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2008/08/12 City Council Resolution 2008-130RESOLUTION NO. 2008-130 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING THE CITY MANAGER TO EXECUTE A CONFIDENTIAL NON- DISCLOSURE AGREEMENT WITH NISSAN NORTH AMERICA WHEREAS, the City Council has adopted greenhouse gas reduction goals and a climate action plan; and WHEREAS, the City's Climate Action Plan calls for the reduction of greenhouse gas emissions produced by its fleet; and WHEREAS, the use of an all electric vehicle is consistent with the City's Climate Action Plan and would assist the City in achieving its goals; and WHEREAS, Nissan North America has a prototype all electric vehicle and is seeking municipal users for this vehicle; and WHEREAS, in order to participate in the discussions to acquire an all electric vehicle, the City must execute a Non - Disclosure Agreement. NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Rohnert Park that the City Manager is authorized to execute a non - disclosure agreement with Nissan North America and the City Attorney is authorized to make non - substantive changes to the final agreement. DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park this 12th day of August 2008. CITY OF ROHNERT PARK May BREEZE: ABSENT SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE MACKENZIE: AYE AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0) CONFIDENTIAL NON - DISCLOSURE AGREEMENT THIS CONFIDENTIAL NON- DISCLOSURE AGREEMENT (the "Agreement's is made this day -of 2008 between NISSAN NORTH AMERICA, INC., a California corporation, for itself and its Affiliates ( "NNA "), having a principal place of business at 333 Commerce Street, Nashville, TN 37201; and the City of County of California (" 9, having a principal place of business at California In the course of dealings between NNA and (enter City and /or County name) in connection with the Project (as defined below), either party may learn or receive from the other • "Confidentia-I Information" as that .term is. defined below. NNA and wish to assure the confidentiality of certain nonpublic confidential and /or proprietary information and other materials which may be exchanged by the parties in connection with a Nissan project involving electric vehicles and the Connection Program -(the "Project "). The Project is a proposed partnership between Nissan and other parties to: educate the public-on zero emission mobility; encourage investment in green transportation technologies; and work with governments and private parties to deploy the infrastructure necessary to support sustainable mobility. The party providing such Confidential Information is hereafter referred to as the "Disclosing Party," and the party receiving such information )s hereafter referred to as the "Recipient." NNA and desire to establish and set forth certain obligations with. respect to the Confidential Information of either party. In consideration of the foregoing, NNA and agree as follows: 1. Confidential Information and Materials (a) "Confidential Information" means nonpublic information that the Disclosing Party designates as being confidential or which, under the circumstances surrounding disclosure. ' should be reasonably known .to the Recipient to be confidential. "Confidential Information" includes, without limitation, information, tangible, or intangible, relating to Disclosing Party current and future products (including, Without limitation, Nissan and Infiniti vehicles, vehicle systems and parts); product plans, technology, research, specifications for vehicles or parts, finances, computer systems, hardware, networks, software, screens, advertising or market research, marketing strategies, marketing techniques or plans, business plans, strategies'or practices, designs;.. plans,' drawings, data, algorithms, laboratories,. prototypes, discoveries, research,. developments, methods, processes, procedures, improvements, "know -how," compilations, customer names and other information related to customers, price lists, pricing policies and financial, business, technical and other information and materials disclosed or made available to the Recipient during the Project and information received from others that Disclosing Party is obligated to treat as confidential. The Confidential Information shall include all of the preceding information whether disclosed in written, oral, demonstrative, graphic, electronic or machine- readable form or by -any other media, Confidential Information disclosed to Recipient by any Disclosing Party Affiliates (as defined below) and /or agents is covered by this Agreement. The fact that discussions or negotiations are taking place concerning the Project or services being supplied by Recipient in connection therewith, including the status or termination thereof, and the terms, conditions or other facts with respect to any such Project will be deemed to be Confidential Information subject to this Agreement. (b) Confidential Information shall not include any information that (I) is or subsequently becomes publicly available without Recipient's breach of any obligation owed to Disclosing Party; (ii) became known to Recipient prior to Disclosing Party's disclosure of such information to Recipient; (iii) became known to Recipient from a source other than Disclosing Party other. than by the breach of an obligation of confidentiality owed to . Disclosing Party; or (iv) is independently developed by Recipient. (c) " Affiliate" means with respect to a party, any entity that, directly or indirectly, is controlled by, controls or is under common control with a party. "Control" for this .purpose shall mean the possession, directly or indirectly, of the power to direct .or cause the direction of its management or policies, - whether through the ownership of a majority of the voting securities, by contractor otherwise. For purposes of this Agreement, the term "Affiliate" when applied to NNA shall also include the following: Nissan Motor Co., Ltd., Renault- Nissan B.V.; Renault -s.a.s; Renault Nissan Purchasing Organization s.a.s.; Nissan- Infiniti LT; and their respective Affiliates. 2. Restrictions (a) Recipient shall not disclose any Confidential Information to.any third party for a period of five (S) years from and after the date Disclosing Party discloses such Confidential Information to Recipient, except to Recipient's employees, subcontractors, directors and Affiliates as provided below. However, Recipient may disclose Confidential Information in accordance with a judicial or other governmental order, provided Recipient gives Disclosing Party reasonable notice prior. to such disclosure so that Disclosing Party may seek a protective order or other appropriate remedy. Recipient shall comply with any applicable protective order or equivalent. In the event that no protective order or other remedy is obtained, the Recipient shall. furnish only that portion of the Confidential Information that it is Legally required to disclose. (b) Recipient shall use the same degree of diligence and effort to protect such Confidential Information from disclosure -to third parties as Recipient uses to protect its own confidential information, but in no event shall Recipient- use less than reasonable and . customary diligence and effort in protecting such Confidential Information. Recipient may disclose Confidential Information only to Recipient's employees, subcontractors, directors -or employees of Affiliates who have a business - related need -to -know in furtherance of the objectives of the Project and who agree in writing (e.g. as a condition to employment or otherwise) to be bound by terms protecting the use and nondisclosure of - Confidential .Information at least as comprehensive as the terms of this Agreement; provided, however, that Recipient shall not disclose Confidential Information to any such subcontractor, director or Affiliate that is an indirect or direct competitor of Disclosing Party. (c) Confidential Information may be used by Recipient only in furtherance of the objectives of the Project in accordance with the terms and conditions of this Agreement. 3. Rights and Remedies (a) Recipient shall notify Disclosing Party immediately upon discovery of any unauthorized use,or disclosure of Confidential Information or any other breach of this Agreement by Recipient, and cooperate with. Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use. (b) Neither party shall make any copies of Confidential Information except as necessary to perform the Project. Upon expiration or termination of this Agreement . -2- or at any other time upon the written request of Disclosing Party, Recipient shall, at its own expense, promptly return to Disclosing Party or destroy ail originals and copies of the * writings and hardware in its possession which contain Confidential Information; provided however, the Recipient may retain an archival copy of the Disclosing Party's Confidential Information in the possession of its legal. counsel. for use solely in the event a dispute arises hereunder and only In connection with such dispute. If-the legal counsel maintaining the archival copy are not employees of Recipient. subject to a written agreement protecting the use and nondisclosure of Confidential Information as contemplated by Section 2(b) above, such legal counsel shall agree in writing to be bound by terms protecting the use and nondisclosure of Confidential Information consistent with the terms of this Agreement. If any writing or hardware has been destroyed, an adequate response to a return request therefor by the 'Disclosing Party.will be written notice, executed by the Recipient, that such writing or hardware has been destroyed. (d) Recipient acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that- Disclosing Party shall be entitled, without waiving any other. rights or remedies, to such injunctive or equitable relief 'as may be deemed proper by a court of competent jurisdiction. 4. Termination. Either party may terminate this Agreement upon thirty (30) days prior ` written' notice to the other party. All sections of this Agreement relating to the rights and obl -igations of the-parties concerning Confidential Information that is disclosed to the Recipient during the term of this Agreement shall survive any such termination.. 5. Miscellaneous (a) All Confidential Information is and shall remain the exclusive property of 'Disclosing Party. Recipient agrees that Confidential Information disclosed hereunder Is being received subject to the Disclosing Party's ownership rights in such Confidential Information -and, further, subject to all relevant intellectual property and /6r proprietary property rights of Disclosing Party, including the relevant laws governing patents, trademarks, .copyrights, trade secrets and unfair competition. (b) ALL CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER IS PROVIDED "AS IS ". -Neither Disclosing Party nor any of its Affiliates makes any representation or warranty as to 'tile accuracy or completeness of 'any Confidential Information. Recipient agrees- that neither Disclosing .Party nor'any of its Affiliates shall have any liability to the * Recipient or its Affiliates resulting from the use of the Confidential Information. (c) The terms of confidentiality under this.Agreement shall not be construed-to limit either party's right to independently develop or acquire products without use of the other party's Confidential Information. .(d) Nothing herein. shall be construed to grant to either party a license, express or implied, to or, under the other party's copyrights, trademarks, patents, trade secrets or other intellectual property. Further, nothing herein shall be construed to impose any financial commitment or purchase obligation on either party with respect to the subject matter hereof. (e) Each party acknowledges that Confidential Information which it receives may include technical data developed in the United States, and therefore, shall not export or re- export any Confidential Information without full compliance with all applicable export-laws. -3- (f) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a* written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, its agents, or employees, but only by an instrument in writing signed by 'an authorized representative of Disclosing Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion., (g) This Agreement shall be construed and controlled by the Internal laws of the State of California, without reference to its choice of law rules. Any action brought to enforce this Agreement shall be brought in state or federal court In California. (h) Subject to the limitations set forth in this Agreement; this Agreement will • inure to the benefit of and be binding upon the parties, their successors and assigns. (1) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, Invalid or unenforceable, the. remaining provisions shall remain in full force and effect. (j) This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form, any such entity relationship or entity. Each -party will act as an independent contractor and not as an agent. of the other .party for any purpose, and neither will have the authority to bind the other by virtue of this Agreement. (k) Any failure by.either party to enforce the other party's strict performance of any provision of this Agreement will hot constitute a waiver -of its •rights to subsequently enforce such provision or any other provision of this Agreement. (I) This Agreement may be executed in counterpart copies and delivered' via facsimile. (m) All notices hereunder will be given in writing, will refer to this Agreement, and will be personally delivered or sent by recei -pted .overnight courier, receipted facsimile transmission, or registered or certified mail (return receipt requested), to the address set forth below the Recipient's signature at the end of this Agreement. * Any party may from time to time change the notice address by giving the other party notice of such change in accordance with this Section. [Remainder of page intentionally left blank, signatures follow] �L IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date and year first written above. City of California NISSAN NORTH AMERICA, INC., a California County of , California corporation By: Name: Title: Date: Notice Address: Attention: Fax: By: Name: Title: Date: Notice Address: 333 Commerce Street Nashville, TN 37201 a Attention-, Fax: With a copy to: Nissan North America, Inc. 983 Nissan Drive, Bin 17U