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Resolution No. 91721 2 3 4 5 6 FA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9172 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT CONCERNING NONDISCLOSURE OF INFORMATION BY AND BETWEEN THE CITY OF VERNON AND THE BNSF RAILWAY COMPANY AND THE LOS ANGELES JUNCTION RAILWAY WHEREAS, the City of Vernon, the BNSF Railway Company ("BNSF") and the Los Angeles Junction Railway ("LA Junction"), a wholly -owned subsidiary of BNSF, are in the process of exploring a potential business relationship for the benefit of the parties in connection with the various operations and properties owned by BNSF and LA Junction in or near the City; and WHEREAS, the City and BNSF and LA Junction desire to preserve land protect their rights by entering into a nondisclosure agreement lwith each other to implement the exchange of information in a manner that preserves the confidentiality and protected status of the documents, materials, and information respecting the discussions. WHEREAS, City staff has recommended that an Agreement Concerning Nondisclosure of Information with BNSF and LA Junction be japproved and executed. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE: CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreement Concerning Nondisclosure of Information with 1 1IBNSF and LA Junction, in substantially the form on file with the Acting 2 IlSecretary. 3 SECTION 3: The City Council of the City of Vernon hereby 4 authorizes the Mayor to execute said Agreement for, and on behalf of, 5 the City of Vernon and the Acting City Clerk is hereby authorized to 6 attest thereto. 7 SECTION 4: The City Council of the City of Vernon hereby 8 authorizes the Acting City Clerk, or his designee, to make whatever 9 nonsubstantive, administrative and/or text changes, upon advice of 10 counsel, to the Agreement. 11 SECTION 5: The City Council of the City of Vernon hereby 12 directs the Acting City Clerk, or his designee, to send one fully 13 executed Agreement to each of the following: 14 BNSF Railway Company Attn: Jerome M. Johnson, Asst. VP Network Rationalization 15 2500 Lou Menk Drive, 3rd Floor 16 Fort Worth, TX 76034 17 Los Angeles Junction Railway Attn: Richard L. Ebel, President 18 3770 E. 26th Street 19 Vernon, CA 90023 20 SECTION 6: The Acting City Clerk of the City of Vernon 21 shall certify to the passage of this resolution, and thereupon and 22 thereafter the same shall be in full force and effect. 23 APPROVED AND ADOPTED this 22"d day of November, 2006. 24 25:7 ��t LEONIS C. mALBURG,Mayor 26 ATT 27 4 28 BRUCE V ALKENHORST, JR. Acting City Clerk - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9172, was duly adopted by the City Council of the City of Vernon at a special meeting of the City Council duly held on Wednesday, November 22, 2006, and thereafter was duly signed by the Mayor of the City of Vernon. l BRUCE MALKENHORST, JR. Acting City Clerk (SEAL) - 3 - v EXHIBIT A AGREEMENT CONCERNING NONDISCLOSURE OF INFORMATION This AGREEMENT is effective as of October 13, 2006, between The BNSF Railway Company ("BNSF") a Delaware corporation with its principal offices located at Fort Worth, Texas, The Los Angeles Junction Railway ("LAX"), a wholly owned subsidiary of BNSF, and The City of Vernon, California ("City") with its principal offices located at 4305 Santa Fe Avenue, Vernon, California 90058. WHEREAS BNSF, LAJ and The City of Vernon intend to hold discussions and exchange information during 2006 and 2007 to explore a potential business relationship(s) for the benefit of both parties or their respective subsidiaries in connection with the proposed restructuring of the Los Angeles Junction Railway Company, a wholly owned subsidiary of BNSF, and the potential sale of various BNSF or LAJ railroad operations and properties in and near the City of Vernon (the "Discussions"); and WHEREAS some of the information exchanged between the parties may be information which the party disclosing the information (the "Disclosing Party") considers confidential, proprietary, and/or trade secret(s) ("Confidential Information"); NOW, THEREFORE, in consideration of the foregoing premises and the mutual and reciprocal promises contained herein, and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Either party, from time to time, may disclose to the other party Confidential Information, including, but not limited to, feature and technical specifications, drawings, data, designs, computer programs, patent applications, documentation, marketing forecasts or other technical or business information which the recipient of the Confidential Information (the "Receiving Party") may use for the purpose of the Discussions. 2. Both parties will designate Confidential Information only as necessary for purposes of the Discussions. In order to be protected as Confidential Information pursuant to this Agreement, all written Confidential Information shall be clearly marked as proprietary and any disclosures made orally shall be identified as Confidential Information by the Disclosing Party at the time of disclosure and a written summary of the Confidential Information so disclosed, specifically identifying that which is confidential and/or proprietary, shall be provided by the Disclosing Party to the Receiving Party within fifteen (15) days of such oral disclosure. 3. With respect to Confidential Information the Receiving Party shall: a. hold the Confidential Information in confidence using procedures no less stringent than those used with respect to its own confidential information, subject to the terms of this Agreement; b. disclose the Confidential Information only to those employees of the Receiving Party having a need to know the Confidential Information in order to participate in or support the Discussions; c. advise such employees of the limitations on the use and disclosure of such Confidential Information; d. use the Confidential Information solely for the purposes of the Discussions stated above, except as may otherwise be mutually agreed upon in writing; e. advise such employees of the limitations on the use and disclosure of such Confidential Information; ff, use the Confidential Information solely for the purposes of the Discussions stated above, except as may otherwise be mutually agreed upon in writing; g. only copy or reproduce the Confidential Information to the extent reasonably necessary for its use of such Confidential Information in accordance with Section 3.d. All copies made of Confidential Information shall be considered originals subject to the restrictions of this Agreement; and h. monitor and control all distribution of Confidential Information. 4. Furthermore, the Receiving Party shall not disclose Confidential Information to any third party without the express written consent of the Disclosing Party or as provided by Section 6 below. The restrictions of this Agreement shall not apply to any information or Confidential Information that: a. was known to the Receiving Party at the time of the disclosure; or b. was (or is) received by the Receiving Party from a third party without restriction and without breach of this Agreement; or c. is disclosed to third parties by the Disclosing Party without restriction; or d. is or becomes publicly available by actions not in violation of this Agreement; or e. is independently developed by the Receiving Party without reference or resort to the Confidential Information; or f. is approved for release by written authorization of the Disclosing Party. 6. The parties agree to exclude the confidentiality obligations of this Agreement with regard to information which is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that the Receiving Party provides the Disclosing Party prompt notice of such request for disclosure and reasonably cooperates with the Disclosing Party's efforts to obtain a protective order. The parties further agree that any exclusion effected pursuant to this provision is authorized only to the extent necessary to allow the Receiving Party to comply with a legal rule or order compelling the disclosure of information and shall not effect a general waiver of the parties' obligations of confidentiality. This Agreement may be terminated by either party upon ten (10) days written notice given to the other party, and otherwise will terminate two (2) years after its effective date as stated above. The obligation to protect the confidentiality of Confidential Information received prior to such termination shall survive the termination of this Agreement for a period of five (5) years; provided, however, that the expiration of such period of five (5) years shall not convert Confidential Information into non -confidential information or otherwise change the character of Confidential Information as all Confidential Information shall retain its confidential nature until such time as one or more of the exceptions in Section 5 become applicable. 8. Nothing contained in this Agreement or in any of the Discussions or disclosures made pursuant thereto shall: a. be interpreted or relied upon by either party as a commitment or intent to purchase or sell any products or services or to engage in any business relationship, contract or future dealing with the other party; b. limit any party's right to provide or offer to provide products or services similar to those which the other party may offer, so long as said party does not violate the obligations imposed by this Agreement; c. be construed as granting or conferring any rights by license or otherwise in any Confidential Information provided by the Disclosing Party to the Receiving Party; or d. prevent either party from entering into similar discussions with unrelated third parties, so long as such discussions do not violate the obligations imposed by this Agreement. 9. Since either party may choose not to do business with the other party in the future, each acknowledges that the other party is not responsible or liable for any business decisions made by either party in reliance upon disclosures made during any meetings between the parties or in reliance on any results of the discussions. Neither this Agreement nor disclosure of Confidential Information shall be construed as creating any obligation of a party to furnish Information to the other party; provided, Confidential Information furnished subject to this Agreement by the disclosing party shall be subject to disclosure by the Receiving Party to any other party. In addition, the Confidential Information may be based in whole or in part on information provided by persons other than the Disclosing Party, the accuracy of which cannot be assured. Consequently, the Confidential Information should not be regarded as a representation by the Disclosing Party that a particular result will be achieved. The parties should not place undue reliance on the Confidential Information and each party agrees to consult its own financial and business experts in order to arrive at its own conclusion about the proposed business arrangement between the parties. The parties agree that no party shall be liable for any statements, opinions, conclusions or information arising out of or derived from the Confidential Information or for any omission from the Confidential Information. 10. The parties also understand and agree that this Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind and that no contract or agreement providing for a transaction, other than that regarding confidentiality as set forth herein, with any party shall be deemed to exist between any of the parties unless and until a definitive Transaction Agreement, defined below, has been executed and delivered, and the parties hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with a possible transaction with another party unless and until two or more parties shall have entered into a definitive Transaction Agreement. The parties also agree that unless and until a definitive Transaction Agreement between two or more of the parties has been executed and delivered, the parties proposing to enter into such definitive Transaction Agreement shall have no legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive Transaction Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on any part. The parties further understand that subject to the terms and conditions of this Agreement (i) a party shall be, free to conduct the process for a possible transaction with another party as in their sole discretion shall determine (including, without limitation, negotiating with any prospective parties and entering into a definitive Transaction Agreement without prior notice to the other parties or any other person), (ii) any procedures relating to such possible transaction may be changed at any time without notice to the other parties or any other person, (iii) the parties reserve the right, in their sole and absolute discretion, to reject any and all proposals and to terminate discussion and negotiations a with another party, or directly or indirectly involving another party, at any time, and (iv) any party shall not have any claims whatsoever against another party, or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to a possible transaction agreement with another party (other than those as against the parties to a definitive Transaction Agreement in accordance with the terms thereof). This paragraph cannot be waived or amended except by written consent, of either party and shall in no way minimize, mitigate or abate the parties' confidentiality obligations as set forth herein. 11. Each party understands that the other may currently or, in the future, be developing information internally or receiving information from other parties that may be similar to that received from the other. Accordingly, nothing in this Agreement will be construed as a representation or inference that either party will not develop or obtain technology, information, or products that, without violation of this Agreement, are similar to or compete with the technology, information, or products contemplated by the other's Confidential Information. Furthermore, nothing in this Agreement shall be construed to limit either party's right to assign or reassign its employees in any way. 12. The Confidential Information shall be deemed and remain the property of the Disclosing Party and, upon request by the Disclosing Party, the Receiving Party shall promptly, and in any event, not later than fourteen (14) days after such request, return all Confidential Information (including all copies made thereof) to the Disclosing Party or destroy such Confidential Information, provided, however, that the Receiving Party may retain one copy of the Confidential Information in the files of its legal counsel for archival purposes only to provide a record of disclosure. Upon return or destruction of all Confidential Information, the Receiving Party shall promptly provide the Disclosing Party with written confirmation that all such actions have been taken to return or destroy all Confidential Information tendered to it pursuant to this Agreement. 13. This Agreement shall benefit and be binding upon the parties hereto and can not be sold, assigned or otherwise transferred except as may be mutually agreed in writing by the parties. Notwithstanding the foregoing, either party may assign their rights or obligations in whole under this agreement pursuant to a sale or transfer of all or substantially all of a party's assets pursuant to merger, sale, consolidation, combination, or order or decree of governmental authority, provided the assignee shall have assumed all of the obligations under this agreement in writing. The parties may, on a need to know basis, disclose Confidential Information to representatives of their parent companies and to any wholly owned or controlled subsidiaries of the parties provided such party continues to be bound by the obligations under this Agreement including liability for the actions or inactions of any such representatives and its parent and/or subsidiary(ies) as the case may be has/have also agreed in writing prior to such disclosure to be bound by the terms of this Agreement. 14A. EACH DISCLOSING PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO ANY INFORMATION OR CONFIDENTIAL INFORMATION FURNISHED BY THAT DISCLOSING PARTY TO THE OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. 14B. Neither party makes any representations with regard to the accuracy of information or Confidential Information disclosed in connection with the Discussions or accepts any responsibility for any expenses, losses, or liabilities incurred by or actions undertaken by the Receiving Party as a result of its receipt of information or Confidential Information in the course of the Discussions. 14C. Neither party here shall use any information received pursuant to this agreement in any manner inconsistent with applicable law. Any party receiving any information from BNSF about the nature, kind, quantity, destination, consignee, or routing of property tendered or delivered to BNSF for transportation is placed on notice that subject information shall be deemed Confidential Information under this agreement. Receipt of any such information shall be made subject to, and Recipient shall comply with the terms of 49 U.S.C. Section 11904, as same may be amended from time to time. 15. This Agreement constitutes the entire agreement of the parties with respect to its subject matter, and shall benefit and be binding upon the parties hereto. This Agreement supersedes all previous communications, representations, and understandings with regard to the subject matter contained herein and may not be modified or amended unless in writing signed by both parties. 16. Nothing herein shall obligate or otherwise commit the parties in any way, directly or indirectly, to initiate, produce or complete the Discussions or any other observation, study, analysis or report of any product or service, or any aspect thereof, or to take any other action with respect to such product or service; and nothing herein shall obligate or otherwise commit the Receiving Party or any other person or entity to purchase any product or service. 17. Each party agrees not to publish information concerning the entry of this Agreement nor any Discussions conducted pursuant hereto without the other party's express written consent. Neither party shall use the name or trademark of the other party in connection with any advertising or promotion without the express written consent of the other party. 18. This Agreement and the parties' rights and obligations hereunder shall be governed by the laws of the State of Texas, except for its rules with respect to the conflict of laws. 19. Each party warrants that it does not intend to, and will not knowingly, ship or transmit any information or Confidential Information it may receive, directly or indirectly, under this Agreement to any other country, except to the extent permitted by applicable law. 20. The parties hereto acknowledge and agree that monetary damages alone may not adequately remedy a breach of the terms of this Agreement. Without prejudice to any other rights or remedies available at law. or in equity, either party may be entitled to enforce the terms hereof pursuant to specific performance or other injunctive relief. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first set forth above. City: City of Vernon Leonis C. Malburg, Mayor ATTE T!! t Bruce V. M 1 enhorst, Jr., Acting City Clerk Los An eles Junction By: Signature Name: Richard L. Ebel Title: President Date: %t l t 7 10 6 Signature Name: Richard L. Ebel Title: Date: General Manager «1f11o6 APPRO D AS TO FORM: Eric T. Fresch,City Attorney Attested to and approved as to form by the City Council of the City of Vernon, California 6 LEONIS C. MALBURG Mayor THOMAS A. YBARRA r ,� Mayor Pro-Tem rJ WM. "BILL" DAVIS I eve Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK 4305 Santa Fe Avenue, Vernon, California 90058 Councilman Telephone (323) 583-8811 December 7, 2006 MARK C. WHITWORTH Fire Chief LEWIS J. POZZEBON Director of Environmental Health S. KEVIN WILSON Director of Community Services SHARON L. DUCKWORTH City Treasurer DONAL O'CALLAGHAN Director of Light & Power BNSF Railway Company Los Angeles Junction Railway Attn: Mr. Jerome M. Johnson, Attn: Mr. Richard L. Ebel, Asst. VP Network Rationalization President 2500 Lou Menk Drive, 3rd Floor 3770 E. 26th Street Fort Worth, TX 76034 Vernon, CA 90023 Re: Nondisclosure Agreement By and Between the City of Vernon and the BNSF Railway Company and the Los Angeles Junction Railway Dear Sirs: Transmitted herewith is an executed agreement, as referenced above, approved by City Council on November 22, 2006, through Resolution No. 9172. If you have any questions regarding this matter, please call Mr. Samuel K. Wilson, at (323) 583-8811 ext. 245. 3 VpW.truly yours, Nelly Gi n Deputy City Clerk NG:dr c: Samuel K. Wilson Resolution No. 9172 Agreement File No. 06-124 T'IduAlud t wubu*iut