Resolution No. 97182
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RESOLUTION NO. 9718
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
NON -DISCLOSURE AND NON-USE AGREEMENT BY AND BETWEEN
THE CITY OF VERNON AND FLUEGEN, INC.
WHEREAS, the City of Vernon (the "City") owns and operates
its own electric system which services the City's constituents; and
WHEREAS, FlueGen, Inc. ("FlueGen") is developing products
relating to power plant particulate and carbon dioxide emissions
1control (the "Project"); and
WHEREAS, the City desires to preserve and protect its rights
by entering into a confidentiality agreement with FlueGen 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 Project,
the City Attorney recommends that a Non -Disclosure and Non -Use
Agreement be executed with FlueGen; 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 Fluegen.
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
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approves the Non -Disclosure and Non -Use Agreement with FlueGen, in
substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the City Attorney to execute said Agreement for, and on
behalf of, the City of Vernon and the City Clerk is hereby authorized
Ito attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to make whatever
nonsubstantive, administrative and/or text changes, upon advice of
counsel, to the Agreement.
SECTION 5: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to execute any and
all documents as shall be required to implement the Agreement
consistent with the terms of said Agreement approved herein.
SECTION 6: The City Council of the City of Vernon hereby
directs the City Attorney to forward one fully executed original to
FlueGen.
SECTION 7: 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 6th day of October, 2008.
A TEST:
NUELA 'IRON, City Clerk
Name: Loonis Cs Malburrr,
Title: Mayor /
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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. 9718, was
duly adopted by the City Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, October 6, 2008, and
thereafter was duly signed by the Mayor or Mayor- Pro-Tem of the City of
Vernon.
(SEAL)
MANUELA G 0 , City Clerk
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EXHIBIT A
NON -DISCLOSURE AND NON-USE AGREEMENT
THIS AGREEMENT is entered into as of this 6th day of October 2008
("Effective Date") by and between FlueGen, Inc., having a principal place of business at 2355
Main Street, Suite 215, Irvine, California 92614 ("Disclosing Party"), and the City of Vernon,
having a principal place of business at
4305 Santa Fe Avenue, Vernon, California 90058 , ("Receiving Party").
WHEREAS, the Disclosing Party owns certain confidential and proprietary information
relating to power plant particulate and carbon dioxide emissions control and certain intellectual
property rights therein;
WHEREAS, the Disclosing Party is willing to provide such confidential and proprietary
information to the Receiving Party on the basis that it is kept confidential and used only under
the terms and conditions set forth in this Agreement; and
WHEREAS, the Receiving Party is willing to receive such confidential and proprietary
information from the Disclosing Party under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Disclosing Party and the Receiving Party agree as follows:
1. Confidential Information
1.1 "Confidential Information" shall mean all technical and business information
disclosed by the Disclosing Party to the Receiving Party and believed by the Disclosing Party to
be of a confidential and proprietary nature, including, but not limited to, inventions, patent
applications, trade secrets, know-how, technical research and development plans and results,
product plans and specifications, processes and process operation information, formulas, designs,
drawings, software, business plans, financial information, marketing and sales information, and
all other information considered by the Disclosing Party to be of a confidential and proprietary
nature, whether in tangible form, including, but not limited to, written or electronic forms, or
intangible form.
1.2 All Confidential Information in tangible form shall be labeled as
"CONFIDENTIAL" or with a similar notice. In the case of Confidential Information in
intangible form, such as oral disclosures of Confidential Information, a notification of the
confidential nature of the oral disclosures shall be made in writing by the Disclosing Party to the
Receiving Party prior to, contemporaneous with, or within 15 days of each such oral disclosure.
1.3 Confidential Information does not include information that (i) can be
demonstrated to have been in the public domain or publicly known or available prior to the date
of the disclosure to the Receiving Party; (ii) can be demonstrated by the written records of the
Receiving Party to have been rightfully in its possession prior to disclosure by the Disclosing
Party to the Receiving Party; (iii) becomes part of the public domain or publicly known or
available by publication or otherwise, in a manner not due to any unauthorized act or omission by
the Receiving Party; or (iv) is supplied to the Receiving Party by a third party without an
obligation of confidentiality, provided such third party has no obligation of confidentiality with
respect to such information.
1.4. All Confidential Information disclosed by the Disclosing Party to the Receiving
Party, and all copies thereof, is and shall remain the exclusive property of the Disclosing Party.
2. Non -Disclosure and Non -Use of Confidential Information
2.1 Except as otherwise provided herein, the Receiving Party shall hold all
Confidential Information disclosed to it by the Disclosing Party in strict confidence and shall not
reveal, disclose, or communicate any such Confidential Information to any other party without
the express written consent of the Disclosing Party. The Receiving Party shall be permitted to
disclose the Confidential Information to its employees, officers, directors, counsel and advisors,
provided (a) such persons have a need to know the Confidential Information for the purpose
described in Paragraph 2.2 herein and (b) the Receiving party shall be responsible for any
noncompliance by such persons and inform them of the obligations hereunder. Should the
Receiving Party be required by law to disclose any portion of the Confidential Information, the
Receiving Party shall give the Disclosing Party immediate notice of such requirement for
disclosure, but no less than 10 days notice prior to the date of the required disclosure, so that the
Disclosing Party can seek a protective order or other form of protection prior to such disclosure.
The Receiving Party shall cooperate with the Disclosing Party in opposing such disclosure.
2.2 The Receiving Party shall only use the Confidential Information strictly for the
purpose of evaluating the feasibility of its use in potentially controlling emissions from its power
plants.
3. No License Rights
3.1 Nothing in this Agreement is intended to grant, nor shall it be construed as
granting, to the Receiving Party or any other party, a license (expressly or by implication,
estoppel, or otherwise) under any of the Disclosing Party's patents, copyrights, trade secrets,
trademarks, other intellectual property rights, or any other rights, or in any of the Disclosing
Party's rights in the Confidential Information.
4. Return and Destruction of Confidential Information
4.1 The Receiving Party shall promptly deliver all forms of the Confidential
Information, all copies thereof, and all materials reflecting any portion of the Confidential
Information to the Disclosing Party within 15 days of any notice, oral or written, of termination
of this Agreement or of any request for the return of the Confidential Information or any portion
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thereof made by the Disclosing Party to the Receiving Party. At the sole discretion of, and upon
the written agreement of, the Disclosing Party, the Receiving Party may alternatively certify in
writing that such Confidential Information, all copies thereof, and all materials reflecting any
portion of the Confidential Information have been destroyed. In either case, the Receiving Party
shall provide written confirmation to the Disclosing Party within the same 15 days that all
electronic copies of the Confidential Information or other files reflecting any portion of the
Confidential Information have been erased or destroyed.
5. Term and Termination
5.1 This Agreement shall remain in full force and effect for a period of three years
from the Effective Date; however, either party may terminate this Agreement upon 30 days
written notice to the other party. Paragraphs 2.1, 4.1, 6.1, 6.3, 6.4, 6.5, 6.7, and 6.8 shall survive
any termination.
6. Miscellaneous
6.1 The Receiving Party agrees that any violation or threatened violation of this
Agreement will cause irreparable injury to the Disclosing Party entitling the Disclosing Party to
obtain injunctive relief in addition to all legal remedies at law and in equity. The prevailing party
in any litigation regarding a breach of this Agreement shall be entitled to recover its litigation
fees, costs, and expenses, including reasonable attorneys' fees.
6.2 The Receiving Party acknowledges that the Confidential Information may be
subject to the export control laws, regulations, and rules of the United States. The Receiving
Party agrees to comply with all such laws, regulations, and rules.
6.3 The rights and obligations under this Agreement shall inure to the benefit of the
party's respective successors, heirs, executors and administrators, and permitted assigns. Neither
party may assign this Agreement without the prior written consent of the other party, except to a
successor in interest pursuant to a merger, acquisition, or sale of all or substantially all of that
party's assets.
6.4 Failure to enforce any provision of this Agreement shall not constitute a waiver of
any subsequent breaches of that provision, nor shall such failure to enforce constitute a waiver of
any other provision of this Agreement.
6.5 If any provision of this Agreement is found by a proper authority to be
unenforceable, that provision shall be severed and the remainder of this Agreement shall
continue in full force and effect.
6.6 The parties agree that this Agreement represents the entire agreement between the
parties with respect to the subject matter hereof. Any modification to this Agreement shall be in
writing and signed by both parties.
6.7 This Agreement shall be construed according to the laws of the State of California
without regard to its choice of law principals.
6.8 The parties agree and hereby submit to the jurisdiction of, and waive any venue
objections against, the United States District Court for the Central District of California and the
Superior and Municipal Courts of the State of California in Los Angeles and Orange Counties in
any litigation arising out of this Agreement.
6.9 Any notice required under this Agreement shall be deemed properly given if
transmitted by first class mail to the other party at the address given above.
6.10 This Agreement maybe executed in counterparts, each of which shall be deemed
to be an original, but both of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned duly authorized representatives of the parties
have executed this Agreement, effective as of the Effective Date set forth above:
The Disclosing Party:
Signature
Name
Title
Date
The Receiving Party:
Signature
Jeff A. Harrison
Name
City of Vernon
City Attorney
Title
October 6, 2008
Date
ATTEST:
By:
Manuela Giron, City Attorney
4
FlueGen, Inc. Page I of 2
VIP
Lehr, Judy
From: Harrison, Jeff
Sent: Monday, October 06, 2008 4:55 PM
To: 'DAVID. ROGERS@lw.com'
Cc: Lehr, Judy
Subject: RE: FlueGen, Inc./Vernon NDA
We can work with this. Thank you.
Jeff A. I larrison
City Attorney
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
(323) 826-3688
Fax: (323) 826-1438
From: DAVID.ROGERS@lw.com [mailto:DAVID.ROGERS@lw.com]
Sent: Monday, October 06, 2008 4:49 PM
To: Harrison, Jeff
Cc: DAVID.ROGERS@lw.com
Subject: FW: FlueGen, Inc./ Vernon NDA
Jeff,
Is this pdf copy sufficient for this agreement or should we track down the hard copy original?
Dave
David B. Rogers
LATHAM & WATKINS LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
Direct Dial: +1.213.891.8236
Fax: +1.213.891.8763
Email: david.rogers@lw.com
http://Www,lw.com
From: Uday Singh [ma ilto: using h@fI uegen. com]
Sent: Monday, October 06, 2008 4:02 PM
To: Rogers, David (LA)
Subject: RE: FlueGen, Inc./ Vernon NDA
Dave:
Attached is the signed version of the NDA. I look forward to meeting with you and Donal on
Wednesday, October 8 at 11 AM. If you would call my cell phone at (949)697 1750 when you enter the
parking lot, I will meet you at the front door. Regards.
10/6/2008
Flur?Gen, Inc. Page 2 of 2
Uday Singh
USingh@FlueGen.com
FlueGet` l Inc.
2355 Main Street, Suite 215, Irvine, CA 92614
Tel (949) 481 3397 Cell (949) 697-1750
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From: DAVID.ROGERS@lw.com [mailto:DAVID.ROGERS@lw.com]
Sent: Monday, October 06, 2008 3:14 PM
To: Uday Singh
Cc: DAVID.ROGERS@lw.com; docallaghan@ci.vernon.ca.us
Subject: FW: FlueGen, Inc./ Vernon NDA
Uday,
Here is a pdf copy of the NDA as executed by the City. Please sign and return when convenient.
Donal and I look forward to seeing you on Wednesday at 11:00 in your offices.
Dave
David B. Rogers
LATHAM & WATKINS LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
Direct Dial: +1.213.891.8236
Fax: +1.213.891.8763
Email: david.rogers@lw.com
http://Www.1w.com
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Latham & Watkins LLP
10/6/2008