HomeMy WebLinkAboutMINUTES - 08022005 - C51 • rT' r.
TO: BOARD OF SUPERVISORS
:,f.. ... s . .. CONTRA
= . .. COSTA
FROM: John Sweeten, County Administrator ��.�- z �:� ''
` �., . _, ,.� COUNTY
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DATE: July 21, 2005
SUBJECT: Confidentiality Agreement with Seren
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)& BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS):
AUTHORIZE the County Administrator or his designee to sign a Confidentiality Agreement
("Agreement") with Seren Innovations Inc.
FISCAL IMPACT:
None.
BACKGROUND:
On June 2, 2005, Seren Innovations Inc. submitted a Request for Assignment of their cable
television franchise to WaveDivision Holdings, LLC. The County contracted with Brenton A.
Bleier of the Bleier Law Firm along with the Cities of Concord and Walnut Creek to represent us in
this transfer process. On June 28,2005, Mr. Bleier notified Seren that the application they
submitted was incomplete.
One of the deficiencies of the initial submission was an incomplete Asset Purchase Agreement.
Seren agreed to provide this information if the attached Confidentiality Agreement was signed.
The Agreement will be in effect no longer than August 15, 2005. After that date, all materials
provided by Seren shall be deemed to be public information and no longer "confidential" unless
Seren withdraws its request for a transfer.
The City of Concord has signed and returned the Agreement and staff anticipates that the Cit of
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Walnut Creek will also sign the Agreement. County Counsel has reviewed and approved the
Agreement for signature. Staff recommends signing the Agreement.
CONSEQUENCES OF NEGATIVE ACTION:
If the Board does not approve the recommended action, the County will not be able to get the
information needed to complete the application and begin the review process for Seren's cable tv
franchise transfer.
CONTINUED ON ATTACHMENT: -L"-ytS SIGNATURE:
ul-� RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
AA"ROVE OTHER
SIGNATURE(S): *-
ACTION OF BOA D NAPPROVED AS RECOMMENDED JZOT%,-- -- - IKE R
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS(ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED
ABSENT: ABSTAIN: ON MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
ATTESTEVq'"' 2 ZA�)
JOHNS STEN,CLEAK OF
THE BO RD OF SUPERVISORS
cc:CAO AND COUNTY ADMINISTRATOR
Director,Office of Communications and Media
B ,DEPUTY
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT ("Agreement") is entered into this day
of July ,2005, by and between Seren Innovations, Inc. a Minnesota corporation, ("Seren") and
the Contra Costa County("County").
RECITALS
A. Seren and the County entered into that certain Franchise Agreement dated April
235 2002 (the"Franchise Agreement")pursuant to which Seren has been granted a cable
franchise by the County.
B. Seren has made an application with the County for transfer of its cable franchise
(the"Application")to WaveDivision Holdings, LLC ("Wave").
C. For the purposes of permitting the County to evaluate the Application, the County
has requested certain sensitive transactional and corporate financial information.
D. Seren desires to furnish such Confidential Information to County subject to the
terms and conditions of this Agreement and applicable law. Due to pending unrelated
transactions involving Seren, Seren desires that the Confidential Information(defined below) not
be made available to the public until the occurrence of the Termination Date (as defined in this
Agreement).
THEREFORE, based on these premises, and in consideration of the mutual promises and
obligations contained herein,the parties agree as follows:
AGREEMENT
1. Nondisclosure of Confidential Information.
(a) "Confidential Information", as defined in this Agreement, shall include
information submitted to County consisting of that certain Asset Purchase Agreement dated May
2410 2005 and the corporate financial records and corporate proprietary information described
therein or attached thereto or otherwise provided to the County, for the purpose of the County's
evaluation of the Application. Seren shall prominently mark each page of each document or
material submitted to County as Confidential Information.
Notwithstanding any designation by Seren, excluded from the definition of"Confidential
Information"is any document, writing, figure, calculation, or summary heretofore or hereafter
provided to any public entity which is available upon request as a public document under
Government Code section 6250 et seq. or otherwise placed in the public domain. Seren shall
advise the County of any such filing with a public entity. Failure to do so shall constitute a
material breach of this Agreement.
187827.4
(b) The County agrees to safeguard the Confidential Information from
Unauthorized Disclosure until the date (the "Termination Date")that is the earlier of: (i)the date
that Seren notifies the County in writing that this Agreement is terminated; or(ii)August 15,
2005. Notwithstanding any other term,provision or condition hereof, this Agreement shall be of
no further force or effect after August 15, 2005 and all materials provided by Seren shall be
deemed to be public information and no longer"confidential" as of that date. Unauthorized
Disclosure shall be deemed to mean any disclosure, dissemination or transmission of any kind to
any person other than to the employees, agents, County Supervisors, attorneys, consultants and
representatives of the County who are involved in the evaluation of the Application(individually
and collectively referred to herein as"Representatives"). County agrees that such disclosure to
the Representatives shall be for the purpose of evaluation of the Application.
(c) During the term of this Agreement, County agrees that it will: (i) inform
each of its Representatives of the confidential nature of the Confidential Information and of this
Agreement; (ii) cause such Representatives to treat the Confidential Information confidentially
and not to use it other than in connection with the evaluation of the Application.
(d) Unless previously specifically authorized in writing or by court order,
during the term of this Agreement, none of the Confidential Information will be disclosed by or
on behalf of County or any of its Representatives, whether by press release, disclosure document,
report of general or special meeting, governmental filing or other public document or medium in
connection, or in any other manner and the County agrees to delete any Confidential Information
prior to any disclosure so made unless prohibited or restricted by court order.
(e) County may exercise its privilege under California Evidence Code Section
1040 to refuse to disclose and to prevent it Representatives from disclosing Confidential
Information submitted by Seren. County shall disclose the Confidential Information if a court of
competent jurisdiction finds that said information is not privileged under Evidence Code Section
1040, or otherwise not exempt from disclosure under California law.
2. Treatment of Information. Any Confidential Information furnished to County, or
any of its Representatives by a Representative of Seren, will be deemed for purposes of this
Agreement to have been furnished by Seren. If Seren decides that it does not wish to proceed
with the Application contemplated by this Agreement, or, in the event that the Application is
rejected or denied, written notice shall given(by Seren in the case of termination of the
Application and by the County in the case of rejection or denial of the Application). The date of
termination of the Application, as set forth in said written notice shall constitute the "Application
Withdrawal Date". In such event, or at any time upon the written request of Seren for any reason
prior to the Termination Date [as defined in Section 1(b), above],the County will promptly
deliver to Seren or destroy, subject to any applicable statute of limitations, (and provide to Seren
a written certification of such destruction) all Confidential Information furnished to the County
or its Representatives. Notwithstanding the return or destruction of the Confidential Information
prior to the Termination Date, each party and its Representatives will continue to be bound by its
obligations of confidentiality obligations under this Agreement.
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187827.4
3. Return of Confidential Information to Seren.
(a) County agrees to keep all Confidential Information confidential until the
Termination Date and to return to Seren,upon the occurrence of the Application Withdrawal
Date(if any), all Confidential Information.
4. Disclosure of Confidential Information Prior to the Termination Date.
(a) In the event County is served with a request to produce public records
prior to the Termination Date, County shall provide Seren with prompt notice of such request to
produce the information in not less than two (2)business days from the date of request. Under
applicable law, County has ten(10) days to determine whether or not such records are public
records within the meaning of the Public Records Act. County shall notify Seren as well as the
requestor whether or not the records subject to the request are public and whether such records
will be disclosed pursuant to the request. In the event County denies the request, in all or in part,
based upon the provisions of Government Code Sections 6254, 6254.15, and 6255, and Evidence
Code Section 1040(b), or any other basis for nondisclosure, said notice of denial shall be
provided to both Seren and the requestor.
(b) In the event that a petition is filed seeking to compel disclosure of public
records (including, without limitation, Confidential Information)prior to the Termination Date,
County shall promptly notify Seren of the pending litigation. Seren may take whatever action is
appropriate to intervene in the pending litigation.
(c) If, after a hearing on the petition, a court determines that all or a part of the
records are public and therefore improperly withheld from a member of the public and orders
them disclosed, County shall disclose the information unless such order is appealed and a stay
order is issued. Seren agrees to indemnify County for any fees and costs incurred in the
litigation. In the event there is an award of costs and attorney's fees based upon a withholding of
public records, Seren agrees to indemnify County for any costs and fees incurred in defending
the action. No public official,public employee, or representative of County shall be personally
liable to Seren for any court ordered disclosure of public records.
5. Miscellaneous.
(a) No failure or delay by either party in exercising any right,power or
privilege hereunder will operate as a waiver thereof,nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any right,power or
privilege hereunder.
(b) This Agreement will be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns.
(c) This agreement will be governed by and construed in accordance with the
laws of the State of California.
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187827.4
(d) Each party to this Agreement represents and warrants that such party has
fullp ower and authority and has obtained all necessary consents and authorizations to enter into
this Agreement and to perform its obligations hereunder. The person(s) executing this
Agreement on behalf of each party respectively have full power and authority to do so in
accordance with the foregoing.
(e) Each of the parties acknowledges that they have been represented by
counsel or has had the full opportunity to seek counsel regarding the terms and conditions of this
Agreement and that Shapiro, Buchman,Provine & Patton, LLP has acted solely as attorney for
Seren.
(f) This Agreement may be executed in two (2) or more counterparts, all of
which taken together shall constitute but one Agreement.
UPON EXECUTION OF THIS DOCUMENT, THE PARTIES AGREE TO THE FOREGOING
TERMS AND CONDITIONS,, WHEREUPON THIS AGREEMENT SHALL BECOME THE
BINDING OBLIGATION OF EACH OF THE UNDERSIGNED.
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN:
COUNTY OF CONTRA COSTA SEREN INNOVATIONS!, INC.
By: By:
Title: Title:
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187827.4