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Resolution No. 97061 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 RESOLUTION NO. 9706 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND RATIFYING THE EXECUTION OF A MUTUAL CONFIDENTIALITY AND NON -CIRCUMVENTION AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND MARATHON CAPITAL, LLC WHEREAS, the City of Vernon (the "City") owns and operates its own electric system which services the City's constituents; and WHEREAS, the City is in the process of developing projects relating to the development of renewable resources such as wind and solar energy projects (the "Projects"); and WHEREAS, the City desires to preserve and protect its rights by entering into a confidentiality agreement with Marathon Capital, LLC ("Marathon") in a manner that preserves the confidentiality and protected status of the documents, materials, and information to be exchanged, retained and used; and WHEREAS, to facilitate discussions relating to the Projects, the City Administrator executed a Mutual Confidentiality and Non - Circumvention Agreement on or about August 5, 2008 (the "Agreement") with Marathon, subject to ratification by the City Council; and WHEREAS, the City Council of the City of Vernon desires to approve and ratify the actions of the City Administrator in executing the Agreement on or about August 5, 2008; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the Agreement with Marathon. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 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 CITY OF VERNON AS FOLLOWS: SECTION l: 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 and ratifies the Agreement with Marathon, a copy of which is attached hereto as Exhibit A and incorporated by reference, and the City Administrator's execution of the Agreement on or about August 5, 2008. SECTION 3: The 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 8th day of September, 2008. Name: Leonis'C. Ma burg Title: Mayor / 4a�or--Are— fft- ATTEST• MANUELA GIRON, City Clerk - 2 - 1 STATE OF CALIFORNIA 2 ) ss COUNTY OF LOS ANGELES ) 3 4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby 5 certify that the foregoing Resolution, being Resolution No. 9706, was 6 duly adopted by the City Council of the City of Vernon at a regular 7 meeting of the City Council duly held on Monday, September 8, 2008, and 8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of 9 Vernon. 10 11 12 11 MANUELA RON City Clerk 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 EXHIBIT A 1 MUTUAL CONFIDENTIALITY and NON -CIRCUMVENTION AGREEMENT This CONFIDENTIALITY AGREEMENT (the "Agreement") is by and between Marathon Capital, LLC (hereinafter, the "Recipient") and the undersigned (hereinafter, the "Disclosing Party"). Recognizing that Recipient also may disclose Confidential Information to Disclosing Party in the course of a transaction or relationship, the parties agree that each and every obligation of Recipient and each and every right of Disclosing Party hereunder shall apply as and to the same effect as though "Recipient" and "Disclosing Party" were substituted for each other. WHEREAS, Recipient has requested information from Disclosing Party in connection with consideration of a possible transaction or relationship between Recipient and Disclosing Party. WHEREAS, in the course of consideration of the possible transaction or relationship, Disclosing Party may disclose to Recipient confidential, important, and/or proprietary trade secret information concerning Disclosing Party and its activities. WHEREAS; the Recipient recognizes the information and the interest the Disclosing Party has in protecting its right to pursue the opportunity without competing with, or being circumvented by Recipient. THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure by Disclosing Party to Recipient of certain information. l . Definitions. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Disclosing Party. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of Di closing Party whether or not such information is identified as Confidential Information by Disclosing Party, For purposes of this Agreement, the term "Recipient" shall include Recipient and all affiliates, subsidiaries, and related companies of Recipient. For purposes of this Agreement, the term "Representative" shall include Recipient's directors, officers, employees, ag nts, and financial, legal, and other advisors. 2. Exclusions. Notwithstanding anything contained in paragraph 1 hereof, Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient's possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public or to firms in the same industry; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information. 3. Confidentiality. Recipient and its Representatives shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 4 and 5 of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence. Marathon Capital — Confidentiality (2008) 4. Permitted Disclosures. Recipient may disclose Disclosing Party's Confidential Information to Recipient's Representatives with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out a proposed transaction or relationship with Disclosing Party and only if such Representatives are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. 5. Required Disclosures. Recipient may disclose Disclosing Party's Confidential pursuant to any governmental, judicial or administrative order, subpoena or discovery request or request or inquiry of a regulatory or self -regulatory body having jurisdiction over either of the parties hereto provided .that to the extent legally permitted Recipient provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose (at its own cost and expense) itsown objection to the disclosure. Notwithstanding anything herein to the contrary, Recipient may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the possible transaction. However, any information relating to the tax treatment or tax structure shall remain subject to the confidentiality' provisions hereof (and the foregoing sentence shall not apply) to the extent reasonably necessary to enable any person to comply with applicable securities laws. For this purpose, "tax treatment" means U.S. federal income tax treatment, and "tax structure" is limited to any facts relevant to the U.S. federal treatment of the possible transaction. 6. Use. Recipient and its Representatives shall use the Confidential Information solely for the purpose of evaluating a possible transaction or relationship with Disclosing Party and shall not in any way use the Confidential Information to the detriment of Disclosing Party. Nothing in this Agreement shall be construed as granting any rights to Recipient, by license or otherwise, to any of Disclosing Party's Confidential Information. 7. Return of Documents. If Recipient does not proceed with the possible transaction with Disclosing Party, Recipient shall notify Disclosing Party of that decision and shall, at that time or at any time upon the request of Disclosing Party for any reason, return to Disclosing Party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of Disclosing Party; provided, that Recipient may retain (a) one physical copy of such materials solely for archival, legal, compliance or regulatory purposes and (b) electronic copies in accordance with Recipient's customary electronic record retention and retrieval practices. The returning of materials shall not relieve Recipient from compliance with other terms and conditions of this Agreement. 8. No Additional Agreements. Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of Disclosing Party to enter into any other agreement with Recipient or prohibit Disclosing Party from providing the same or similar information to other parties and entering into agreements with other parties. Disclosing Party reserves the right, in its sole discretion, to reject any and all proposals made by Recipient or its Representatives with regard to a transaction between Recipient and Disclosing Party and to terminate discussions and negotiations with Recipient at any time. Additional agreements of the parties, if any, shall be in writing signed by Disclosing Party and Recipient. 9. Irreparable Harm. Recipient understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm, the amount of which may be difficult to Marathon Capital — Confidentiality (2008) 2 ascertain, and therefore agrees that Disclosing Party shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Disclosing Party shall deem appropriate. Such right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Party at law or in equity. 10. Survival. This Agreement shall continue in full force and effect for a period of two years from the date hereof. 11. Successors and Assigns. This Agreement and each party's obligations hereunder shall be binding on the representatives, assigns, and successors of such party and shall inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of Recipient hereunder are not assignable. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 13. Counterparts and Right. This Agreement may be executed by facsimile and in counterparts, which together shall constitute one agreement. The person signing on behalf of Recipient represents that he or she has the right and power to execute this Agreement. 14. Entire Agreement. This Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement is not; however, to limit any rights that Disclosing Party may have under trade secret, copyright, patent or other laws that may be available to Disclosing Party. This Agreement may not be amended or modified except in writing signed by each of the parties to the Agreement. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof. Date:�✓r d ( , 2008 Marath Capital LLC ("Recipient") By: Title: ("Disclosing Party ") in Title: C "I y Ad4X.Mt,S�2�� l(, ATTEST ), . I I I By: U&w� A.�. Manuela Giron, City Clerk Marathon Capital — Confidentiality (2008) MUTUAL CONFIDENTIALITY and NON -CIRCUMVENTION AGREEMENT This CONFIDENTIALITY AGREEMENT (the "Agreement") is by and between Marathon Capital, . LLC (hereinafter, the "Recipient") and the undersigned (hereinafter, the "Disclosing Party"). Recognizing that Recipient also may disclose Confidential Information to Disclosing Party in the course of a transaction or relationship, the parties agree that each and every obligation of Recipient and each and every right of Disclosing Party hereunder shall apply as and to the same effect as though "Recipient" and "Disclosing Party" were substituted for each other. WHEREAS, Recipient has requested information from Disclosing Party in connection with consideration of a possible transaction or relationship between Recipient and Disclosing Party. WHEREAS, in the course of consideration of the possible transaction or relationship, Disclosing Party may disclose to Recipient confidential, important, and/or proprietary trade secret information concerning Disclosing Party and its activities. WHEREAS, the Recipient recognizes the information and the interest the Disclosing Party has in protecting its right to pursue the opportunity without competing with, or being circumvented by Recipient. THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure by Disclosing Party to Recipient of certain information. 1. Definitions. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Disclosing Party. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of Disclosing Party whether or not such information is identified as Confidential Information by Disclosing Party.. For purposes of this Agreement,. the term "Recipient" shall include Recipient and all affiliates, subsidiaries, and related companies of Recipient. For purposes of this Agreement, the term "Representative" shall include Recipient's directors, officers, employees, agents, and financial, legal, and other advisors. 2. Exclusions. Notwithstanding anything contained in paragraph 1 hereof, Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient's possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public or to firms in the same industry; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information. 3. Confidentiality. Recipient and its Representatives shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 4 and 5 of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence. Marathon Capital— Confidentiality (2008) 4. Permitted Disclosures. Recipient may disclose Disclosing Party's Confidential Information to Recipient's Representatives with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out a proposed transaction or relationship with Disclosing Party and only if such Representatives are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. 5. Required Disclosures. Recipient may disclose Disclosing Party's Confidential pursuant to any governmental, judicial or administrative order, subpoena or discovery request or request or inquiry of a regulatory or self -regulatory body having jurisdiction over either of the parties hereto provided that to the extent legally permitted Recipient provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose (at its own cost and expense) its own objection to the disclosure. Notwithstanding anything herein to the contrary, Recipient may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the possible transaction. However, any information relating to the tax treatment or tax structure shall remain subject to the confidentiality provisions hereof (and the foregoing sentence shall not apply) to the extent reasonably necessary to enable any person to comply with applicable securities laws. For this purpose, "tax treatment" means U.S. federal income tax treatment, and "tax structure" is limited to any facts relevant to the U.S. federal treatment of the possible transaction. 6. Use. Recipient and its Representatives shall use the Confidential Information solely for the purpose of evaluating a possible transaction or relationship with Disclosing Party and shall not in any way use the Confidential Information to the detriment of Disclosing Party. Nothing in this Agreement shall be construed as granting any rights to Recipient, by license or otherwise, to any of Disclosing Party's Confidential Information. 7. Return of Documents. If Recipient does not proceed with the possible transaction with Disclosing Party, Recipient shall notify Disclosing Party of that decision and shall, at that time or at any time upon the request of Disclosing Party for any reason, return to Disclosing Party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of Disclosing Party; provided, that Recipient may retain (a) one physical copy of such materials solely for archival, legal, compliance or regulatory purposes and (b) electronic copies in accordance with Recipient's customary electronic record retention and retrieval practices. The returning of materials shall not relieve Recipient from compliance with other terms and conditions of this Agreement. 8. No Additional Agreements. Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of Disclosing Party to enter into any other agreement with Recipient or prohibit Disclosing Party from providing the same or similar information to other parties and entering into agreements with other parties. Disclosing Party reserves the right, in its sole discretion, to reject any and all proposals made by Recipient or its Representatives with regard to a transaction between Recipient and Disclosing Party and to terminate discussions and negotiations with Recipient at any time. Additional agreements of the parties, if any, shall be in writing signed by Disclosing Party and Recipient. 9. Irreparable Harm. Recipient understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm, the amount of which may be difficult to Marathon Capital — Confidentiality (2008) 2 ascertain, and therefore agrees that Disclosing Party shall have the right to apply to a court of competent jurisdiction for specific, performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Disclosing Party shall deem appropriate. Such right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Parry at law or in equity. 10. Survival. This Agreement shall continue in full force and effect for a period of two years from the date hereof. 11. Successors and Assigns. This Agreement and each party's obligations hereunder shall be binding on the representatives, assigns, and successors of such party and shall inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of Recipient hereunder are not assignable. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. 13. Counterparts and Right. This Agreement may be executed by facsimile and in counterparts, which together shall constitute one agreement. The person signing on behalf y of Recipient represents that he or she has the right and power to execute this Agreement. 14. Entire Agreement. This Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement is not; however, to. limit any rights that Disclosing Party may have under trade secret, copyright, patent or other laws that may be available to Disclosing Party. This Agreement may not be amended or modified except in writing signed by each of the parties to the Agreement. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof. Date:s 2008 Title:, /��� no)" LLC ("Recipient") ("Disclosing Party ") By. Title: ATTEST By: Manuela Giron, City Clerk Marathon Capital Confidentiality (2008) 3