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HomeMy WebLinkAbout2011-268 Nondisclosure Agrmt - COA-ACH CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT("Agreement") is made and entered into as of Octobertp, 2011 ("Effective Date"), by and between the City of Ashland, Oregon, an Oregon municipality (the "City") and Ashland Community Healthcare Services, an Oregon nonprofit public benefit corporation ("ACHS"). The City and ACHS are collectively referred to as the "Parties". RECITALS A. WHEREAS, ACHS is evaluating strategic alternatives related to an affiliation with a strategic partner (the "Affiliation") that would advance the quality and efficiency of, and ensure continued access to, the healthcare services available to residents of Ashland and the surrounding geographic area (the "Community"): B. WHEREAS, in connection with planning for a possible Affiliation, ACHS and the City, through the City Administrator, the City Council as a group, or the individual Councilor appointed to serve as liaison to the ACHS Board of Directors and its Executive Committee, wish to engage in discussions related to the City's interest in certain ACHS assets and the continued availability of healthcare services to the Community (the "Discussions"); C. WHEREAS, in conducting such Discussions, ACHS may disclose to the City certain proprietary and confidential information; D. WHEREAS, the Parties wish to ensure that such information is used only in connection with the Discussions and to protect the proprietary and confidential nature of such information in accordance with the terms, conditions, and covenants set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Confidential Information. (a) "Confidential Information" means any financial, operational, business, or service line related information, strategic planning information, de-identified patient information, valuation information, documents provided to or received from potential Affiliation partners, trade secrets, or other proprietary or confidential information disclosed by ACHS to the City, whether in oral, written, or electronic form, or information derived from or based upon the foregoing. (b) Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by ACHS, or (ii) becomes publicly known and made generally available after disclosure by ACHS through no action or inaction of the City. -I- SEADOCS:440003.2 2. Provision and Use of Confidential Information. ACHS may provide to the City, in confidence, Confidential Information for purposes of the Discussions, and ACHS expressly requests that the City (i) agree to use the Confidential Information exclusively for the purposes of carrying out the Discussions and (ii) agree in good faith not to disclose the Confidential Information. Confidential Information related to a possible Affiliation is and will be competitive in nature given that a number of possible candidates will be invited to submit proposals related to the Affiliation. ACHS and the City wish to ensure that any Affiliation transaction will advance the quality and efficiency of, and ensure continued access to, the healthcare services available to the residents of the Community; therefore, improper use or disclosure of the Confidential Information could disadvantage ACHS and cause the interests of the residents of the Community to suffer. 3. Unauthorized Use and Non-disclosure. On the basis that improper use or disclosure of the Confidential Information would disadvantage ACHS and cause the public interest to suffer, the City agrees not to use any Confidential Information for any purpose except to conduct the Discussions, and not to disclose any Confidential Information to third parties, including the City's employees and consultants, except those employees and consultants of the City who have a need to know the Confidential Information in order to facilitate, participate in, or evaluate the Discussions. The City agrees to give prompt written notice of any unauthorized disclosure of Confidential Information to ACHS. 4. Maintenance of Confidentiality. The City agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information. The City agrees that it shall not make any copies of the Confidential Information unless previously approved by ACHS. The City shall reproduce ACHS's proprietary rights notice, if any, on any such approved copies, in the same manner in which such notices were set forth in or on the original. Without limiting the foregoing, the City shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and consultants who have access to Confidential Information agree to use and maintain the confidentiality of Confidential Information in accordance with this Agreement prior to any disclosure of Confidential Information to such employees and consultants. 5. Public Records Law; Exemption; Requests for Disclosure. Both Parties acknowledge that, as a municipal entity, the City is subject to the Oregon Public Records Law, ORS 192.410 — 192.505. The Parties however also acknowledge that the Confidential Information is exempt from disclosure under such Law. In the event the City is required under the Public Records Law to disclose any Confidential Information, it will promptly notify ACHS so that ACHS has a reasonable opportunity to prevent disclosure of its Confidential Information. The City will not be considered in breach of this Agreement by complying with the Public Records Law. G. Applicability. Each party agrees that the obligations of this Agreement apply to all Confidential Information disclosed by ACHS to the City in connection with the Discussions, including that exchanged prior to the Effective Date hereof. 7. No Obligation. Nothing herein shall obligate ACHS to disclose Confidential Information, to continue Discussions, or to proceed with an Affiliation. -2- SEADOCS:440003.2 8. Return of Materials. All Confidential Information disclosed by ACHS pursuant to this Agreement, and all copies thereof, shall be and remain the property of ACHS. The City shall either return to ACHS or destroy all Confidential Information in the City's control or possession, immediately and in accordance with the written request of ACHS. The City agrees not to retain any copies or extracts of Confidential Information disclosed by ACHS. 9. Term. The obligations of each Party hereunder shall survive the termination of Discussions or the conclusion of an Affiliation transaction, if any. 10. Remedies. Because of the unique proprietary nature of the Confidential Information, the Parties understand and agree that remedies at law for a material breach of the obligations under this Agreement will be inadequate, and that ACHS shall, in the event of such a breach, be entitled to equitable relief, including, without limitation, preliminary and permanent injunctive relief. it. Successors. This Agreement shall bind and inure to the benefit of the Parties hereto, their successors, and permitted assigns. 12. Assignability. This Agreement or any Confidential Information disclosed hereunder shall not be assigned or transferred by either Party without the prior written approval of the other Party. 13. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Oregon, without reference to conflict of laws principles. Venue for any action or proceeding arising out of this Agreement shall be Jackson County, Oregon. 14. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, express or implied, written or oral. 15. Waiver; Amendment. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties hereto. IN WITNESS WHEREOF,the Parties hereto have executed this Agreement effective as of the date first set forth above. CITY OF ASHLAND, OREGON ASHLAND COMMUNITY HEALTHCARE SERVICES By: i By: UJAR Mark E. Marchetti � President & Chief Executive Officer Its: It/10.1AOY -3- SeADOCS:440003.2