, Utilities Department CTCD") located at 700 Wood Street, Fort Collins, CO 80521. For purposes of this Agreement, the terms "Receiving Party" and "Disclosing Party' shall include the party's agents, employees and representatives. In the course of their dealings with each other and in order to engage in discussions and exchanges of information relating to the business and products of both parties, including but not Ifmited to discussions of related technical and business initiatives, to determine whether the parties wish to enter into a business relationship for their mutual benefit ("Business Purpose"), the undersigned parties may, from time to time, disclose certain technical, business and other information, some of which may be Confidential Information, as that term is later defined in this Agreement. The parties hereby desire to establish and set forth theft mutual obligations with respect to the use and disclosure of such Confidential Information. In consideration of the mutual disclosures, promises and obligations contemplated herein, the parties agree as follows: "Confidential Information" means airy company proprietary information, technical data or trade secrets or know-how, including but not hafted to business models, product plane, products, customer technical requirements, software, programming techniques, services, suppliers, supplier lists, customers, customer lists, customer technical requirements, markets, developments, inventions, processes, business structures, technology, designs, drawings, engineering, apparatus, techniques, hardware configuration information, forecasts, business strategy, or finances disclosed and identified by the parties as being Confidential Information, in writing, orally (with written confirmation of the orally disclosed content provided at the time of such disclosure or within three (3) business days thereafter) or by drawings or inspection of samples, parts or equipment. II. Notwithstanding the foregoing, 'Confidential Information" shall not include information or disclosure that the Receiving Party can demonstrate: A. Is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available to the public; B. Was known by the Receiving Party before receiving such Confidential Information from the Disclosing Party, and is known by Receiving Party Independently of it involvement with the Business Purpose; C Is received from a third party without restriction on disclosure and for which Receiving Party is unaware of any restriction on disclosure, except In the case of customer contracts; D. Is independently developed by the Receiving Party without use of or reference to the Confidential Information by persons who had no access to the Confidential Information; E. Was authorized for disclosure by the Disclosing Party. III. The Confidential Information shall be used solely for the Business Purpose and shall not be used for any other purpose. All Confidential Information supplied by a party, unless otherwise agreed to in writing, shall remain the property of the Disclosing Party. IV. Each party agrees: A. To hold the other parry's Confidential information in strict confidence subject to the terms of this Agreement; B. Not to disclose such Confidential Information to any third party, except as specifically authorized herein or as specifically authorized by the other party in writing; C. Not to disclose the nature of discussions or the proposed business relationship between the parties or of any of the terns and conditions contained herein without the prior written consent of the other party; D. To use all reasonable precautions to prevent the unauthorized disclosure of the other parry's Confidential Information; E. Not to use any Confidential Information for any purpose other than to carry out the Business Purpose specfc to the Disclosing Party. - V. Each party may only disclose the other parry's Confidential Information to its responsible employees and consultants who have a "need -to -know' such Confidential Information in order to carry out the Business Purpose, only if such persons are advised of the confidential nature of the disclosure and are bound by written agreement or by legally enforceable code of professional responsibility to protect against the disclosure of the Confidential Information, and in the case of non -employees, only upon specific written convent of the Disclosing Party, which is not provided for herein. VI. Each party may disclose the other party's Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the Receiving party uses reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment and provides the Disclosing Party a reasonable opportunity to review the disclosure befine it is made and to interpose its own objection to the disclosure. VE. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, CDMPf.ETENESS OR PERFORMANCE. VIE. Upon the request of the Disclosing Party, the Receiving Party will promptly remrnto the Disclosing Party all copies of the Confidential Information, will destroy all notes, abstracts and other documents that contain Confidential Information, and will provide to the Disclosing Party a written certification of an officer of the Receiving Party that it has done so. DC Nothing in this Agreement shall be construed as granting any property or other rights (express or implied) to the Receiving Party, by license or otherwise, to any of the Disclosing Parry's Confidential Information, except as specifically stated herein The parties acknowledge that the City of Fort Collins is an entity subject to the Colorado Open Records Act In order to ensure that the Clean Energy Collective's Confidential Information is protected, the parties hereby agree that Clean Energy Collective's Confidential Information, as designated herein, fs provided to the City in reliance on this Agreement, and may constitute the trade secrets of Clean Energy Collective, independently protected by state and federal law. In the event that the City of Port Collins shall receive a request from any person to disclose any public record containing Confidential Information obtained from Clean Energy Collective, then the City of Fort Collins shall (a) promptly notify Clean Energy Pegs 2 Collective in writing of the existence, terms and circumstances of such request, so that Clean Energy Collective may seek any appropriate protective order, and (b) subject to Clean Energy Collective's timely action based on the notice provided in (a), cooperate with Clean Energy Collective to seek whatever order or assurance is necessary to ensure that all portions of such information which are the trade secrets of, or the proprietary, privileged and confidential commercial and fnr nclal information of, Clean Energy Collective, will be treated as such. For purposes of this paragraph IX, "timely action" by clean energy Collective shall mean within three (3) business days of the date on the notice provided by the City pursuant to (a) above. X. Each party acknowledges that the covenants and agreements made in this Agreement are reasonable and are required for the reasonable protection of the parties and that the unauthorized use or disclosure of the other party's Confidential Information would cause irreparable harm to the other party. Accordingly, each party agrees that the other party will have the right to obtain an immediate injunction against any breach or threatened breach of this Agreement and to enjoin the other party from engaging in any activity in violation hereof, to enforce the specific performance obligations hereunder; and that no claim by the party against the other party or its successors or assigns will constitute a defense or bar to the specific enforcement of such obligations, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach. The prevailing party in any such action shall be entitled to recover, in addition to the relief granted, the costs and expenses of enforcement, including reasonable attorney's fees. XI. In addition to the protections provided to the parties herein, the parties agree that any contracts or materials provided by Clean Energy Collective are, and shall remain, the sole intellectual property of the Clean Energy Collective and will not be duplicated, modified or used outside of their intended Clean Energy Collective use. Irrespective of this ownership, the parties acknowledge and accept that such contracts and materials may be subject to disclosure under the Colorado Open Records Act, and so long as such disclosure is in compliance with Section IX above, the City shall have no liaiblity for such disclosure, XII. This Agreement shall apply to all Confidential Information disclosed by one party be the other party on or after the Effective Date. The mutual obligations contained in this Agreement will mmahr in effect for the longer of two (2) years after the date of the last disclosure of Confidential Information hereunder or as long as any such information remains confidential, at which time this Agreement will terminate. As to specific Confidential Information which loses its confidential status, this Agreement shall terminate as to that Confidential hnfonnation at that time. XIII. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. XIV. This Agreement constitutes the complete and exclusive understanding reached between the parties with reference to the subject matter herein and supersedes all prior communications and agreements, whether oral or written. The terms and conditions set forth herein shall be modified, replaced, assigned or rescinded only in writing and signed by a duly authorized representative of each party. If one or more of the provisions in this Agreement are deemed void by law, the remaining provisions will continue in full force and effect. This Agreement will be construed and enforced according to the laws of the State of Colorado, U.S.A. without applicationof the principles of conflict of laws. This Agreement is not, however, intended to limit any rights that the parties may have under trade secret, copyright or patent laws which may apply to the subject matter of this Agreement both during and after the term of this Agreement Ps, 3 Agreed: for: Clean Energy Collective, LLC Paul Spencer t. 2014.01.08 20;12;58-07'00' Authorized Signature Paul Spencer Printed Name President Title for. Ci ort n U Department Au prized Signature GerryPaul Printed Name Director of Purchasing & Risk Mgt Title Date PW4 PROPOSAL NO. 7556 COMMUNITY SOLAR GARDEN FIRMS RESPONDING TO REQUEST: NO RESPONSES: Clean Energy Collective WRITTEN EVALUATION COMMITTEE: ORAL EVALUATION COMMITTEE Pat Johnson Norm Weaver SAME Gerry Paul Tracy Brann FIRMS SELECTED FOR INTERVIEW: INTERVIEW DATE: Clean Energy Collective 12/4/13 @ 12:00 PM WRITTEN EVALUATION TOTAL POINTS Clean Energy Collective 195 ORAL EVALUATION: TOTAL POINTS Clean Energy Collective Clean Energy Collective