SCHEDULE 6
NONDISCLOSURE AGREEMENT
This Nondisclosure Agreement (this “Agreement”) is entered into effective as of the
_____ day __________, 2014 (the “Effective Date”) by and between the Massachusetts
Department of Transportation, a body politic and corporate and public instrumentality of the
Commonwealth of Massachusetts established pursuant to M.G.L. Chapter 6C, as amended,
(“MassDOT”), and __________________________________, a _____________ (“Interested
Party”). MassDOT and Interested Party are sometimes referred to herein individually as a
“Party” and collectively as the “Parties”.
WHEREAS, MassDOT has issued a Request for Proposals, dated __________, 2014
soliciting responses from integrated development teams to 1) develop the Massachusetts
Turnpike Parcel 13 air rights (“Parcel 13” or the “Parcel”) in Boston’s Back Bay area and 2)
design and deliver improvements to both the MBTA Hynes Convention Center Green Line
Station (“Hynes Station”) and adjoining Green Line electrical equipment (the “Parcel 13 RFP”);
WHEREAS, MassDOT anticipates making certain sensitive and/or non-public
information (the “Protected Information” as more specifically defined below) available to parties
potentially interested in responding to the Parcel 13 RFP and/or consultants potentially interested
in joining a prospective proposer’s development team; and
WHEREAS, MassDOT is willing to make the Protected Information available only upon
the terms and conditions hereafter expressly set forth.
NOW, THEREFORE, it is hereby agreed as follows:
1. Confidentiality, Nondisclosure.
(a)
Interested Party acknowledges that certain of its personnel and certain of its
project team will be given access to certain Protected Information. The term “Protected
Information” includes, but is not limited to: any and all information made available in the
electronic bid room (the “Bid Room”) pertaining to the existing and potential design, condition,
and operation of the land, air rights and/or facilities located in and around Parcel 13 and Hynes
Station; and any information made available by MassDOT in any other form and designated as
Protected Information
(b)
Interested Party (including its personnel and project team members, as may be
applicable, to whom Protected Information is disclosed) agrees to hold confidential and agrees
not to directly or indirectly, disclose to, publish or use for the benefit of any third parties or for
the benefit of Interested Party any of such Protected Information other than for the above-stated
purpose of conducting due diligence in connection with the preparation of a possible response to
the RFP. Interested Party further covenants and agrees not to undertake any activity that would
require Interested Party to reveal to third parties or otherwise use such Protected Information or
other information that might be derived from such Protected Information for any purpose other
than those authorized herein without first notifying and obtaining the prior consent of MassDOT.
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(c)
Interested Party agrees to maintain all Protected Information in the manner in
which MassDOT directs. In particular, Interested Party agrees to delete and/or destroy any
Protected Information, in a manner respective of the confidential nature of the information (e.g.,
shredding paper files, permanently deleting electronic files), immediately upon the earlier
occurrence of the following events: (1) Interested Party decides that it will not be a part of any
prospective proposer’s team, or it will not prepare and/or submit a response to the Parcel 13
RFP; or (2) Interested Party is notified by MassDOT that it was not selected as the developer of
Parcel 13, as may be applicable.
(d)
Interested Party agrees that, in addition to any other remedies available at law to
MassDOT for a breach of this Agreement, MassDOT shall have the right to (i) specific
performance and injunctive relief in the broadest sense necessary to effect the protection and
rights of MassDOT under this Agreement; and (ii) disqualify Interested Party from the
opportunity to be part of any Parcel 13 RFP proposer’s team and/or to submit a response to the
Parcel 13 RFP and/or to be considered as a prospective proposer the Parcel 13 RFP. Interested
Party also agrees that Interested Party’s failure to perform any of the covenants set forth herein
will cause MassDOT to sustain loss and damages that will be difficult to ascertain and measure,
and for which MassDOT will have no adequate remedy at law. It is therefore reasonable and
necessary that MassDOT be accorded the equitable remedies of specific performance and
injunctive relief without any requirements for a bond.
2. Amendment. This Agreement shall not be modified or amended except by means of a
writing signed by each of the parties to this Agreement.
3. No Assignment. The parties may not assign or delegate their rights or obligations
under this Agreement without first obtaining the written consent of the other. In the event that
Interested Party desires that members of its team be granted access to the Protected Information,
each such team member shall be provided with a copy of this Agreement and be required to
acknowledge receipt thereof. MassDOT reserves the right to require that separate Nondisclosure
Agreements be executed by separate companies, particularly if such separate companies are
affiliated with more than one prospective proposer.
4. Notices. All notices under this Agreement shall be in writing, effective upon receipt
and made by (i) by email; (ii) by facsimile; (iii) by personal service; (iv) by registered mail
return receipt requested; (v) by Federal Express or similar established national overnight delivery
service or email. Notice shall be addressed to each party at its address as set forth below. Either
party may notify the other party of a different address to which notices shall be sent in writing to
the then current address.
5. Severability. If any provision of this Agreement shall under any circumstances be
deemed invalid or inoperative to any extent, it is agreed and understood that such invalidity shall
not invalidate the whole Agreement, but the Agreement shall be construed as not to contain the
provision or provisions deemed invalid or inoperative.
6. Governing Law. The construction and interpretation of this Agreement shall at all
times and in all respects be governed by and construed according to the laws of the
Commonwealth of Massachusetts.
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7. Counterparts. This Agreement may be executed and delivered in any number of
counterparts, all of which, when executed and delivered, shall have the force and effect of an
original.
8. Defined Terms. Any capitalized terms not defined in this Agreement shall have the
meaning set forth in the Parcel 13 RFP.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
[the next page is the signature page]
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IN WITNESS WHEREOF, duly authorized representatives of the Parties have executed
this Nondisclosure Agreement.
MASSDOT
INTERESTED PARTY
By:_____________________________
By:______________________________
Typed Name:_____________________
Typed Name:_______________________
Title:____________________________
Title:_____________________________
Date Signed:______________________
Date Signed:_______________________
Mailing Address:
Mailing Address:
Email: ___________________________
Email: ___________________________
Fax: _____________________________
Fax: _____________________________
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