07-20-2016 Non-Disclosure Agreement Vail Hurricanes Swim ClubNON - DISCLOSURE AGREEMENT
This Non - Disclosure Agreement ( "Agreement "), effective July 20, 2016, is made by and
between Vail Hurricanes Swim Club, LLC ( "VHSC ") and its affiliates and the Town of Avon, a
Colorado home rule municipal corporation ( "AVON ").
WHEREAS, AVON has published a Request for Proposals ( "RFP ") for a community swim
program, released on June 17, 2016 and VHSC desires to submit a proposal ( "Proposal ") in
response to the RFP for AVON's consideration and AVON desires to receive a Proposal from
VHSC; and,
WHEREAS, the RFP requests proprietary and confidential business information that
VHSCdesires to remain confidential to the greatest extent permitted by law; and,
WHEREAS, the parties acknowledge that AVON is subject to the Colorado Open Records Act,
set forth in Colorado Revised Statutes § 24 -72 -201 et. seq. ( "CORA ") with regard to the Town's
legal obligations to disclose public records.
WHEREAS, AVON acknowledges that the information received will be used exclusively for
purposes of an evaluation related to the RFP.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties
agree as follows:
I. The recitals above are incorporated herein.
2. AVON agrees to treat certain information in the Proposal as privileged information and
confidential commercial and financial data as defined under CORA ( "Confidential
Information ") except for information in the Proposal provided in response to RFP Paragraphs 1.
Cover Letter and 7. Fees. This Agreement shall not be treated as Confidential Information.
3. VHSC agrees to clearly mark at the top of each page of its Proposal that contains
Confidential Information the words "CONFIDENTIAL INFORMATION ". The information
excepted from Confidential Information as described in Paragraph 2 shall be provided on
separate pages that are not marked "CONFIDENTIAL INFORMATION ".
4. AVON agrees (a) not to distribute Confidential Information unless specifically authorized
by VHSC; (b) not to make disclosure of any Confidential Information to anyone except
employees and subcontractors of such party to whom disclosure is necessary for the purposes set
for the above; and (c) to appropriately notify such employees and subcontractors that the receipt
of Confidential Information shall not be disclosed or further distributed, and shall be treated with
the degree of care exercised generally for confidential information.
5. AVON agrees that in the event permission is granted by VHSC to copy the Confidential
Information, or that copying is otherwise permitted hereunder, each such copy shall contain and
state the same "CONFIDENTIAL INFORMATION" mark which appears on the original.
Nothing herein shall be construed as granting to AVON any right or license under any
copyrights, inventions, or patents now or hereafter owned or controlled by VHSC.
6. If AVON receives a public records request that seeks disclosure of Confidential
Information, AVON agrees (1) that AVON will promptly notify VHSC of such request,
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AVON -VHSC, July 11, 2016
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(2)AVON will reasonably cooperate with VHSC in responding to such public records request
under the applicable timeframe and provisions of CORA, and (3) AVON will deny such public
records request as may be permitted by CORA. In the event that AVON's denial of a public
records request for Confidential Information is challenged in court, or in the event that AVON
seeks a court order approving its denial of a public records request for Confidential Information,
AVON agrees to reasonably cooperate with VHSC in such court action.
7. This Agreement shall expire on July 11, 2019, unless terminated early by mutual
agreement of the parties. Upon expiration of this Agreement the Confidential Information,
together with any copies of same as may be authorized herein, shall be returned to VHSC or
certified destroyed by AVON, except to the extent that AVON's municipal records retention
schedule requires a longer period of retention.
8. AVON may not assign or transfer this Agreement or any rights hereunder without written
consent of VHSC. VHSC may not assign or transfer this Agreement except to a successor
company if such assignee agrees in writing to the terns and conditions of this Agreement.
9. The rights and obligations of this Agreement shall survive expiration or termination.
10. The laws of Colorado shall govern the construction and interpretation of the Agreement.
11. The parties agree that monetary damages may be an insufficient remedy for any actual or
anticipatory breach of this Agreement, and that injunctive relief will be an available remedy to
prevent the disclosure or improper use of Confidential Information or breach of this Agreement.
12. No provision of this Agreement shall be deemed waived, amended or modified by either
party, unless such waiver, amendment or modification is made in writing and signed by both
parties. This Agreement supersedes all previous agreements between the parties relating to the
subject matter thereof. This Agreement constitutes the full and entire agreement between the
parties regarding the Confidential Information.
13. Any notice to be given hereunder by either party to the other, shall be in writing and shall
be deemed given when hand - delivered or when sent by email with confirmation of receipt.
14. This Agreement may be signed in counterparts, each of which may be deemed an
original, and all of which together constitute one and the same agreement.
15. VHSC understands submittal of a Proposal must be delivered to AVON not later than
Friday, July 29, 2016, by 5:00 p.m. MDT.
16. VHSC has read and understands that AVON may reject its proposal as stated on pages 4
and 5 of the RFP, and submitting a Proposal does not commit AVON to award or contract, nor
pay any costs incurred in the preparation and submission of its Proposal in the anticipation of a
services agreement.
IN WITNESS THEREOF, the parties have caused their duly authorized representatives to sign
this Agreement as of the date first stated above.
VHSC: AVON:
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By: By: 0 co _---�
Title: Y Virginia Egger, Tow ger
E -Mail Address: E -Mail Address: ve von.org
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AVON -VHSC, July 11, 2016
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NON - DISCLOSURE AGREEMENT
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