HomeMy WebLinkAbout2009-162 Confidentiality Argmt - Union Pacific
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CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement is made and entered into this..Lhtday of
~~ , 2009, by and between UNION PACIFIC RAILROAD COMPANY, a
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Delaware corporation (hereinafter "UP") and the city of ASHLAND, OR (hereinafter
referred to as "CITY"):
RECITALS:
WHEREAS, CITY and UP desire to begin discussion regarding the
possible purchase and operation of UP's Siskiyou Branch from Milepost
425.90 near Belleview, OR to Milepost 346.00 near Black Butte, CA
(hereinafter referred collectively to as the "Line"); and
WHEREAS, UP will be providing information to CITY to facilitate
discussions and/or negotiations, which information is of a proprietary
commercial nature, including but not limited to information consisting of data
pertaining to traffic, markets, finance, operations, maintenance, investment,
equipment, cost or price, as well as other information or data.
AGREEMENT:
NOW, THEREFORE, in consideration of commencing negotiations and
discussions and UP providing information and data, the parties agree as follows:
1. CITY agrees that all information provided by UP to facilitate discussions and
negotiations pertaining to the purchase and operation of the Line, including but not limited
to data containing traffic, market, financial, operating, maintenance, investment,
equipment, cost, price or labor information, as well as any other data, will not be disclosed
to any person, corporation, entity or individual, not an officer or director of CITY, without
the prior written consent of UP.
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2. CITY further agrees and acknowledges that, except as otherwise provided
herein, the above described data that may be provided by UP is of a confidential and
proprietary nature, the disclosure of which would commercially injure UP. The
confidentiality and non-use obligations of this Agreement shall not apply to information
which CITY is able to demonstrate:
(a) is known to CITY prior to receipt from UP as shown by a written
record, provided CITY promptly notifies UP of such belief and
supplies UP with written evidence to support such belief;
(b) is or becomes part of the public domain through no act by or on
behalf of CITY; or
(c) is lawfully received by CITY from a third party having a right to
disclose it to CITY.
3. CITY agrees to take all reasonable measures to assure the continuous
confidentiality and protection of information provided by UP in connection with discussions
and negotiations relating to the operation of the Line.
4. CITY further agrees that it will take no action which will adversely affect or
diminish UP's proprietary interest in any information provided by UP, nor will any
information provided by UP under this Agreement be used for the purpose of generating
data, reports or otherwise used by CITY for any purpose other than for the purpose of
discussions or negotiations concerning the operation of the Line, and shall not be used for
any commercial or competitive purpose.
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5. Adequate instructions shall be issued by CITY to all employees, officers and
directors of CITY as necessary to satisfy the proprietary obligations of CITY.
6. If CITY hires or uses consultants or advisors who are not solely employees,
officers or directors of CITY, any information provided by UP to CITY shall not be provided
to such advisors or consultants unless UP has given its consent in writing pursuant to
Section 1 hereof and such advisors or consultants agree in writing to adhere to all the
provisions of this Agreement.
7. The materials and information provided by UP to CITY shall be returned to
UP, including any and all copies thereof, accompanied with a certification and affidavit that
all such information and copies thereof have been returned upon the earlier of request of
UP or termination of negotiations or discussions, whether or not an agreement between
CITY and UP is entered into concerning the operation of the Line.
8. CITY agrees that UP shall have the right to enjoin CITY in any court of
competent jurisdiction, in addition to any other remedy at law, for breach of the terms of
this Confidentiality Agreement. CITY expressly agrees to pay all reasonable costs and
attorneys' fees incurred by UP in order to enforce CITY's obligations under this Agreement,
regardless of whether litigation is commenced or prosecuted to a judgment.
9. All the terms contained in this Confidentiality Agreement shall survive
completion of discussions and negotiations whether or not the parties enter into an
agreement covering the operation of the Line.
10. In the event that CITY is requested in any judicial or administrative
proceeding to disclose any confidential information, CITY shall promptly notify UP of such
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request so that UP may resist such disclosure or seek an appropriate protective order or
other remedy. If, in the absence of such a protective order or other remedy, CITY is
nonetheless compelled to disclose confidential information, CITY may disclose such
confidential information without liability hereunder; provided, however, that CITY gives UP
written notice of the confidential information to be disclosed as far in advance of disclosure
as is practicable and, upon UP's request and at CITY's expense, CITY uses its best efforts
to obtain assurances that confidential treatment will be accorded to such confidential
information.
11. This Agreement shall be governed by the laws of the State of Nebraska.
12. No modification of this Agreement shall be effective unless made in writing
and signed by UP and CITY.
13. This Agreement constitutes the entire understanding between UP and CITY
concerning the subject matter of this Agreement and cancels and supersedes any prior
understandings, whether written or oral, with respect thereto.
14. This Agreement shall become effective upon the date of this Agreement.
IN WITNESS WHEREOF, UP and CITY have duly executed this Agreement
as of the date first herein written.
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UNION PACIFIC RAILROAD COMPANY,
By ~~'n1~
Title: (Yll" - :.J~ .fJud~
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