Resolution No. 89631
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RESOLUTION NO. 8963
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 CAITHNESS ENERGY, L.L.C.
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 Caithness Energy,
L.L.C. ("Caithness") 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
Caithness 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
land correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Mutual Non -Disclosure Agreement with Caithness, 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
certify to the passage of this resolution, and thereupon and thereafter
the same shall be in full force and effect.
APPROVED AND ADOPTED this 1"t day of February, 2006.
ATTEST•
BRUCE V. MALKENHORST, JR.
Acting City Clerk
A
LEONIS C. MA BURG, 146yor
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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. 8963, 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)
BRUC V. MALKENHORST, JR.
Acting City Clerk
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EXHIBIT
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Page: 2/5 Date:'1/20/200612:59:17 PM
MUTUAL NON -DISCLOSURE AGREEMENT
This Mutual Non -Disclosure Agreement ("Agreement) is entered into as ofJanuary 19,
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 Caithness
Energy, L.L.C., a Delaware limited liability company, having a mailing address at c/o Caithness
Corporation, 565 Fifth Avenue, 29a' Floor, New York, NY 10017 ("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, and to exchange, for the sole purpose of evaluating the possibility of such a relationship,
certain confidential information and documents. The patties acknowledge and agree that the sole
reason for thcir exchanging confidential information is to facilitate their discussions of a possible
mutually beneficial relationship, and the use or disclosure of any of such stared confidential
information for any other purpose is wrongfW and in violation of the terms of this Agreement.
follows: To furtber specifically protect their confidential information, the parties hereby agree as
1. Definition of Confidential Infor 11gon. 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 "Propti.etary"; (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. 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. N911disclosun and onuse Obli ations. 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 fin-therance 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 cane. 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
Recipient's employees who need to know such information, and such Recipient certifies that
such Recipient's employees have previously agreed, either as a condition to employment or in
019](YOM4 132795.1
Page: W5 Date:•1/26/200612:59:17 PM
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 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
attempting to prevent contlnuing additional unauthorized use or disclosure of Discloser's
Confidential Information.
3. ure a ns.
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 patties, as Recipient, of Confidential dential 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, if legally permitted. 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. Ommemembin and Return of Confidga gal nfnnnation and Other Materials. All
Confidential Information of each of the parties, as Discloser, shall remain the property of such
Discloser. At such Discloser'a request and no later than ten (10) business days after such request,
such Recipient shall promptly deliver to or destroy 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. Notwithstanding
this section, Recipient shall be entitled to retain one copy of the Confidential Information.
5. gov-MLaw. 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 panties 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.
6. SeverabijitY. 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
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01910/0035 132795.1
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as possible the same effect as the original provision, and (ii) the legality, validity and
edorceability of the remaining provisions of this Agreement shall not be affected or impaired
thereby.
7. Waivero M. No term or provision hereof will be
considered waived by either ply, 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
.A.grcement by the other party shall not operate or be construed as a waiver of, to, or
excuse of any other or subsequent breach by the other party. This Agreement easy consent amended
or modified only by mutual written agreement.
g• Wiun—&L&JA breach or threatened breach by either party of any of the
promises or aglreements contained herein may result in irreparable and continuing damage to the
other party for which there may 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. mays' 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. EadM Ate. 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. Nelxotiations. The patties 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
Agreement. Any discussions undertaken by the parties are non-exclusive.
(the remainder of this page is intentionally left blank)
0191 OM5 132795.) 3
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Executed as of the date first written above.
City of Vernon
By: L.eonis C. Malburg, Mayor
Attest:
Bruce V. Malkenhorst, Jr.
Acting City Clerk
Approved as to Form
Eric T. Fresch
City Attorney
I
01910/0035 1327".1 4
SUPPORTING
DOCUMENTS
MUTUAL NON -DISCLOSURE AGREEMENT
This Mutual Non -Disclosure Agreement ("Agreement") is entered into as of January 19,
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 Caithness
Energy, L.L.C., a Delaware limited liability company, having a mailing address at c/o Caithness
Corporation, 565 Fifth Avenue, 29`h Floor, New York, NY 10017 ("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, 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 parry'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. 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 Obli ag tions. 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
Recipient's employees who need to know such information, and such Recipient certifies that
such Recipient's employees have previously agreed, either as a condition to employment or in
01910/0035 132795.1
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 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
attempting to prevent continuing additional unauthorized use or disclosure of Discloser's
Confidential Information.
3. Exclusions from Nondisclosure and Nonuse Obligations, Term 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, if legally permitted. 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 ten (10) business days after such request,
such Recipient shall promptly deliver to or destroy 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. Notwithstanding
this section, Recipient shall be entitled to retain one copy of the Confidential Information.
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.
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
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01910/0035 132795.1
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 may result in irreparable and continuing damage to the
other party for which there may 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
Agreement. Any discussions undertaken by the parties are non-exclusive.
(the remainder of this page is intentionally left blank)
3
01910/0035 132795.1
Executed as of the date first written above.
City of Vernon
Cai
By:
By: Leonis C. Malburg, Mayor
Attest
Bruce V. Malkenhorst, Jr.
Acting City Clerk
Approved as to Form
"a I
VM-IXvmw MViar G. Yamaguchi
Chief Deputy City Attorney
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01910/0035 132795.1