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MEMORANDUM OF AGREEMENT FOR NON - DISCLOSURE OF GIS DATA SHARED
BETWEEN CITY OF AUBURN AND ASTOUND BROADBAND, LLC.
THIS MEMORANDUM OF AGREEMENT is made and entered into on the
day of M K'G � 2015, by and among the CITY OF AUBURN ( "Auburn" or
the "City "), a municipal corporation of the State of Washington, and ASTOUND BROADBAND,
LLC, a Washington limited liability company (doing business as "Wave ") ( "Wave"). This
agreement shall be referred to as the "Agreement" and, collectively, these entities shall be referred
to as the "Parties ".
RECITALS:
1. WHEREAS, Auburn owns and maintains a computerized geographic information
system ("GIS "), collecting and managing data for public and private land describing land uses,
demographics, infrastructure, utilities, critical areas, transportation corridors, physical features,
housing, and other information useful in studying and managing growth throughout the City.
Auburn's GIS consists of proprietary and confidential maps and data layers, the release of which is
prohibited by inter - agency agreements and by laws including but not limited to RCW 42.56.420
and the release of which would potentially compromise the security of the City's network
infrastructure (this information shall hereafter be referred to as the `Confidential Information');
and,
2. WHEREAS, Wave has informed Auburn of its interest in providing and installing
fiber optic lines and other communications infrastructure for the City, and its desire to examine GIS
shape files of the City's existing conduit and fiber plant to develop a proposal and plan for
executing this contemplated work; and,
3. WHEREAS, Auburn and Wave intend to enter into contractual agreements for the
purpose of installing fiber optic lines and other communications infrastructure for the City, which
will require the sharing and disclosure of Confidential Information between the Parties.
NOW THEREFORE in consideration of their mutual covenants, conditions and promises,
THE PARTIES DO HEREBY AGREE as follows:
1. This Agreement shall apply to the Parties, as well as to any subsidiaries, officers,
employees, agents, assigns or successors of the Parties.
2. The Parties shall each inform their employees and agents who come into possession
of Confidential hiformation of the terms and conditions of the Agreement.
3. The Parties shall each receive and hold all Confidential Information (as such term is
defined below) acquired Prom each other in confidence and will disclose such information within its
own organization only. The term "Confidential Information" means confidential or proprietary
information of a party that is clearly marked in a conspicuous place with an appropriate legend
identifying the information as confidential; provided, the failure to mark or designate information as
being confidential or proprietary will not waive the confidentiality where it is reasonably obvious,
under the circumstances surrounding disclosure, that the Information is confidential or proprietary.
Confidential Information that is not written must be identified as Confidential Information at the
time of disclosure and confirmed in writing delivered within 15 days following its disclosure. For
the elimination of doubt, the protections of this Agreement will apply during those 15 days.
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4. A Party that has received Confidential Information governed by the Agreement (a
"Recipient ") will, to the maximum extent allowed by law, not disclose the Confidential Information
for any purposes other than in furtherance of the purposes stated previously in this Agreement
unless given written approval to do so by the Party who has provided the Confidential information
(a "Discloser "). Notwithstanding anything to the contrary herein, in the event the Recipient is
requested pursuant to, or required by, applicable law, judiciary, governmental, regulatory,
administrative, legal or other similar process (including, without limitation, by oral questions,
interrogatories, requests for information or documents, deposition, subpoena, civil investigative
demand or other process) to disclose any Confidential Information, the obligation not to disclose
the Confidential Information will be inoperative with respect thereto and the Recipient will not be
liable for such disclosure of such Confidential Information provided that the Recipient, so long as
permitted to do so by law, provides the Discloser with notice of any such request or requirement as
soon as practicable so that the Discloser may seek an appropriate protective order or other such
remedy. In the event that such protective order is not obtained, the Recipient may disclose only that
portion of the Confidential Information that the Recipient is advised by counsel is legally required
to be disclosed and to use commercially reasonable efforts (at the Disclosers expense) to ensure
that such Confidential Information will be accorded confidential treatment.
5. A Recipient shall not be liable for disclosure of Confidential Information if such
information: i) was possessed by Recipient prior to its receipt; ii) becomes generally available to the
public without breach of this Agreement; or iii) was acquired by Recipient from a third party that,
to Recipient's knowledge, is not bound by a confidentiality agreement with the Discloser
prohibiting such disclosure.
6. It is acknowledged and understood that as a municipal corporation in the state of
Washington, Auburn is subject to Washington State laws and regulations including the Washington
Public Records Act, RCW 42.56 et seq. (http: / /apps.leg.wa.gov/RCWO. If a Public Records Act
request is made to view Confidential Information obtained from Wave, and the City determines that
no exemption to disclosure applies or is unable to determine whether an exemption to disclosure
applies, Auburn will promptly notify Wave in writing of the request at least ten (10) business days
prior to the date that such records will be released to the requestor unless a court order is obtained
and served upon the City enjoining such disclosure. In the absence of a court order enjoining
disclosure, Auburn will release the requested information on the date specified.
7. The furnishing of Confidential Information under this Agreement shall not
constitute or be construed as a grant of any express or implied license or other right, under any
patent or other intellectual property right.
8. This Agreement is in effect as of the date first written in the Agreement and shall
continue for a period of three (3) years. At such time, the Agreement shall expire, unless the parties
agree to renew the Agreement not less than 30 days before its expiration, for successive periods of
one (1) year in duration. The Agreement may also be terminated earlier by either party, at any time,
on 30 days' prior written notice. Upon expiration or termination of this Agreement, Recipient shall
immediately cease any and all disclosures of Confidential Information and, at the Discloser's
request, Recipient shall return promptly all Confidential Information, including any copies, to
Discloser. Notwithstanding the foregoing provisions, the Recipient may retain (i) so much of the
Confidential Material as the Recipient reasonably believes is necessary to comply with any legal or
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regulatory requirements and (ii) any Confidential Information that is contained in an archived
computer system backup in accordance with such party's security and /or disaster recovery
procedures; provided that any such Confidential Information that is retained in accordance with this
paragraph shall remain subject to the confidentiality obligations set forth in this Agreement in
accordance with the terms of this Agreement.
9. The obligation of a Recipient with respect to disclosure and use of Confidential
Information acquired from Discloser shall survive expiration or termination of this Agreement and
shall continue for a period of three (3) years thereafter or, with respect to any applicable portion of
Confidential Information, until the effective date of any of the events recited in Section 5 of this
Agreement, whichever occurs first.
10. This Agreement shall be governed and construed in accordance with the laws of the
State of Washington and the venue of any action brought hereunder shall be in the Superior Court
of King County.
11. This Agreement supersedes all previous and contemporaneous communications,
transactions and understandings, whether, oral or written, and constitutes the sole and entire
agreement pertaining to the subject matter mentioned previously in this Agreement. No
modification or addition of these terms shall be binding unless made in writing and signed by an
authorized representative of both Parties.
12. Each party acknowledges its acceptance of this Agreement by signature of its
authorized officer on duplicate counterparts of the Agreement, one of which fully executed
counterparts is to be retained by each party.
[Remainder of page left blank, signature page follows]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
CITY OF AUBURN
By: t _
Name: JAA J& AA JA\k �C-,
Director of Administration, Michael Hursh
Date: -i - (a or
Attest:
City Clerk
Date: 4/(o
Approved as to Form:
Daniel B. Heid, City Attorney
Date: L 7_0 5
ASTOUND BROADBAND, LLC
By: /
Name: JHHES A. Peg M %e
Title: 6Xeew -4ve. VISA
Date: - F"
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