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Home My WebLink AboutSMART WAVE TECHNOLOGIES LLC INSURANCE NOT REQUIRED N-2025-122 WORK MAY PROCEED CITY CLERK DATE: MAY 2 7 2025 CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This NON-DISCLOSURE AGREEMENT("Agreement") is entered into and effective as p: ST�a) of April 30, 2025 ("Effective Date"), by and between Smart Wave Technologies LLC, a Georgia (lac�Gullc� KF limited liability company("Smart Wave"or"Recipient"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California("City"or"Discloser"). Each of the foregoing are hereinafter referred to as"Party"and together as the "Parties." WHEREAS, Recipient has proposed constructing a downtown wireless network for the City, and in so doing may require access to City facilities and/or assets. As a result of Recipient's potential access to sensitive and/or confidential information owned by the City,Recipient has agreed to not disclose such confidential information pursuant to the terms of this Agreement. NOW THEREFORE, in consideration of the Recipient's access to and provision by the City of Confidential Information,the parties agree as follows: 1. Purpose of Disclosure. The disclosure of Confidential Information by the City to Recipient is made for the purpose of performing a cybersecurity assessment for the City and providing a confidential report to the City on its findings and to assist the City with recommendations to improve the cybersecurity posture of the City. 2. Confidential Information. "Confidential Information" means any information, technical data, or knowhow,whether received in physical,verbal, or electronic format, including, but not limited to, that which relates to methods, research, product plans, products, services, software, developments, processes, designs, drawings, engineering, City assets such as street lights, traffic signals, City buildings, City owned towers of any kind, water tanks,bus shelters, or other City owned infrastructure, hardware configuration information processes, formulae, compositions, systems, techniques, and computer programs which may include but may not be limited to specifications, designs, plans, process flows diagrams, functional descriptions of security systems,security drawings, security software,security protocols,personal data(protected by applicable California law), data protection,marketing data, customer lists,vendor lists or other information, which is proprietary, trade secret, or confidential to the City of Santa Ana. Such Confidential Information may be designated in writing by City to be confidential or proprietary, or if given orally, is confirmed promptly in writing as having been disclosed as confidential or proprietary. Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii)prior or after the time of disclosure becomes part of the public knowledge or literature,not as a result of any inaction or action of the receiving party; (iii) is approved for release by the Discloser in writing; (iv) is or CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT Page- 1 - becomes part of the public domain other than as a result of disclosure by receiving Party; (v) becomes available to receiving Party on a non-confidential basis from a source other than disclosing Party, provided that source is not bound with respect to that information by a confidentiality agreement with disclosing Party; or (vi) is disclosed with the prior written consent of disclosing Party. 3. Recipient Obligations. Recipient agrees that: (i) All information communicated to Consultant with respect to the Purpose of Disclosure,including any Confidential Information gained by Consultant or Consultant's representatives, whether or not that Confidential Information was directly or intentionally communicated, is confidential. Consultant further agrees that all information, conclusions, recommendations, reports, advice, or other documents generated by Consultant pursuant to this Agreement is confidential except to the extent that disclosure is required under the law. (ii) It will use commercially reasonable efforts to safeguard Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of the Confidential Information; (iii) It will hold Confidential Information in strict confidence and disclose Confidential Information only to those officers, directors, or employees of Recipient who need to know such Confidential Information in order to carry out the Purpose of the Disclosure, and shall inform and direct those individuals that Confidential Information is confidential and that they are required to treat the Information confidentially in accordance with the terms of this Agreement; (iv) In the event the employment or appointment of any such person is terminated, Recipient agrees to use its best efforts to recover any Confidential Information in such person's custody or control; (v) It will not copy or reproduce any of the Confidential Information, except as necessary to carry out the Purpose of the Disclosure; (vi) It will not use any of Confidential Information other than for the Purpose of the Disclosure, and then only in strict compliance with the provisions hereof; (vii) Not directly or indirectly, either during or subsequent to the term of this Agreement, disclose Confidential Information to any third party; (viii) Promptly notify City in writing of any unauthorized use or disclosure of the Confidential Information; such notice shall include a detailed description of the circumstances of the disclosure and the parties involved; CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT Page - 2 - (ix) In the event that Recipient is requested in any proceeding to disclose any of Confidential Information, Recipient shall provide City with prompt notice of such request so that City may seek a protective order or other appropriate remedy. In the event that such a protective order or other protective remedy is not obtained, the Recipient shall furnish only that portion of the information, which is legally required, in the opinion of Recipient's counsel, to be disclosed. (x) Refrain from engaging in any photography or taking of video of City officials, employees, or volunteers or their property that is not directly related to the scope of Recipient's work for the City. 4. Term.Recipient's obligations hereunder shall commence upon the date first written above and shall continue for a period of one(1)year. Promptly upon termination or City's request, Recipient shall return or certify the destruction of all Confidential Information and shall not retain any copies thereof. 5. Indemnification and Other Relief. Recipient agrees to indemnify and hold City harmless from and against all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, reasonable fees for attorneys, expert witnesses, and court costs) which result from a breach or threatened breach of this Agreement by Recipient. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient and that City shall be entitled to specific performance as a remedy for any such breach, without the necessity of posting bond or any other security. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but shall be in addition to all other remedies available at law or equity to City. 6. General. (i) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California; (ii) The prevailing party, as determined by the court, in any action between the parties rising from this Agreement shall be entitled to recover, in addition to any other relief awarded, its costs and expenses incurred in any such proceeding, including, without limitation, its reasonable fees for attorneys, expert witnesses and court costs; (iii) Should any provision of this Agreement be determined to be void, invalid, or otherwise unenforceable by any court of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall remain in full force and effect; CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT Page- 3 - (iv) No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties; (v) Recipient's rights under this Agreement cannot be assigned to any third party without City's prior written consent and any attempted or purported assignment of this Agreement without City's consent shall be void; (vi) This Agreement constitutes the entire agreement and understanding between the parties with respect to the Confidential Information listed above, and supersedes all prior and contemporaneous negotiations, discussions, and understandings of the parties, whether written or oral. IN WITNESS THEREOF,THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE. City of Santa Ana Recipient By: By: Alvaro Nunez Name: Al Brown City Manager Title: CEO Recommended for Approval: Approved as to Form: SONIA R. CARVALHO City Attorney , By: Jac iulla Jonathan T.Martinez Chi Technology Assistant City Attorney Innovations Officer ATTEST. Y �nnifer L. all C CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT Page - 4 -