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Resolution No. 97101 2 3 4 5 6 7 8 9 10 11 12 13 Im 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9710 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A CONFIDENTIALITY AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND CAL/AZ PORTFOLIO NO. 1, LLC REGARDING PROPERTY LOCATED AT 4150-4174 BANDINI BOULEVARD IN THE CITY OF VERNON WHEREAS, the City of Vernon (the "City") is exploring the possible purchase of property located at 4150-4174 Bandini Boulevard in the City of Vernon (the "Property"); and WHEREAS, the Property owner, Cal/AZ Portfolio No. 1, LLC ("Cal/AZ"), desires to preserve and protect its rights by entering into a confidentiality agreement with the City 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 Property, the City Council desires to approve the execution of a Confidentiality Agreement with Cal/AZ; 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 Cal/AZ. 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 1 approves the Confidentiality Agreement with Cal/AZ, in substantially 2 the same form as the copy which is attached hereto as Exhibit A and 3 incorporated by reference. 4 SECTION 3: The City Council of the City of Vernon hereby 5 authorizes the Mayor to execute the Agreement for, and on behalf of, 6 the City of Vernon and the City Clerk is hereby authorized to attest 7 thereto. 8 SECTION 4: The City Council of the City of Vernon hereby 9 authorizes the City Administrator, or his designee, to make whatever 10 nonsubstantive, administrative and/or text changes, upon advice of 11 counsel, to the Agreement. 12 SECTION 5: The City Council of the City of Vernon hereby 13 authorizes the City Administrator, or his designee, to take any and 14 all actions deemed necessary and to execute any and all documents as 15 shall be required pursuant to the terms of said Agreement. 16 SECTION 6: The City Clerk of the City of Vernon shall 17 certify to the passage of this resolution, and thereupon and 18 thereafter the same shall be in full force and effect. 19 APPROVED AND ADOPTED this 8th day of September, 2008. 20 21 Name Leonis Co Malburg 22 Title: Mayor / 23 24 ATTE T: 25 26 MAN ELA GIRON, C y lerk 27 28 - 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, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9710, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, September 8, 2008, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of, Vernon. (SEAL) MANUELA GIRbN, City Clerk - 3 - CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is made and entered into this day of August, 2008, by , a ("Prospective Buyer"), in favor of CAL/AZ PORTFOLIO NO. 1, LLC, a Delaware limited liability company ("Owner"). RECITALS A. Owner is the owner of that certain real property located in the City of Vernon, State of California commonly known as 4150-4174 Bandini Boulevard, Vernon, California (the "Property"). B. Owner may provide Prospective Buyer with information concerning the Property for the purpose of determining Prospective Buyer's possible interest in purchasing the Property. C. Such information would not be made available to Prospective Buyer without its execution of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Prospective Buyer hereby agrees as follows: Confidential Information. As used herein, confidential information means all data and documents Prospective Buyer may, from time to time, directly or indirectly, receive relating to the Owner or the Property, whether provided orally or in writing, including, but not limited to, environmental studies and analyses, reports, opinions, studies, projections, analyses, compilations, internal documents and records, and other similar materials, and including all materials which contain or otherwise reflect or are generated from such information (in whatever form maintained whether documentary, computer storage or otherwise) (the "Confidential Information"). 2. Agreement to Treat Information Confidentially. The Confidential Information is owned solely by Owner and is provided to Prospective Buyer solely to aid Prospective Buyer in its analysis of whether to make an offer to purchase the Property. The Confidential Information will be treated as confidential and will not be disclosed to any other person or entity, nor used for any purpose not related to the possible purchase of the Property by the Prospective Buyer, or in any fashion detrimental to the interest of the Owner or its affiliates. Prospective Buyer is strictly prohibited from disclosing any of the Confidential Information to any other party without Owner's prior written authorization, provided that the Confidential Information may be disclosed to employees, attorneys and consultants of Prospective Buyer (collectively, "Related Parties") only to the extent such parties are involved in, and need to know such information for the purpose of, preparing an offer for the purchase of the Property by Prospective Buyer and conducting due diligence in connection therewith; provided, however, such Related Parties must be informed of the confidential nature of the Confidential Information, such Related Parties must agree to keep the Confidential Information and to use the Confidential Information strictly confidential in accordance with the terms of this Agreement, and Prospective Buyer will be responsible if any of the Related Parties fails to do so. Without limiting the generality of the above, information regarding tenants of the Property shall not be disclosed to employees involved in marketing or leasing other properties in the general geographic area of the Property. 55709341 No Copying of Confidential Information and Return of Confidential Information. No Confidential Information will be used by Prospective Buyer or any of its Related Parties other than in connection with the possible acquisition of the Property. Prospective Buyer agrees that it will not make any copies of any portion of the Confidential Information nor summarize or refer to any part of the Confidential Information in any public document or, except as expressly permitted in this Agreement, provide such Confidential Information to any other person or entity without the Owner's prior written consent, which may be given or withheld in Owner's sole and absolute discretion. Prospective Buyer will make all necessary and appropriate efforts to safeguard the Confidential Information from disclosure to anyone other than as permitted hereby. Prospective Buyer further agrees that, upon request of Owner, it will return to Owner all Confidential Information provided to it and all copies of such Confidential Information , including all materials prepared by them or their Related Parties that embody any of the Confidential Information. 4. Nonexclusive Negotiations. Prospective Buyer acknowledges that Owner may decide to sell some or all of the Property to another party, or to refrain from selling or offering to sell the Property, all at Owner's sole and absolute discretion, and Owner may, at any time, withdraw from negotiations with Prospective Buyer for any reason whatsoever. This Agreement shall not provide Prospective Buyer any rights of any nature with respect to the Property. Furthermore, this Agreement shall not constitute a contract to negotiate or any commitment of any kind whatsoever by Owner. 5. Acknowledgment of Prospective Buyer. Prospective Buyer agrees that neither Owner nor any of its representatives has made or makes any express or implied representation or warranty as to the accuracy, completeness or current status of the Confidential Information, and shall have no liability to Prospective Buyer or its Related Parties or successors and assigns resulting from the use of the Confidential Information by any of such parties (including as the basis on which to make an offer to purchase, or to actually purchase, the Property), or any errors therein or omissions therefrom. Prospective Buyer acknowledges that Owner has not undertaken to review or verify the accuracy or completeness of the Confidential Information. Any reports and studies prepared by or for Owner, or otherwise in Owner's possession that Owner may provide to Prospective Buyer are for information purposes only. Prospective Buyer shall have no right to rely upon any of such information or upon the conclusions, assumptions or other data set forth in any reports, studies or other Confidential Information, and shall have no recourse against Owner or its advisors, attorneys or agents, including the preparers of such reports, in the event of any errors therein or omissions therefrom. Disclosure with Protective Orders. If Prospective Buyer is required by subpoenas, or other legal processes to disclose any Confidential Information, Prospective Buyer will provide Owner with prompt notice of any such requirement prior to disclosing such Confidential Information and shall fully cooperate with Owner in connection with the same. 7. Indemnification Remedies for Breach. Prospective Buyer agrees to indemnify, defend and hold Owner and its partners, officers, members, directors, employees, advisors, agents and shareholders harmless from and against any and all claims, losses, damages and liabilities, and all other costs and expenses relating thereto, including, without limitation, reasonable attorneys' fees, suffered or incurred by Owner in connection with any breach by Prospective Buyer or its Related Parties of any of the provisions of this Agreement. It is also further understood and agreed that unauthorized use or disclosure of the Confidential Information could cause irreparable harm and 5570934v1 significant injury to the Owner that may be difficult to ascertain or quantify and that, accordingly, money damages would not be a sufficient remedy for any breach of this Agreement. Therefore, Prospective Buyer agrees that the Owner shall be entitled to injunctive relief and/or specific performance, without the necessity to post a bond or other security, as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Owner. No Waiver. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Any waiver of any of the rights of Owner hereunder must be in a writing signed by Owner. 9. No Contact. Prospective Buyer shall not communicate with or otherwise disclose, in any manner whatsoever, to any third party, including, without limitation, any governmental authority or any previous owner of the Property relating to any matters with respect to the Property. 10. Miscellaneous. This Agreement shall be governed in all respects by the laws of the State of California. If any party to this Agreement brings any action against another party to this Agreement for the enforcement or interpretation of this Agreement, the losing party shall pay to the prevailing party a reasonable sum for attorneys' fees. The "prevailing party", will be determined by the court before whom the action was brought based upon an assessment of which party's major arguments or positions taken in the suit or proceeding could fairly be said to have prevailed over the other party's major arguments or positions on major disputed issues in the court's decision. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understanding, both written and oral, pertaining to the subject matter hereof. This Agreement will be interpreted according to the fair meaning of its terms and not strictly for or against any party hereto. The provisions of this Agreement may only be amended, modified or waived by written agreement executed by each of the parties hereto.. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in fall force and effect without being impaired or invalidated in any way, and Owner shall have the right to replace any invalid or unenforceable provision with a valid enforceable provision. Prospective Buyer shall not assign this Agreement nor any rights hereunder without the prior written consent of Owner, which may be given or withheld in the Owner's sole and absolute discretion. Each party hereto, and their respective successors and assigns shall be authorized to rely upon the signatures of all of the parties hereto on this Agreement which are delivered by facsimile as constituting a duly authorized, irrevocable, actual, current delivery of this Agreement with original ink signatures of each person and entity. This Agreement may be executed in counterparts, each of which shall be deemed an original part and all of which together shall constitute a single agreement. Except as provided above, this Agreement shall be binding upon the parties hereto and inure to the benefit of Prospective Buyer and Owner and each such party's respective permitted successors and assigns. [Signatures on Following Page] 55709341 IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date written above. Prospective Buyer: a By: Name: Position: Name: Position: 5570934v1 OFFICE OF THE CITY ATTORNEY Jeff A. Harrison, City Attorney 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 Fax (323) 826-1438 September 10, 2008 VIA FEDERAL EXPRESS Mr. John L. Privett c/o Ms. Janice Diaz CB Richard Ellis 500 Citadel Drive, Suite 301 Commerce, CA 90040 Re: Confidentialitv Agreement Dear John: Enclosed please find two duplicate originals of the aforementioned Agreement, which need to be signed by the appropriate parties. Please keep one original copy and mail one original to the City to the attention of Judy Lehr, City Attorney's Office, as soon as possible. Please refer to the enclosed "City of Vernon Signature Requirements for a Corporation for All City Agreements and Contracts" and comply with the requirements set forth therein. Since4arA.rison ity Attorney JH:em Enclosures CC: Ms. Nelly Giron, City Clerk (w/o encls.) (Resolution No. 9710) Exclusively Industrial CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is made and entered into this 8th day of September, 2008, by CITY OF VERNON, a municipal corporation, ("Prospective Buyer"), in favor of CAL/AZ PORTFOLIO NO. 1, LLC, a Delaware limited liability company ("Owner"). RECITALS A. Owner is the owner of that certain real property located in the City of Vernon, State of California commonly known as 4150-4174 Bandini Boulevard, Vernon, California (the "Property"). B. Owner may provide Prospective Buyer with information concerning the Property for the purpose of determining Prospective Buyer's possible interest in purchasing the Property. C. Such information would not be made available to Prospective Buyer without its execution of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Prospective Buyer hereby agrees as follows: Confidential Information. As used herein, confidential information means all data and documents Prospective Buyer may, from time to time, directly or indirectly, receive relating to the Owner or the Property, whether provided orally or in writing, including, but not limited to, environmental studies and analyses, reports, opinions, studies, projections, analyses, compilations, internal documents and records, and other similar materials, and including all materials which contain or otherwise reflect or are generated from such information (in whatever form maintained whether documentary, computer storage or otherwise) (the "Confidential Information"). 2. Agreement to Treat Information Confidentially. The Confidential Information is owned solely by Owner and is provided to Prospective Buyer solely to aid Prospective Buyer in its analysis of whether to make an offer to purchase the Property. The Confidential Information will be treated as confidential and will not be disclosed to any other person or entity, nor used for any purpose not related to the possible purchase of the Property by the Prospective Buyer, or in any fashion detrimental to the interest ofthe Owner or its affiliates. Prospective Buyer is strictly prohibited from disclosing any of the Confidential Information to any other party without Owner's prior written authorization, provided that the Confidential Information may be disclosed to employees, attorneys and consultants of Prospective Buyer (collectively, "Related Parties") only to the extent such parties are involved in, and need to know such information for the purpose of, preparing an offer for the purchase of the Property by Prospective Buyer and conducting due diligence in connection therewith; provided, however, such Related Parties must be informed of the confidential nature of the Confidential Information, such Related Parties must agree to keep the Confidential Information and to use the Confidential Information strictly confidential in accordance with the terms of this Agreement, and Prospective Buyer will be responsible if any of the Related Parties fails to do so. Without limiting the generality of the above, information regarding tenants of the Property shall not be disclosed to employees involved in marketing or leasing other properties in the general geographic area of the Property. 5570934v1 3. No Copying of Confidential Information and Return of Confidential Information. No Confidential Information will be used by Prospective Buyer or any of its Related Parties other than in connection with the possible acquisition of the Property. Prospective Buyer agrees that it will not make any copies of any portion of the Confidential Information nor summarize or refer to any part of the Confidential Information in any public document or, except as expressly permitted in this Agreement, provide such Confidential Information to any other person or entity without the Owner's prior written consent, which may be given or withheld in Owner's sole and absolute discretion. Prospective Buyer will make all necessary and appropriate efforts to safeguard the Confidential Information from disclosure to anyone other than as permitted hereby. Prospective Buyer further agrees that, upon request of Owner, it will return to Owner all Confidential Information provided to it and all copies of such Confidential Information, including all materials prepared by them or their Related Parties that embody any of the Confidential Information. 4. Nonexclusive Negotiations. Prospective Buyer acknowledges that Owner may decide to sell some or all of the Property to another party, or to refrain from selling or offering to sell the Property, all at Owner's sole and absolute discretion, and Owner may, at any time, withdraw from negotiations with Prospective Buyer for any reason whatsoever. This Agreement shall not provide Prospective Buyer any rights of any nature with respect to the Property. Furthermore, this Agreement shall not constitute a contract to negotiate or any commitment of any kind whatsoever by Owner. 5. Acknowledgment of Prospective Buyer. Prospective Buyer agrees that neither Owner nor any of its representatives has made or makes any express or implied representation or warranty as to the accuracy, completeness or current status ofthe Confidential Information, and shall have no liability to Prospective Buyer or its Related Parties or successors and assigns resulting from the use of the Confidential Information by any of such parties (including as the basis on which to make an offer to purchase, or to actually purchase, the Property), or any errors therein or omissions therefrom. Prospective Buyer acknowledges that Owner has not undertaken to review or verify the accuracy or completeness of the Confidential Information. Any reports and studies prepared by or for Owner, or otherwise in Owner's possession that Owner may provide to Prospective Buyer are for information purposes only. Prospective Buyer shall have no right to rely upon any of such information or upon the conclusions, assumptions or other data set forth in any reports, studies or other Confidential Information, and shall have no recourse against Owner or its advisors, attorneys or agents, including the preparers of such reports, in the event of any errors therein or omissions therefrom. 6. Disclosure with Protective Orders. If Prospective Buyer is required by subpoenas, or other legal processes to disclose any Confidential Information, Prospective Buyer will provide Owner with prompt notice of any such requirement prior to disclosing such Confidential Information and shall fully cooperate with Owner in connection with the same. 7. Indemnification Remedies for Breach. Prospective Buyer agrees to indemnify, defend and hold Owner and its partners, officers, members, directors, 2 5570934vl employees, advisors, agents and shareholders harmless from and against any and all claims, losses, damages and liabilities, and all other costs and expenses relating thereto, including, without limitation, reasonable attorneys' fees, suffered or incurred by Owner in connection with any breach by Prospective Buyer or its Related Parties of any of the provisions of this Agreement. It is also further understood and agreed that unauthorized use or disclosure of the Confidential Information could cause irreparable harm and significant injury to the Owner that may be difficult to ascertain or quantify and that, accordingly, money damages would not be a sufficient remedy for any breach of this Agreement. Therefore, Prospective Buyer agrees that the Owner shall be entitled to injunctive relief and/or specific performance, without the necessity to post a bond or other security, as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law or equity to the Owner. No Waiver. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Any waiver of any of the rights of Owner hereunder must be in a writing signed by Owner. 9. No Contact. Prospective Buyer shall not communicate with or otherwise disclose, in any manner whatsoever, to any third party, including, without limitation, any governmental authority or any previous owner of the Property relating to any matters with respect to the Property. 10. Miscellaneous. This Agreement shall be governed in all respects by the laws ofthe State of California. If any party to this Agreement brings any action against another party to this Agreement for the enforcement or interpretation of this Agreement, the losing party shall pay to the prevailing party a reasonable sum for attorneys' fees. The "prevailing party" will be determined by the court before whom the action was brought based upon an assessment of which party's major arguments or positions taken in the suit or proceeding could fairly be said to have prevailed over the other party's major arguments or positions on major disputed issues in the court's decision. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understanding, both written and oral, pertaining to the subject matter hereof. This Agreement will be interpreted according to the fair meaning of its terms and not strictly for or against any party hereto. The provisions of this Agreement may only be amended, modified or waived by written agreement executed by each of the parties hereto. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in fall force and effect without being impaired or invalidated in any way, and Owner shall have the right to replace any invalid or unenforceable provision with a valid enforceable provision. Prospective Buyer shall not assign this Agreement nor any rights hereunder without the prior written consent of Owner, which may be given or withheld in the Owner's sole and absolute discretion. Each party hereto, and their respective successors and assigns shall be authorized to rely upon the signatures of all of the parties hereto on this Agreement which are 3 5570934v1 delivered by facsimile as constituting a duly authorized, irrevocable, actual, current delivery of this Agreement with original ink signatures of each person and entity. This Agreement may be executed in counterparts, each of which shall be deemed an original part and all of which together shall constitute a single agreement. Except as provided above, this Agreement shall be binding upon the parties hereto and inure to the benefit of Prospective Buyer and Owner and each such party's respective permitted successors and assigns. [Signatures on Following Page] 4 5570934vl IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date written above. Prospective Buyer: City of Vernon, a Municipal Corporation By: Le nis C. Malburg, NNyor ATT By: Manuela Giron, rty c1lerk APPROVED AS TO FORM i Pi� -- If. Vrrson, City Attorney Owner: CAL/AZ PORTFOLIO NO. 1, LLC, a Delaware limited liability company Name: Title: Name: Title: 5 5570934v1 AGREEMENT NOT RECEIVED - LEGAL DOES NOT HAVE A COPY IN THEIR FILE Page 1 of 1 Juarez, Debbie From: Muro, Evangelina Sent: Monday, November 09, 2009 9:39 AM To: Juarez, Debbie Cc: Lehr, Judy Subject: RE: Resolution No. 9710 CAL/AZ Portfolio No. 1, LLC. - Confidentiality Agreement Debbie, I have looked through our file and did not find a fully executed agreement. From: Juarez, Debbie Sent: Tuesday, October 13, 2009 2:08 PM To: Muro, Evangelina; Lehr, Judy Subject: Resolution No. 9710 CAL/AZ Portfolio No. 1, LLC. - Confidentiality Agreement Please let me know if you have the fully executed agreement in your file. Thank you 1Worah Juarez 1§cords WanagementAssistant City of Vernon - City CferCs Office 4305 Santa Te Avenue Vernon, CA 90058 (323) 583-8811 11 /9/2009