Resolution No. 89621
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RESOLUTION NO. 8962
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
MUTUAL NON -DISCLOSURE AGREEMENT BY AND BETWEEN THE
CITY OF VERNON AND TENASKA, INC.
WHEREAS, to facilitate discussions regarding the possibility
of a mutually beneficial business relationship regarding the
construction of a power plant, the City of Vernon and Tenaska, Inc.
("Tenaska") desire to enter into a confidentiality agreement setting
forth the terms and conditions under which certain confidential
information and documents will be exchanged by the parties; and
WHEREAS, the City of Vernon desires to preserve and protect
its rights by entering into such a confidentiality agreement with
Tenaska in a manner that preserves the confidentiality and protected
status of the documents, materials, and information to be exchanged.
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 Mutual Non -Disclosure Agreement with Tenaska, a copy of
which is attached hereto as Exhibit A and incorporated herein by
reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor to execute said Agreement for, and on behalf of,
the City of Vernon and the Acting City Clerk is hereby authorized to
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attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to forward one fully
executed original to the Chief Assistant City Attorney for processing.
SECTION 5: The Acting City Clerk of the City of Vernon shall I!,
certify to the passage of this resolution, and thereupon and thereafter
the same shall be in full force and effect.
APPROVED AND ADOPTED this lst day of February, 2006.
ATTEST•
BRUCE V. MALKENHORST, JR.
Acting City Clerk
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LEONIS C. D*LBURG,f Mayor
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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. 8962, was duly adopted by the City Council of the City
of Vernon at a regular meeting of.the City Council duly held on
Wednesday, February 1, 2006, and thereafter was duly signed by the
Mayor of the City of Vernon.
(SEAL)
BRUCE V. MALKENHORST, JR.
Acting City Clerk
- 3 -
EXHIBIT
0
MUTUAL NON -DISCLOSURE AGREEMENT
This Mutual Non -Disclosure Agreement ("Agreement") is entered into as of
Twos-M A Y 2006 ("Effective Date') by and between the City of Vernon, a municipal
corporation, having a principal place of business at 4305 Santa Fe Avenue, Vernon, CA 90058
("City") and Tenaska, Inc., a Delaware corporation, having a principal place of business at 1044
North 115t' Street, Omaha, NE 68154 ("Investor"). City and Investor desire to engage in non-
exclusive discussions in connection with the possible establishment of a business relationship
between them related to the construction of a power plant in the City of Vernon (the
"Transaction"), and to exchange, for the sole purpose of evaluating the passibility of such a
relationship, certain confidential information and documents. The parties acknowledge and
agree that the sole reason for their exchanging confidential information is to facilitate their
discussions of a possible mutually beneficial relationship, and the use or disclosure of any of
such shared confidential information for any other purpose is wrongful and in violation of the
terms of this Agreement.
To further specifically protect their confidential information, the parties hereby agree as
follows:
1. Definition of ti"Wnnation. The tern "Confidential Information"
shall mean (a) all non-public information disclosed in writing, dials, computers, emails, or
any other form or medium by either party or a parry's employees, agents, consultants, attorneys
and other representatives (collwAvely, the "Related Parties'), whether or not marked as
"Confidential" or "Proprietary"; (b) all non-public information disclosed by a party or one of the
Related Parties in the course of an oral exchange, negotiation, meeting, or conversation; (c) all
information provided in any term sheets, memorandum, letters of irrtevt� or other correspondence
or conversations related to the potential business arrangement between the parties; and (d) the
existence and terms of this Agreement, in each case in connection with evaluation, negotiation or
implementation of the Transaction. Notwithstanding anything contained in this Agreement to
the contrary, the limitations and prohibitions on use, duplication and disclosure of Confidential
Information as set forth in this Agreement shall apply to any and all information disclosed in
writing or orally to either party prior to the date of this Agreement notwithstanding the fact that
such disclosure occurred prior to the date of this Agreement.
2. NondisolMM Ud Nike Obligations. Each of the parties, as Recipient, agrees
that such Recipient will not, directly or indirectly, on its own or by, for, or through any other
person or entity, use, dissemilFnate, or in any way disclose any Confidential Information of the
other party, as Discloser, to any person, firm or business, except to the extent necessary for
internal evaluations in connection with negotiations, discussions, and consultations with
personnel or authorized representatives of such Discloser in furtherance of the purpose stated
above. Furthermore, the existence of any business negotiations, discussions, consultations or
agreements in progress between the parties shall not be released to any public media without
written approval of both parties, Each of the parties, as Recipient, agrees that such Recipient
shall treat all Confidential Information of the other party, as Discloser, with the same degree of
care as such Recipient accords to such Recipient's own Confidential Information, but in no case
less than reasonable care. Each of the parties, as Recipient, agrees that such Recipient shall
disclose Confidential Information of the other party, as Discloser, only to those of such
01910/0035 132795.1
Recipient's employees, officers, directors, agents and advisors ("Representatives") who need to
know such information, and such Recipient certifies that such Recipient's Representatives
previously agreed, either as a. condition to employment or in order to obtain the Confidential
Information of the Discloser, to be bound by terms and conditions substantially similar to those
terms and conditions applicable to such Recipient under this Agreement. Each party shall be
responsible to ensure that its Representatives comply with the requirements of this Agreement.
Each of the parties, as Recipient, shall immediately give notice to the other party, as Discloser, of
any unauthorized use or disclosure of Discloser's Confidential Information. Each of the parties,
as Recipient, agrees to assist the other party, as Discloser, in remedying any such unauthorized
use or disclosure of Discloser's Confidential Information.
3. Exclusions &M NQUdiSLosure and nMsg Obiigg&o, ; Tenn of Obligations.
The obligations of each of the parties, as Recipient, with respect to any portion of the
Confidential Information of the other party, as Discloser, shall not apply to such portion that
such Recipient can document: (a) was in the public domain at or subsequent to the time such
portion was communicated to such Recipient by such Discloser through no fault of such
Recipient, (b) was rightfully in such Recipient's possession free of any obligation of confidence
at or subsequent to the time such portion was communicated to such Recipient by such Discloser,
(c) was developed by employees or agents of such Recipient independently of and without
reference to any information communicated to such Recipient by such Discloser, or (d) was
communicated by such Discloser to an unaffiliated third party free of any obligation of
confidence. A disclosure by each of the parties, as Recipient, of Confidential Information of the
other party, as Discloser, either (a) in response to a valid order by a court or other governmental
body, (b) otherwise required by law; or (c) necessary to establish the rights of either party under
this Agreement, shall not be a breach of this Agreement by such Res~ipicnt or a waiver of
confidentiality for other purposes, provided, however, such Recipient shall provide prompt prior
written notice thereof to such Discloser to enable such Discloser to seek a protective order or
otherwise prevent such disclosure. The obligations of the parties shall continue for a period of
two (2) years from the Elective Date unless earlier terminated as described in this Paragraph 3.
4. Owners ' = of C,oddential Informatigg ad QJbZ Materials. All
Confidential information of each of the parties, as Discloser, shall remain the property of such
Discloser. At such Disclosees request and no later than fifteen (15) days after such request, such
Recipient shall promptly deliver to such Discloser all tangible media of expression in such
Recipient's possession or control to the extent that such tangible media incorporate any of such
Discloser's Confidential Information, and written certification of such Recipient's compliance
with such Recipient's obligations under this sentence.
5. Goverging Law. This Agreement shall be governed in all respects by the laws of
the State of California, as such laws are applied to agreements entered into and to be performed
entirely within California between California residents. Each of the parties irrevocably consents
to the exclusive personal jurisdiction of the federal and state courts located in California, as
applicable, for any matter arising out of or relating to this Agreement, except that in actions
seeking to enforce any order or any judgment of such federal or state courts located in California,
such personal jurisdiction shall be nonexclusive.
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01910=35 132795.1
6. S v it Wit. If any provision of this Agreement is held by a court of law to be
illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly
as possible the same effect as the original provision, and (ii) the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be affected or impaired
thereby.
7. Waiver; Ate gQft t+s , Modification. No term or provision hereof will be
considered waived by either party, and no breach excused by either party, unless such waiver or
consent is in writing signed by the party against whom such waiver or consent is asserted. The
waiver by either party of, or consent of either party to, a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of, consent to, or
excuse of any other or subsequent breach by the other party. This Agreement may be amended
or modified only by mutual written agreement.
8. In
unctive Relief. A breach or threatened breach by either party of any of the
promises or agreements contained herein will result in irreparable and continuing damage to the
other party for which there will be no fully adequate remedy at law, and such other party shall be
entitled to injunctive relief, a decree for specific performance, and such other relief as may be
proper (including monetary damages if appropriate) without the need to post a bond or other
security, and without the need to prove damages.
9. Attorneys' Fete. If any action or proceeding is brought to interpret or enforce this
Agreement or any of the relations between the parties in any way Wising out of or in connection
with their obligations hereunderregardless of whether such action or proceeding is prosecuted to
judgment and in addition to any other remedy, the non -prevailing party shall pay to the
prevailing party the reasonable attorneys' fetes and costs incurred by the wailing party.
10. Entire Aareemernt. This Agreement constitutes the entire agreement with respect
to the matters described herein and supersedes all prior or contemporaneous oral or written
agreements concerning such matters.
11. Neaot anc►ns. The parties are entering into this Agreement to discuss a possible
business relationship, and thus is no obligation on the part of the parties to proceed with
negotiations, to enter into a definitive agreement, or to establish a business relationship. Unless
and until a definitive agreement is signed by the parties, neither party has any obligation or
liability to the other, except in connection with Confidential Information, as set forth in this
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01910/0035 132795.1
s
Agreement. Any discussions undertaken by the parties are non-exclusive.
Executed as of the date first written above.
City of Vernon Tenaska, Inc.
By:r i
By: Leonis C. Malburg, Mayor Name: —
Attest:
Title: Via &t je.► t 04 fix
Bruce V. Malkenhorst, Jr.
Acting City Clerk
Approved as to Form
By:
Eric T. Fresch, City Attorney
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01910/0035 132795.1
SUPPORTING
DOCUMENTS
MUTUAL NON -DISCLOSURE AGREEMENT
This Mutual Non -Disclosure Agreement ("Agreement') is entered into as of
TR.s,*.y A Y , 2006 ("Effective Date") by and between the City of Vernon, a municipal
corporation, having a principal place of business at 4305 Santa Fe Avenue, Vernon, CA 90058
("City") and Tenaska, Inc., a Delaware corporation, having a principal place of business at 1044
North 115th Street, Omaha, NE 68154 ("Investor"). City and Investor desire to engage in non-
exclusive discussions in connection with the possible establishment of a business relationship
between them related to the construction of a power plant in the City of Vernon (the
"Transaction"), and to exchange, for the sole purpose of evaluating the possibility of such a
relationship, certain confidential information and documents. The parties acknowledge and
agree that the sole reason for their exchanging confidential information is to facilitate their
discussions of a possible mutually beneficial relationship, and the use or disclosure of any of
such shared confidential information for any other purpose is wrongful and in violation of the
terms of this Agreement.
To further specifically protect their confidential information, the parties hereby agree as
follows:
1. Definition of Confidential Information. The term "Confidential Information"
shall mean (a) all non-public information disclosed in writing, diagrams, computers, emails, or
any other form or medium by either party or a party's employees, agents, consultants, attorneys
and other representatives (collectively, the "Related Parties"), whether or not marked as
"Confidential" or "Proprietary"; (b) all non-public information disclosed by a party or one of the
Related Parties in the course of an oral exchange, negotiation, meeting; or conversation; (c) all
information provided in any term sheets, memorandum, letters of intent, or other correspondence
or conversations related to the potential business arrangement between the parties; and (d) the
existence and terms of this Agreement, in each case in connection with evaluation, negotiation or
implementation of the Transaction. Notwithstanding anything contained in this Agreement to
the contrary, the limitations and prohibitions on use, duplication and disclosure of Confidential
Information as set forth in this Agreement shall apply to any and all information disclosed in
writing or orally to either party prior to the date of this Agreement notwithstanding the fact that
such disclosure occurred prior to the date of this Agreement.
2. Nondisclosure and Nonuse Obligations. Each of the parties, as Recipient, agrees
that such Recipient will not, directly or indirectly, on its own or by, for, or through any other
person or entity, use, disseminate, or in any way disclose any Confidential Information of the
other party, as Discloser, to any person, firm or business, except to the extent necessary for
internal evaluations in connection with negotiations, discussions, and consultations with
personnel or authorized representatives of such Discloser in furtherance of the purpose stated
above. Furthermore, the existence of any business negotiations, discussions, consultations or
agreements in progress between the parties shall not be released to any public media without
written approval of both parties. Each of the parties, as Recipient, agrees that such Recipient
shall treat all Confidential Information of the other party, as Discloser, with the same degree of
care as such Recipient accords to such Recipient's own Confidential Information, but in no case
less than reasonable care. Each of the parties, as Recipient, agrees that such Recipient shall
disclose Confidential Information of the other party, as Discloser, only to those of such
01910/0035 132795.1
Recipient's employees, officers, directors, agents and advisors ("Representatives") who need to
know such information, and such Recipient certifies that such Recipient's Representatives
previously agreed, either as a condition to employment or in order to obtain the Confidential
Information of the Discloser, to be bound by terms and conditions substantially similar to those
terms and conditions applicable to such Recipient under this Agreement. Each party shall be
responsible to ensure that its Representatives comply with the requirements of this Agreement.
Each of the parties, as Recipient, shall immediately give notice to the other party, as Discloser, of
any unauthorized use or disclosure of Discloser's Confidential Information. Each of the parties,
as Recipient, agrees to assist the other party, as Discloser, in remedying any such unauthorized
use or disclosure of Discloser's Confidential Information.
3. Exclusions from Nondisclosure and Nonuse Obligations, Terra of Obligations.
The obligations of each of the parties, as Recipient, with respect to any portion of the
Confidential Information of the other party, as Discloser, shall not apply to such portion that
such Recipient can document: (a) was in the public domain at or subsequent to the time such
portion was communicated to such Recipient by such Discloser through no fault of such .
Recipient, (b) was rightfully in such Recipient's possession free of any obligation of confidence
at or subsequent to the time such portion was communicated to such Recipient by such Discloser,
(c) was developed by employees or agents of such Recipient independently of and without
reference to any information communicated to such Recipient by such Discloser, or (d) was
communicated by such Discloser to an unaffiliated third party free of any obligation of
confidence. A disclosure by each of the parties, as Recipient, of Confidential Information of the
other party, as Discloser, either (a) in response to a valid order by a court or other governmental
body, (b) otherwise required by law, or (c) necessary to establish the rights of either party under
this Agreement, shall not be a breach of this Agreement by such Recipient or a waiver of
confidentiality for other purposes; provided, however, such Recipient shall provide prompt prior
written notice thereof to such Discloser to enable such Discloser to seek a protective order or
otherwise prevent such disclosure. The obligations of the parties shall continue for a period of
two (2) years from the Effective Date unless earlier terminated as described in this Paragraph 3.
4. Ownership and Return of Confidential Information and Other Materials. All
Confidential Information of each of the parties, as Discloser, shall remain the property of such
Discloser. At such Discloser's request and no later than fifteen (15) days after such request, such
Recipient shall promptly deliver to such Discloser all tangible media of expression in such
Recipient's possession or control to the extent that such tangible media incorporate any of such
Discloser's Confidential Information, and written certification of such Recipient's compliance
with such Recipient's obligations under this sentence.
5. Governing Law. This Agreement shall be governed in all respects by the laws of
the State of California, as such laws are applied to agreements entered into and to be performed
entirely within California between California residents. Each of the parties irrevocably consents
to the exclusive personal jurisdiction of the federal and state courts located in California, as
applicable, for any matter arising out of or relating to this Agreement, except that in actions
seeking to enforce any order or any judgment of such federal or state courts located in California,
such personal jurisdiction shall be nonexclusive.
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01910/0035 132795.1
6. Severability. If any provision of this Agreement is held by a court of law to be
illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly
as possible the same effect as the original provision, and (ii) the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be affected or impaired
thereby.
7. Waiver: Amendment, Modification. No term or provision hereof will be
considered waived by either party, and no breach excused by either party, unless such waiver or
consent is in writing signed by the party against whom such waiver or consent is asserted. The
waiver by either party of, or consent of either party to, a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of, consent to, or
excuse of any other or subsequent breach by the other party. This Agreement may be amended
or modified only by mutual written agreement.
8. Injunctive Relief. A breach or threatened breach by either party of any of the
promises or agreements contained herein will result in irreparable and continuing damage to the
other party for which there will be no fully adequate remedy at law, and such other party shall be
entitled to injunctive relief, a decree for specific performance, and such other relief as may be
proper (including monetary damages if appropriate) without the need to post a bond or other
security, and without the need to prove damages.
9. Attorneys' Fees. If any action or proceeding is brought to interpret or enforce this
Agreement or any of the relations between the parties in any way arising out of or in connection
with their obligations hereunder, regardless of whether such action or proceeding is prosecuted to
judgment and in addition to any other remedy, the non -prevailing party shall pay to the
prevailing party the reasonable attorneys' fees and costs incurred by the prevailing party.
10. Entire Agreement. This Agreement constitutes the entire agreement with respect
to the matters described herein and supersedes all prior or contemporaneous oral or written
agreements concerning such matters.
11. Negotiations. The parties are entering into this Agreement to discuss a possible
business relationship, and there is no obligation on the part of the parties to proceed with
negotiations, to enter into a definitive agreement, or to establish a business relationship. Unless
and until a definitive agreement is signed by the parties, neither party has any obligation or
liability to the other, except in connection with Confidential Information, as set forth in this
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01910/0035 132795.1
Agreement. Any discussions undertaken by the parties are non-exclusive.
Executed as of the date first written above.
City of Vernon
B L orris C. Malburg Mayo
Attes
i
Bruce V. Malkenhorst, Jr.
Acting City Clerk
Approved as to Fob.
By:
Eric T. Fresch, City A ey
4
01910/0035 132795.1
Tenaska, Inc.
By: p
Name: /3 4J. i*h 9, -d
Title: PI'te ! MII jeo, t ,�'41i* 4Dfr