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HomeMy WebLinkAboutCC AG PKT 2009-01-12 #NAGENDA STAFF REPORT DATE: January 12, 2009 TO: Honorable Mayor and Ciry Council THRU: David Carmany, City Manager FROM: Jill R. Ingram, Assistant to the City Manager SUBJECT: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT BETWEEN THE CITY OF SEAL BEACH AND TIME WARNER CABLE SUMMARY OF REQUEST: That the City Council receive and file the attached Confidentiality and Non- Disclosure Agreement between the City of Seal Beach and Time Warner Cable. BACKGROUND: The City has a franchise agreement with Time Warner Cable LLC that authorizes the construction, operation, and maintenance of a cable television system within the City of Seal Beach. Section 2.3 of the franchise agreement allows the City to perform an audit once every three years. In that regard, the City Council adopted Resolution No. 5780 at their regular meeting of September 8, 2008, approving an agreement between the City of Seal Beach and Diehl, Evans, and Company, for auditing services of the cable television franchise agreement. In order to facilitate the conducting of an audit, Time Warner Cable and the City of Seal Beach have subsequently entered into a Confidentiality and Non- Disclosure Agreement that provides that the Ciry of Seal Beach will not release any confidential and proprietary information which is disclosed during the audit process, unless otherwise required by the Public Records Act or other applicable law. The City Manager executed the Confidentiality and Non-Disclosure Agreement on December 29, 2008, and this report supports his action on behalf of the City and the City Council. Agenda Item N Page 2 FINANCIAL IMPACT: There is no financial impact. RECOMMENDATION: That the City Council receive and file the attached Confidentiality and Non- Disclosure Agreement between the City of Seal Beach and Time Warner Cable. SUBMITTED BY: Jil .Ingram, ssistant to the City an NOTED AND APPROVED: Davi~ar~many, City Manager Attachment: A. Copy of Signed Confidentiality and tJon-Disclosure Agreement CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Confidentiality and Non-Disclosure Agreement (hereinafter "Agreement") is entered into as of December 29 , 2008 (the "Effective Date") by and between Time Warner NY Cable LLC a.k.a. Time Warner Cable, and its parents and subsidiaries (hereinafter collectively referred to as the "Disclosing Parties"), on the one hand, and CITY OF SEAL BEACH (hereinafter referred to as the "Financial Auditor and Receiving Party"), on the other hand. WHEREAS, the parties hereto agree that to facilitate the conducting of an audit of the Disclosing Parties' activities related to their business in the City of Seal Beach, California, it will be necessary for the Disclosing Parties to disclose to the Financial Auditor and Receiving Party certain information, all of which disclosed information shall be treated as Confidential and Proprietary Information, as hereinafter defined; NOW, THEREFORE, in consideration of the disclosure of such Confidential and Proprietary Information (as defined herein below), the Disclosing Parties and the Financial Auditor and Receiving Party agree as follows: 1. As used herein: "Information" is defimed to include communications or data, in any form, including, but not limited to, oral, written, graphic or electromagnetic forms. "Financial Auditor and Receiving Party" is defined to further include any parent, subsidiary, affiliate, employee, and independent contractor of Financial Auditor and Receiving Party, as well as other third party or parties to whom such Confidential and Proprietary Information necessarily has been provided. "Confidential and Proprietary Information" is defined as that Information which the Disclosing Parties provide to Financial Auditor and Receiving Party, all of which such Information the parties hereto agee shall be treated as Confidential and Proprietary Information by Financial Auditor and Receiving Party. 2. All Information that is disclosed by the Disclosing Parties to Financial Auditor and Receiving Party shall be protected hereunder as Confidential and Proprietary Information unless otherwise agreed to in a written document executed by the Disclosing Parties. Further, Financial Auditor and Receiving Party hereby agrees that should it be required to disseminate such Confidential and Proprietary Information to complete this audit, it shall (i) first provide to Disclosing Parries an opportunity to review what information it intends to provide to the City prior to provision of the same so as to insure the accwacy and appropriateness of the content thereof, and (ii) fully disclose the terms of this Agreement and obtain iiom each such recipient to which such information is to be disseminated a written, dated and executed consent to be bound by all of the terms and provisions set forth herein. -1- 3. Financial Auditor and Receiving Party hereby agrees that Disclosing Parties' Confidential and Proprietary Information shall be treated and safeguarded by Financial Auditor and Receiving Party, using, at a minimum, the same degree of care that it uses to protect its own confidential and/or proprietary information. Financial Auditor and Receiving Party further hereby warrant that it will safeguazd against the unauthorized disclosure of Confidential and Proprietary Information with a high degree of reasonable care. 4. Financial Auditor and Receiving Parry expressly agrees that (i) any Confidential and Proprietary Information disclosed hereunder shall be used by Financial Auditor and Receiving Party solely for the purpose of conducting the audits of Disclosing Parties' activities in the areas duly noted hereinabove; (ii) it shall not use the Confidential and Proprietary Information disclosed hereunder for any other purpose; and (iii) it shall not distribute, disclose, or disseminate to anyone other than the party/parties for whom the subject audit is being conducted, by any manner or means, such Confidential and Proprietary Information, unless and until such time as: (a) Such Confidential and Proprietary Information is or becomes generally available to the public, through no fault of Financial Auditor and Receiving Party or those to whom disseminated for purposes of completion of this audit and without breach of this Agreement; or (b) Disclosure of such Confidential and Proprietary Information is required by applicable law. Within a reasonable time period prior to any such disclosure, Financial Auditor and Receiving Party shall notify the Disclosing Parties of such request and of Financial Auditor and Receiving Party's intent to provide such information to enable Disclosing Parties to take such legal action to prevent such disclosure. Unless otherwise required by law, Financial Auditor and Receiving Party shall independently exercise reasonable best efforts to assist Disclosing Parties' efforts to obtain a protective order or other similar protective arrangement covering the Confidential and Proprietary Information 5. This Agreement shall continue in perpetuity in full force and effect from the Effective Date forward, regardless of the successful or unsuccessful completion of the underlying audits, until the Financial Auditor and Receiving Party or those to which such information has been disseminated aze released in writing from this Confidentiality and Non-Disclosure Agreement by the Disclosing Parties. Notwithstanding the foregoing, if this Agreement is terminated at any time earlier than seven (7) years from the Effective Date, Financial Auditor and Receiving Party shall be permitted, at its option, to retain the Confidential and Proprietary Information until the expiration of seven (7) years from the Effective Date, at which time the provisions of Section g herein below shall govern the return of all Confidential and Proprietary Information from Financial Auditor and -a- Receiving Party to Disclosing Parties. 6. Financial Auditor and Receiving Party shall advise all employees, consultants, advisors, agents and other representatives (collectively, "representatives") who will have access to the Confidential and Proprietary Information as to the obligations contained herein. 7. The failure of Disclosing Parties, by waiver or otherwise, to require performance of arty provision hereof shall in no manner affect its rights at a later time to enforce such provision or any other provision. 8. Upon termination of this Agreement and/or at Disclosing Parties' written request and instruction, all Information, including all Confidential and Proprietary Information in the possession of Financial Auditor and Receiving Party, shall be returned to the Disclosing Parties within thirty (30) business days of such request and instruction, all at the Financial Auditor and Receiving Party's expense, provided, however, that Disclosing Parties may not make such request until the underlying audits have been respectively completed or terminated. 9. Without the prior written consent of Disclosing Parties, Financial Auditor and Receiving Party shall not, and shall direct all who are given access to the Confidential and Proprietary Information not to, disclose to any person (other than a person authorized hereunder) the fact that the Confidential and Pmprietary Information has been made available to Financial Auditor and Receiving Party. The term "person" as used herein includes, without limitation, any corporation, company, partnership or individual. 10. It is agreed that money damages may not be a sufficient remedy for any breach of this Agreement by Financial Auditor and Receiving Party or their representatives and may result in immediate and irreparable harm to Disclosing Parties. Accordingly, Disclosing Parties shall be entitled to equitable and injunctive relief, specific performance and/or any other appropriate equitable remedy in the event of a determination by a court of competent jurisdiction of any breach of the provisions of this Agreement. Such remedies shall not be deemed to the exclusive remedy for Financial Auditor and Receiving Parry's breach of this Agreement, but shall be in addition to all other remedies available at law or in equity. 1 ] . This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 12. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent of the parties. Each party hereto represents and wamarrts that it has full power and authority to enter into this Agreement and to perform its obligations hereunder. 13. This Agreement and any dispute relative hereto shall be governed by, interpreted by, and construed in accordance with the laws of the State of California, without regazd to the principals of conflicts of law. Any legal action with respect to this Agreement shall be filed in the appropriate court within the County of Orange, State of California. 14. With respect to this Agreement, the parties shall bear their own attorney fees and costs. Should any legal action or arbitration or other proceeding be brought for the enforcement of this Agreement or by reason of any asserted breach thereof, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys' fees incurred in enforcing or attempting to enforce any of the terms, covenants or conditions of this Agreement, in addition to any other relief. 15. This Agreement contains the entire agreement between the parties to this Agreement with respect to the subject matter of this Agreement, is intended as a fmal expression of such parties' agreement with respect to such terms as are included in this Agreement, is intended as a complete and exclusive statement of the terms of such agreement, and supersedes all negotiations, stipulations, understandings, agreements, representations and warranties, if any, with respect to such subject matter, which precede or accompany the execution of this Agreement. 16. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenfotceability, unless such provision or such application of such provision is essential to this Agreement. 17. Any waiver of a default under this Agreement must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act. 18. In resolving any dispute or construing any provision hereunder, there shall be no presumptions made or inferences drawn because a party, or the attameys for one of the parties, drafted this Agreement or any provision thereof. 19. Each of the parties executing this Agreement represents that they have (a) been advised to obtain legal advice from an attorney of their choice regarding this Agreement; (b) had the opportunity to obtain such independent legal advice regarding this Agreement; (c) made an investigation of the facts pertaining to this Agreement; and (d) read this Agreement and signed it of their own free will. 20. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. TIME WARNER 1V1' CABLE LLC d/b/a TIME WARNER CABLE sy: _ Name: Title: Date: CITY OF SEAL BEACH Name: David rmanv Title: City Manaqer Date: December 29. 2008