SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT BART CONTRACT

san francisco bay area rapid transit district bart contract no. 09ek-130 oakland emergency generator (oeg) system non-disclosure agre

SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
BART CONTRACT NO. 09EK-130
OAKLAND EMERGENCY GENERATOR (OEG) SYSTEM
NON-DISCLOSURE AGREEMENT
FOR RELEASE OF SECURITY SENSITIVE INFORMATION
FOR CONSTRUCTION
This Non-Disclosure Agreement for Release of Security Sensitive
Information for Construction ("Agreement") is made as of this _____
day of ___________, 20___, between the San Francisco Bay Area Rapid
Transit District ("the District") and ____________________________
("the Contractor").
WHEREAS, the Contractor has been awarded Contract No. 09EK-130,
OAKLAND EMERGENCY GENERATOR (OEG) SYSTEM (the “Contract”).
WHEREAS, the disclosure of Security Sensitive Information (“SSI”), as
defined below, or access to Restricted Areas, as defined below, to
unauthorized parties may cause irreparable damage to the District and
the public.
WHEREAS, the Contractor has previously executed a Non-Disclosure
Agreement for Release of Security Sensitive Information for Bidding
Purposes for the Contract, pursuant to which the District made
available to the Contractor certain Security Sensitive Information.
WHEREAS, the District will make available certain Security Sensitive
Information, as defined below, and allow access to Restricted Areas,
as defined below, to the Contractor to be used to perform the Work
under the Contract and for no other purpose ("Disclosure Purposes")
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth in this Agreement, the parties agree as follows:
1. Definition of "Security Sensitive Information". "Security Sensitive
Information" or “SSI” means the Contract Documents for the Contract,
Record Drawings, Reports and Studies together with all documents and
copies related to the Contract, including specifications, drawings,
photographs, plans, designs, and data (including electronic data)
concerning District facilities, that are stamped or otherwise denoted
by the District as SSI. SSI also includes information derived from
access that the District provides to the Contractor to view, observe,
and inspect District facilities that are not open to and not
accessible to the public and that have been designated as Security
Sensitive ("Restricted Areas"), and any and all sketches, notes, and
narratives taken or prepared by the Contractor of Restricted Areas.
The Contractor is prohibited from taking photographs of any Restricted
Areas without prior written District approval. The Contractor shall
submit a request for such an approval to the Engineer in conformance
with the provisions in the Contract.
All SSI received and derived by the Contractor under the terms of the
Non-Disclosure Agreement for Release of SSI for Bidding Purposes is
subject to the terms of this Agreement. To the extent not inconsistent
with this Agreement, the terms of the Non‑Disclosure Agreement for
Release of SSI for Bidding Purposes are incorporated by reference.
2. Execution of Agreement, Exhibits A-1 and A-2, Photo IDS, Social
Security Numbers or Passport Numbers, and Security Deposit. Within
seven (7) calendar days of receipt of a Notice of Recommended Award of
the Contract from the District, the Contractor shall hand deliver to
the District Secretary (if submitted prior to execution of the
Contract) or alternatively to the Engineer (if submitted following
execution of the Contract) at the addresses contained herein,
respectively, two sealed envelopes as follows: In one sealed and
opaque envelope labeled “Confidential Information for Contract No.
09EK-130”, enclose the ID’s and Exhibits A-1 and A-2 to the Agreement.
In the other sealed and opaque envelope labeled “Agreement for
Contract No. 09EK-130”, the executed Agreement (excluding the IDs, and
Exhibits A-1 and A-2). The addresses for the District Secretary and
the Engineer are included in Section 16 herein. Submit to the District
Secretary or Engineer completed Exhibits A-1 and A-2 that identify the
names of all individuals within Recipient's firm, including
identifying its Security Sensitive Information Handler (“SSIH”)
described in Section 5 of this Agreement (hereafter collectively
referenced as "Employees") anticipated to be granted access to SSI and
Restricted Areas, copies of a government issued photo identification
(Photo ID), preferably a driver's license, and Social Security Numbers
(listed in Exhibit A-1 only) for each Employee. This information will
be used for Security Screening purposes only. After Security
Screening, Exhibit A-1 will be destroyed by the District.
Contractor shall require any third party proposed for participation in
the Contract (herein referred to as “Third Party” or collectively as
“Third Parties”), including Subcontractors, Suppliers, and
Consultants, to execute a Third Party Non-Disclosure Agreement for
Release of Security Sensitive Information for Construction (Third
Party NDA for Construction) and to submit their respective Exhibits
A‑1 and A‑2 directly to the District Secretary within fourteen (14)
calendar days following receipt by the Contractor of the Notice of
Recommended Award.
Along with the Exhibits A‑1 and A‑2, the Third Party shall include
copies of a government-issued Photo ID, preferably a driver’s license,
and Social Security Number (listed in Exhibit A‑1 only) for each Third
Party employee proposed to be granted access to SSI or Restricted
Areas.
The Notice to Proceed will not be issued until the following
conditions have been satisfied:
(a) The Contractor has received written notification from the District
that the names of the Employees submitted by the Contractor have
passed the Security Clearance, and that the names of Third Parties who
have submitted Exhibits A‑1 and A‑2 to the District have passed the
Security Clearance. The District’s written notification will be sent
with a copy of each Exhibit A-2 submitted by the Contractor and by the
Third Parties with dates of Security Clearance provided by the
District. The Contractor shall also deliver to the Engineer, promptly
after execution, copies of all Third Party NDAs for Construction
executed by the Contractor with the Third Parties.
(b) The Contractor has submitted to the District the Performance Bond,
Payment Bond, and copies of required insurance certificates, and has
executed the Contract with the District.
Furthermore, it is agreed that the District will withhold as a
guarantee of compliance with this Agreement:
(i) for the Agreement executed between the District and the
Contractor, an amount of fifteen thousand dollars ($15,000) from the
first payment due to the Contractor under the Contract and,
(ii) for each Third Party NDA for Construction executed between the
Contractor and a Third Party as stated in Section 6 of this Agreement,
an amount of five thousand dollars ($5,000) from the payments due to
the Contractor under the Contract for the portion of the work
performed by each respective Third Party.
Upon the Contractor's certification that the Third Party has completed
its portion of the work and the District's verification of the
Contractor’s full compliance with this Agreement and the Third Party’s
full compliance with the corresponding Third Party NDA for
Construction, the withholding described in Section 2(b)(ii) above will
be released to the Contractor in the payment due to the Contractor
that follows such a District determination. Upon receipt of such
payment, the Contractor shall promptly pay this amount to the Third
Party.
Upon Acceptance of the Contract and the District's verification that
the Contractor is in full compliance with this Agreement, the
withholding described in Section 2(b)(i) above will be returned to the
Contractor in the final payment.
The above amounts will not be returned by the District in the event of
any breach of this Agreement by the Contractor or a breach by a Third
Party of its corresponding Third Party NDA for Construction,
respectively.
3. Security Screening. All Contractor and Third Party Employees
proposed to have access to SSI and Restricted Areas will be subject to
a Security Screening, whereby copies of the Photo IDs and Social
Security Numbers or Passport Numbers will be used for a law
enforcement check to compare the names against the Federal Bureau of
Investigation (“FBI”) Terrorist Watch List.
The Contractor agrees to provide other personal information as may be
required by law enforcement agencies in the event the Contractor
Employee's name appears on the FBI’s Terrorist Watch List.
It is anticipated that fourteen (14) calendar days will be required
for the District to obtain results of the Security Screening after
receipt of the executed Agreement as detailed in Section 2 above. The
District reserves the right to deny access to SSI or Restricted Areas
to personnel who do not pass the Security Clearance.
If during performance of work under the Contract the Contractor wishes
additional Employees to have access to SSI or Restricted Areas, the
Contractor shall submit additional Exhibits A-1 and A-2 along with
copies of Photo IDs and Social Security Numbers or Passport Numbers
for the additional Employees to the Engineer in a sealed, opaque
envelope labeled “Confidential Information for Contract No. 09EK-130”.
The Contractor shall not release SSI or allow access to Restricted
Areas to Employees unless such Employees have passed the Security
Clearance.
4. Disclosure Purposes. The Contractor agrees to hold SSI in trust and
confidence. The Contractor agrees that SSI shall be used only as
necessary to perform the Work under the Contract (“Disclosure
Purposes”), and SSI shall not be used for any other purpose without
the District's prior review and written approval. By accepting and
using SSI, the Contractor expressly agrees to comply fully with all
terms of this Agreement. The Contractor will not use SSI in any way,
directly or indirectly, that is damaging or harmful to the District or
District facilities. This obligation survives termination of this
Agreement.
5. Safeguards Against Unauthorized Disclosure. The Contractor shall
implement safeguards and procedures to prevent the unauthorized
disclosure of SSI, and shall designate a responsible managing employee
or responsible managing officer as its Security Sensitive Information
Handler (“SSIH”) who shall ensure that all safeguards are maintained.
The SSIH shall keep the originals of Exhibits B, C, and D listed below
and shall make them available to the District upon request. The SSIH
shall be responsible for the following:
(a) Marking SSI as "SECURITY SENSITIVE."
(b) Maintaining a current set of all copies of Exhibit A-2 for the
Contactor and Third Parties sent to the Contractor by the District
with dates of Security Clearance provided by the District.
(c) Providing the Contractor's Employees adequate instructions with
regard to the use and disclosure of the SSI, including obtaining the
Employees' signed Non‑Disclosure Consent Forms attached as Exhibit B
to this Agreement.
(d) Restricting disclosure of SSI only to the Contractor's Employees
who have passed a Security Clearance and within that group on a "need
to know" basis as necessary for the Disclosure Purposes.
(e) Maintaining, in the form attached as Exhibit C, a current log of
all Third Parties with access to SSI, including the name of the SSIH
for each Third Party that obtained SSI from the Contractor and a
description of SSI provided to them.
f) Maintaining copies of all Third Party NDAs for Construction
executed between the Contractor and all such Third Parties, as
described in Section 6.
(g) Restricting disclosure of SSI only to those Third Parties that
have complied with the requirements of Section 6.
(h) Maintaining, in the form attached as Exhibit D, a log of copies of
SSI released to Employees and Third Parties as described in Section 7.
(i) Treating and handling SSI with, at a minimum, the same degree of
care that the Contractor uses for its own confidential and proprietary
information.
6. Disclosure to Third Parties. Prior to the disclosure of SSI to any
Third Parties for the Contract, the Contractor shall:
(a) Enter into a Third Party NDA for Construction with such Third
Party. A sample Third Party NDA for Construction is enclosed and
includes the requirement that the Third Party maintain employee and
copy logs and appoint it’s SSIH (see Section 5).
b.
For each such Third Party, submit to the Engineer a copy of a
Third Party NDA for Construction executed between the Contractor
and the Third Party.
(c) Ensure that each such Third Party submits to the District, in the
form of Exhibits A-1 and A-2 to the Third Party NDA for Construction,
a list of all Third Party Employees proposed to be granted access to
SSI or Restricted Areas, and copies of a government issued photo
identification (Photo ID), preferably a driver's license and Social
Security Number (listed in Exhibit A-1 only), for each such Employee
as detailed in Section 2 of the Third Party NDA for Construction.
(d) Obtain written notification from the District that the names of
the Employees submitted by the Third Party have passed the Security
Clearance. The District's written notification will be sent with a
copy of the Third Party's Exhibit A-2 with dates of Security Clearance
provided by the District.
e.
In the form of Exhibit C to this Agreement, maintain a log of
Third Parties, including prospective subcontractors, suppliers,
and consultants submitting a Third Party NDA for Construction. The
log shall include the dates that the Third Parties have completed
their Security Clearance.
The Contractor shall not disclose SSI to any other third parties.
The Contractor shall collect from and securely maintain all SSI,
including work product, as well as all logs, from Third Parties not
retained by the Contractor for performance of work under the Contract
upon notifying such Third Parties that they will no longer be
considered or be engaged for performance of work under the Contract.
7. Copies. The Contractor shall implement safeguards to restrict
copies and reproductions of SSI in any form, including but not limited
to, paper copies and electronically formatted copies. The Contractor's
SSIH shall authorize copies of portions of SSI only as necessary for
the Disclosure Purposes, and shall retrieve all such copies upon
completion of the task for which they were required. Copies and
reproductions of SSI shall not be made for or retained for
distribution to any third party, except for those described in Section
6 above. The Contractor's SSIH shall identify each copy by copy number
and maintain a record of all copies made on the copy log form provided
as Exhibit D. Electronic versions of the documents or data, if any,
shall not be permitted unless approved by the District.
8.
Inappropriate Access to or Loss of SSI. The Contractor agrees that
if at any time the Contractor misplaces or loses control over SSI
or inadvertently provides access to Employees or any third party
or its Employees who have not passed the Security Clearance, the
Contractor shall notify the District immediately (i.e. no later
than 24 hours) upon determining that an unauthorized disclosure or
loss of control of SSI has occurred. The oral notices shall be
given by telephone to Lt. Kevin Franklin, Manager of Security
Programs at (510) 464‑7772. The written notices shall be mailed by
certified mail to:
San Francisco Bay Area Rapid Transit District
300 Lakeside Drive, 18th Floor
Oakland, CA 94612
Attention: Lt. Kevin Franklin, Manager of Security Programs
The District will investigate the facts underlying Contractor’s
unauthorized disclosure or loss of control of SSI. In the event that
the District determines that such unauthorized disclosure or loss of
control constituted an unauthorized disclosure or improper use of SSI
by Contractor, the District may pursue remedies as set forth in
Section 11 as well as retaining the amounts withheld as described in
Section 2 above.
9. Ownership of SSI. The Contractor agrees that all SSI and all copies
of SSI made by Recipient and Third Parties will at all times remain
the property of the District and are owned by the District.
10. Completion of Work. Contractor shall keep all SSI regarding work
performed under the Contract in trust and confidence after the
completion of the Work. Within thirty (30) calendar days after
completion of the Work and Acceptance by District or termination of
the Contract, the Contractor shall return to the District all SSI
received previously from the District and generated by the Contractor
and all Third Parties.
The Contractor shall keep in perpetuity in trust and confidence all
SSI remaining in Contractor's possession. This Contractor's perpetual
obligation shall include full compliance with Sections 4, 5 and 8 of
this Agreement.
11. District Remedies. The Contractor acknowledges that the
unauthorized disclosure or improper use of SSI by the Contractor may
cause irreparable harm to the District and the public. The District
retains all of its legal rights and remedies to enforce this
Agreement. Furthermore, the Contractor acknowledges that the District
is entitled to seek equitable remedies, including temporary and
permanent injunctive relief, without the necessity of posting a bond
or other security, to enforce this Agreement. No remedy or election
under this Agreement shall be deemed exclusive but shall, whenever
possible, be cumulative with all other remedies at law or in equity.
12. Attorneys' Fees. In the event that a suit is necessary to enforce
any of the provisions herein contained, the prevailing party shall be
entitled to reasonable attorneys' fees in addition to costs.
13. Disqualification from Bidding. The Contractor acknowledges that
breach of this Agreement is grounds for the District to disqualify the
Contractor from participation in District contracts.
14. Assignment. The Contractor may not assign any rights or transfer
any obligation under this Agreement without the express written
consent of the District.
15. Invalidity of Agreement. If any provision of this Agreement is
judged to be invalid or unenforceable, the validity of any other
provision shall not be affected, and the invalid or unenforceable
provision will be deemed severable and the remainder of the Agreement
will remain in full force and effect.
16. Notices and Submittals. All notices, submittals and communications
regarding this Agreement shall be given in writing and given by
personal delivery to a representative of the parties or by mailing the
same, postage prepaid, addressed as follows:
District Secretary: Office of the District Secretary
San Francisco Bay Area Rapid Transit District
300 Lakeside Drive, 23rd Floor
Oakland, CA 94612
Attention: Kenneth Duron, District Secretary
Engineer: San Francisco Bay Area Rapid Transit District
300 Lakeside Drive, 17th Floor
Oakland, CA 94612
Attention: Khawaja Zubair
Contractor:
Attention: Project Manager for Contract No. 09EK-130
Any notice given by mail shall be deemed given on the day after that
on which it is deposited in the U.S. Mail.
17. Applicable Law. This Agreement and its interpretation shall be
governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above
written.
San Francisco Bay Area Rapid Transit District
Contractor
By: By:
General Manager or designee
Name:
Title:
EXHIBIT A-1
to
Non-Disclosure Agreement for Release of Security Sensitive Information
for Construction
CONTRACT NO. 09EK-130
SECURITY SCREENING LOG
======================
FOR RELEASE OF SECURITY SENSITIVE INFORMATION
Recipient (Firm Name):
Address:
Telephone Number:
Email:
______________________________________________________________________________
Fax:
________________________________________________________________________________
Recipient’s SSIH:
Employee’s Full Name *
(Including other names used) (Indicate full name of designated SSIH)
Valid Driver’s License Number *
(or other valid government identification, e.g., California
identification card, passport number)
Social Security Number *
Date of Security Clearance
(to be completed by the District)
* Information will be used for Security Screening purposes only.
EXHIBIT A-2
to
Non-Disclosure Agreement for Release of Security Sensitive Information
for Construction
CONTRACT NO. 09EK-130
SECURITY SCREENING LOG
======================
FOR RELEASE OF SECURITY SENSITIVE INFORMATION
Recipient (Firm Name):
Address:
Telephone Number:
Email:
______________________________________________________________________________
Fax:
________________________________________________________________________________
Recipient’s SSIH:
Employee’s Full Name *
(Including other names used) (Indicate full name of designated SSIH)
Valid Driver’s License Number *
(or other valid government identification, e.g., California
identification card, passport number)
Date of Security Clearance
(to be completed by the District)
* Information will be used for Security Screening purposes only.
EXHIBIT B
to
Non-Disclosure Agreement for Release of Security Sensitive Information
for Construction
CONTRACT NO. 09EK-130
NON-DISCLOSURE CONSENT FORM
TO BE EXECUTED BY EMPLOYEE
Recipient (Firm Name):
Employee Name:
Employee Address:
I agree that any information designated as Security Sensitive
Information (“SSI”) pertaining to the San Francisco Bay Area Rapid
Transit District (“District” or “BART”) Contract No. 09EK-130, OAKLAND
EMERGENCY GENERATOR (OEG) SYSTEM, (the “Contract”) will be subject to
the following obligations:
1. I confirm that I have been provided a copy of the Non‑Disclosure
Agreement for Release of SSI for Bidding Purposes between the District
and the Recipient. I confirm that I will comply at all times with the
Recipient’s obligations in relation to the SSI as set out in the
Non‑Disclosure Agreement for Release of SSI for Bidding Purposes and
will not do anything which would or could lead to any of the
Recipient’s obligations in relation to the SSI, or the security of the
SSI, being breached or compromised.
2. I will not disclose or permit disclosure of the SSI, or permit
anyone to use the SSI, without the prior written approval of the
Recipient’s Security Sensitive Information Handler (“SSIH”).
3. The above obligations of confidentiality and non-use will apply to
my work related to preparing a Bid for the Contract, and will continue
to apply without limitation of time after the date of termination of
my work.
4. “Security Sensitive Information” or “SSI” means the Contract
Documents for the Contract, Record Drawings, reports and studies
together with all documents and copies related to the Contract,
including Contract Specifications, drawings, photographs, plans,
designs, and data concerning the District's facilities that are
stamped or otherwise denoted by the District as SSI. Security
Sensitive Information also includes information derived from access
that the District provides to Recipient to view, observe, and inspect
the District facilities that are not open to and not accessible to the
public ("Restricted Areas"), and any and all sketches, notes, and
narratives taken or prepared by Recipient of Restricted Areas. The
Recipient is prohibited from taking photographs of any Restricted
Areas.
Executed by:
Employee Signature Security Sensitive Information Handler (SSIH)
Date: Date:
EXHIBIT C
to
Non-Disclosure Agreement for Release of Security Sensitive Information
for Construction
CONTRACT NO. 09EK-130
LOG OF THIRD PARTIES, INCLUDING PROSPECTIVE SUBCONTRACTORS, SUPPLIERS
AND CONSULTANTS
WITH ACCESS TO SSI
Recipient (Firm Name):
Address:
Telephone Number:
Recipient’s SSIH:
Third Party Firm Name and Address
---------------------------------
Name of Third Party SSIH
Date Third Party Completed Security Clearance
Description of SSI Provided
EXHIBIT D
to
Non-Disclosure Agreement for Release of Security Sensitive Information
for Construction
CONTRACT NO. 09EK-130
LOG OF COPIES OF SECURITY SENSITIVE INFORMATION
Recipient (Firm Name):
Recipient’s SSIH:
Copy Number
Date Copy Made
Description
Employee or Third Party in Receipt of Copy
Date Copy Returned to SSIH
CONTRACT NO. 09EK-130 Non-Disclosure Agreement for Release of SSI for
Construction
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