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Resolution No. 97291 2 3 4 5 6 7 8 9 10 11 12 13 14 15 11=0 17 18 19 20 21 22 23 24 PAIN 26 27, RESOLUTION NO. 9729 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND RATIFYING THE EXECUTION OF A CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND ADVANCED CLEANUP TECHNOLOGIES, INC. 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; and WHEREAS, Advanced Cleanup Technologies, Inc. ("ACTI") is developing new products to reduce air pollutant emissions (the "Project"); and WHEREAS, the City desires to preserve and protect its rights by entering into a confidentiality agreement with ACTI 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 executed a Confidentiality and Nondisclosure Agreement on or about September 24, 2008 (the "Agreement") with ACTI, 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 Attorney in executing the Agreement on or about September 24, 2008; and, WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of 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 Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the Agreement with ACTI. 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 and ratifies the Agreement with ACTI, a copy of which is attached hereto as Exhibit A and incorporated by reference, and the City Attorney's execution of the Agreement on or about September 24, 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 6th day of October, 2008. Name: Lconis C. Malburg Title: Mayor / A)TEST M NUELA GIRON, Ci y Jerk - 2 - I 1 STATE OF CALIFORNIA ) ss 2 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. 9729, 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, October 6, 2008, and 8 thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of 9 Vernon. 10 11 12 MANUELA ON_ City Clerk (SEAL) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - EXHIBIT A CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This Confidentiality and Nondisclosure Agreement (this "Agreement") is made this 17`h day of September, 2008 by and between Advanced Cleanup Technologies Inc., a Californian Corporation ("ACTI") and City of Vernon, a California chartered city ("Vernon").(ACTI and Vernon, each in connection with Proprietary Information (as defined below) provided by it or on its behalf, the "Discloser" and, in connection with the Proprietary Information received by it or on its behalf, the "Recipient," and together the "Parties"), based on the following facts and circumstances. A. ACTI is developing a new product line in connection with its business which, if successful would constitute a significant advancement in the industry in which ACTI is engaged.. ACTI and Vernon desire to discuss various potential transactions and projects that would use ACTI's proprietary technologies to reduce air pollutant emissions and generate emissions credits whereby Vernon could purchase such credits (collectively, the "Project"). B. In order to determine whether more detailed and comprehensive discussions with Recipient would be productive, Discloser may be required to disclose to Recipient confidential and proprietary information related to Discloser's technology, intellectual property, plans and operations, including the Project. Therefore, Discloser desires that Recipient agree to maintain the confidentiality of the terms of this Agreement, and all other confidential and proprietary information of Discloser disclosed to Recipient during the term of this Agreement. C. Recipient wishes to participate in discussions with Discloser regarding the Project and, for that purpose, is willing to enter into this Agreement to maintain the confidentiality of Discloser's confidential information. Recipient acknowledges that Recipient's agreement to be bound by this Agreement is a condition to discussions with Discloser regarding the subject mater of this Agreement and that Discloser would not be willing to discuss the Project or the Discloser's intentions regarding the Project without the execution of this Agreement. THEREFORE, the parties agree as follows: 1. Proprietary Information. 1.1 Definition of Proprietary Information. Recipient acknowledges and agrees that the following information is confidential and proprietary to Discloser and shall be collectively referred to herein as "Proprietary Information": (a) all information, not publicly available, relating to the business of Discloser (or of any of its subsidiary or affiliated companies) disclosed in writing, diagrams, computers, emails, or any other form or medium by Discloser or its employees, agents, consultants, attorneys and other representatives (collectively, the "Related Parties") to Recipient, whether or not marked as "Confidential" or "Proprietary"; provided, however, that each party agrees to undertake reasonable efforts to designate and/or mark written information subject to this Agreement as "Confidential" or "Proprietary" and to confirm in writing any such information disclosed in non -written format; (b) all information, not publicly available, disclosed by Discloser or one of the Related Parties in the course of an oral exchange, negotiation, meeting, or conversation; and (c) the existence and terms of this 1 Agreement. Such Proprietary Information includes any idea, formula, pattern, device, plan, process or compilation of information which: (i) is, or is designed to be, used in the business of Discloser (or of any of its subsidiary or affiliated companies) or results from its or their research and/or development activities, (ii) is private or confidential in that it is not generally known or available to the public, or (iii) gives Discloser (or any of its subsidiary or affiliated companies) an opportunity to obtain an advantage over competitors who do not know or use it. Notwithstanding anything contained in this Agreement to the contrary, the limitations and prohibitions on use, duplication and disclosure of Proprietary Information as set forth in this Agreement shall apply, effective as of the date hereof, to any and all information disclosed in writing or orally to Recipient prior to the date of this Agreement notwithstanding the fact that such disclosure occurred prior to the date of this Agreement. Recipient acknowledges that the Proprietary Information may include trade secrets of Discloser. 1.2 Disclosure Period. The disclosure period under this Agreement means the period of time during which Discloser will disclose Proprietary Information to Recipient. The disclosure period shall end ninety (90) days from the date of this Agreement unless extended by written agreement of the parties. 1.3 Restriction on Use. Recipient shall not use any Proprietary Information for any purpose other than in connection with the Project (the "Purpose"). All Proprietary Information disclosed by Discloser pursuant to this Agreement shall remain the exclusive property of Discloser. Nothing in this Agreement is intended to give or shall be interpreted as giving Recipient a license of Discloser's patents or to Proprietary Information or the right to use Proprietary Information for other than the Purpose identified above. 1.4 Non -Disclosure of Proprietary Information. Recipient shall keep secret, retain in strictest confidence and prevent the unauthorized duplication, use and disclosure of all Proprietary Information. Recipient shall not disclose Proprietary Information to third parties unless that disclosure is required by law or expressly authorized by Discloser. Recipient shall, upon demand, return to Discloser any and all documents, papers and materials and notes thereon, including copies or reproductions thereof, that contain any Proprietary Information. Recipient shall not duplicate any Proprietary Information and shall not remove or aid in the removal of Proprietary Information from Discloser's premises. Without affecting the generality of the foregoing, Recipient shall not employ the Proprietary Information in competition with the business of Discloser. 1.5 Related Parties. Recipient shall be responsible for any breaches of this Agreement by Recipient's employees, agents, consultants, attorneys and other representatives (collectively, the "Related Parties"). Before allowing any Related Party access to Proprietary Information, Recipient shall give each such Related Party a copy of this Agreement and shall obtain from each such Related Party a written acknowledgement that the Related Party agrees to be bound by this Agreement and agrees to be directly liable to the Discloser for any breach of this Agreement under the same terms as the Recipient 2 2. Standard of Care. Recipient agrees that Recipient will protect the confidentiality of the Proprietary Information through the exercise of no less protection and care than Recipient customarily uses in preserving and safeguarding Recipient's own proprietary or confidential information, but in any case, no less than reasonable care. 3. Expiration. The obligations and restrictions set forth in this Agreement will expire seven (7) years from the date of this Agreement. Recipient's non-use and non -disclosure obligations above shall not apply to such Proprietary Information as Recipient can establish by written documentation: 3.1 is or becomes publicly available without breach of this Agreement by Recipient; 3.2 is released in response to a subpoena, court order or other legal process and is not subject to a protective order; provided, that if disclosure is purportedly required by law, Recipient will promptly give Discloser verbal and written notice of the receipt or notification of such demand, subpoena or court order to permit Discloser to oppose the demand, subpoena or order; 3.3 has been received by Recipient at any time from a source, other than Discloser, lawfully having possession of and the right to disclose such information; or 3.4 is independently developed by Recipient without access to or use of the Proprietary Information of Discloser. Upon expiration of the disclosure period under this Agreement or earlier upon the request of Discloser, Recipient shall return to Discloser all information received under this Agreement, including without limitation, all notes, summaries, correspondence or other documents regardless of the medium in which it is contained, containing information derived from Proprietary Information; provided that the Recipient may retain an archival copy for use (on a confidential basis) solely in the adjudication of a dispute pertaining to this Agreement. In lieu of the foregoing, the Recipient, upon mutual consent, may destroy all copies of the Proprietary Information. 4. Notification of Unauthorized Duplication, Use or Disclosure. Recipient shall promptly advise Discloser in writing if it learns of any unauthorized duplication, use or disclosure (accidental, intentional or otherwise) of Proprietary Information. 5. Notices. Any notice or other communication will be in writing and will be considered to have been given if delivered by hand or sent by certified United States Mail, return receipt requested or overnight courier to the other party at the address stated herein or to such other address as may be specified by either party in a notice to the other. Notice is effective upon receipt. 6. Entire Agreement and Amendments. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous communications, conversations, or negotiations, whether written or oral. This Agreement may only be modified or amended by a writing signed by both parties. 3 7. Waiver and Severability. No provision of this Agreement will be waived and no breach excused unless the waiver or consent is in writing and is signed by the party that is claimed to have waived or consented. If any provision of this Agreement is determined to be invalid or unenforceable, such provision shall be limited to the extent required to make it valid and enforceable, and if necessary, severed from this Agreement. The remaining provisions will continue in full force and effect. 8. Applicable Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of California without regard to conflict of laws provisions. 9. Injunctive Relief. Recipient acknowledges and agrees that a breach or threatened breach of this Agreement will result in irreparable and continuing damage to Discloser for which there will be no fully adequate remedy at law, and Discloser 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. Nothing herein shall prohibit Discloser from pursuing any other available remedy it may have against Recipient for any breach of its obligations hereunder, including the recovery of damages. 10. 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. 11. No Commitment to Future Relationship. Although the parties are entering into this Agreement to discuss the state of Recipient's knowledge of the science and technology relevant to the Project to determine whether further, more detailed and comprehensive discussions would be productive, each party acknowledges that it has no obligation to proceed with further discussion or to enter into a more definitive agreement or to otherwise proceed to enter into a continuing relationship with the other. Unless and until another, more definitive agreement is signed by the parties, neither party has any obligation or liability to the other, except in connection with Proprietary Information as set forth in this Agreement. Executed as of the date first above written. City of Vernon„ California chartered city Advanced Cleanup Technologies, Inc., a l� California corporation By: � I I L11a J . H t •ison By: City Attofey t Attest: -to anuela Giron City Clerk Matthew F Stewart Executive Vice President. 11 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 24, 2008 VIA FEDERAL EXPRESS David B. Rogers, Esq. Latham & Watkins 355 South Grand Avenue Los Angeles, CA 90071-1560 Re: Confidentiality and Nondisclosure Agreement Dear Dave: Enclosed please find two partially executed duplicate originals of the aforementioned Agreement, which need to be signed by the appropriate parties for Advanced Cleanup Technologies, Inc. After execution, please keep one signed original and return the other signed original to the City to the attention of Judy Lehr, City Attorney Department, as soon as possible. If you have any questions, please contact me. Sincerelyq J A. arrison ty At orney JH:em Enclosures cc: Ms. Nelly Giron, City Clerk (w/o encls.) Exc(usive(y Industfial CITY ATTORNEY'S OFFICE INTER -DEPARTMENT MEMORANDUM DATE: October 16, 2008 TO: Manuela Giron, City Clerk g� In FROM: Jeff A. Harrison, City Attorney$ RE: Confidentiality and Nondisclosure Agreement with Advanced Cleanup Technologies, Inc. Dear Nelly: Attached is the fully executed original Confidentiality and Nondisclosure Agreement that was approved by Resolution No. 9729 for your files. JH:j1 Attachment David B. Rogers Direct Dial: +1.213.891.8236 david.rogers@lw.com LATHAM&WATKINSLLP October 10, 2008 VIA FFDF.X Jeff A. Harrison City Attorney City of Vernon 4305 South Santa Fe Avenue Vernon, CA 90058 355 South Grand Avenue Los Angeles, California 90071-1560 Tel: +1.213.485.1234 Fax: +1.213.891.8763 www.lw.com FIRM / AFFILIATE OFFICES Barcelona New Jersey Brussels New York Chicago Northern Virginia Dubai Orange County Frankfurt Paris Hamburg Rome Hong Kong San Diego London San Francisco Los Angeles Shanghai Madrid Silicon Valley Milan Singapore Moscow Tokyo Munich Washington, D.C. File No. 037484-0000 Re: Confidentiality and Nondisclosure Agreement between City of Vernon and ACTI Dear Jeff: Enclosed is an original copy of the referenced agreement for your files. Best regards. i r truly yours, David B. Rogers of LATHAM & WATKINS LLP Enclosure LA\1909143.1 CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This Confidentiality and Nondisclosure Agreement (this "Agreement") is made this 171h day of September, 2008 by and between Advanced Cleanup Technologies Inc., a Californian Corporation ("ACTI") and City of Vernon, a California chartered city ("Vernon").(ACTI and Vernon, each in connection with Proprietary Information (as defined below) provided by it or on its behalf, the "Discloser" and, in connection with the Proprietary Information received by it or on its behalf, the "Recipient," and together the "Parties"), based on the following facts and circumstances. A. ACTI is developing a new product line in connection with its business which, if successful would constitute a significant advancement in the industry in which ACTI is engaged.. ACTI and Vernon desire to discuss various potential transactions and projects that would use ACTI's proprietary technologies to reduce air pollutant emissions and generate emissions credits whereby Vernon could purchase such credits (collectively, the "Project"). B. In order to determine whether more detailed and comprehensive discussions with Recipient would be productive, Discloser may be required to disclose to Recipient confidential and proprietary information related to Discloser's technology, intellectual property, plans and operations, including the Project. Therefore, Discloser desires that Recipient agree to maintain the confidentiality of the terms of this Agreement, and all other confidential and proprietary information of Discloser disclosed to Recipient during the term of this Agreement. C. Recipient wishes to participate in discussions with Discloser regarding the Project and, for that purpose, is willing to enter into this Agreement to maintain the confidentiality of Discloser's confidential information. Recipient acknowledges that Recipient's agreement to be bound by this Agreement is a condition to discussions with Discloser regarding the subject mater of this Agreement and that Discloser would not be willing to discuss the Project or the Discloser's intentions regarding the Project without the execution of this Agreement. THEREFORE, the parties agree as follows: 1. Proprietary Information. 1.1 Definition of Proprietary Information. Recipient acknowledges and agrees that the following information is confidential and proprietary to Discloser and shall be collectively referred to herein as "Proprietary Information": (a) all information, not publicly available, relating to the business of Discloser (or of any of its subsidiary or affiliated companies) disclosed in writing, diagrams, computers, emails, or any other form or medium by Discloser or its employees, agents, consultants, attorneys and other representatives (collectively, the "Related Parties") to Recipient, whether or not marked as "Confidential" or "Proprietary"; provided, however, that each party agrees to undertake reasonable efforts to designate and/or mark written information subject to this Agreement as "Confidential" or "Proprietary" and to confirm in writing any such information disclosed in non -written format; (b) all information, not publicly available, disclosed by Discloser or one of the Related Parties in the course of an oral exchange, negotiation, meeting, or conversation; and (c) the existence and terms of this 1 Agreement. Such Proprietary Information includes any idea, formula, pattern, device, plan, process or compilation of information which: (i) is, or is designed to be, used in the business of Discloser (or of any of its subsidiary or affiliated companies) or results from its or their research and/or development activities, (ii) is private or confidential in that it is not generally known or available to the public, or (iii) gives Discloser (or any of its subsidiary or affiliated companies) an opportunity to obtain an advantage over competitors who do not know or use it. Notwithstanding anything contained in this Agreement to the contrary, the limitations and prohibitions on use, duplication and disclosure of Proprietary Information as set forth in this Agreement shall apply, effective as of the date hereof, to any and all information disclosed in writing or orally to Recipient prior to the date of this Agreement notwithstanding the fact that such disclosure occurred prior to the date of this Agreement. Recipient acknowledges that the Proprietary Information may include trade secrets of Discloser. 1.2 Disclosure Period. The disclosure period under this Agreement means the period of time during which Discloser will disclose Proprietary Information to Recipient. The disclosure period shall end ninety (90) days from the date of this Agreement unless extended by written agreement of the parties. 1.3 Restriction on Use. Recipient shall not use any Proprietary Information for any purpose other than in connection with the Project (the "Purpose"). All Proprietary Information disclosed by Discloser pursuant to this Agreement shall remain the exclusive property of Discloser. Nothing in this Agreement is intended to give or shall be interpreted as giving Recipient a license of Discloser's patents or to Proprietary Information or the right to use Proprietary Information for other than the Purpose identified above. 1.4 Non -Disclosure of Proprietary Information. Recipient shall keep secret, retain in strictest confidence and prevent the unauthorized duplication, use and disclosure of all Proprietary Information. Recipient shall not disclose Proprietary Information to third parties unless that disclosure is required by law or expressly authorized by Discloser. Recipient shall, upon demand, return to Discloser any and all documents, papers and materials and notes thereon, including copies or reproductions thereof, that contain any Proprietary Information. Recipient shall not duplicate any Proprietary Information and shall not remove or aid in the removal of Proprietary Information from Discloser's premises. Without affecting the generality of the foregoing, Recipient shall not employ the Proprietary Information in competition with the business of Discloser. 1.5 Related Parties. Recipient shall be responsible for any breaches of this Agreement by Recipient's employees, agents, consultants, attorneys and other representatives (collectively, the "Related Parties"). Before allowing any Related Party access to Proprietary Information, Recipient shall give each such Related Party a copy of this Agreement and shall obtain from each such Related Party a written acknowledgement that the Related Party agrees to be bound by this Agreement and agrees to be directly liable to the Discloser for any breach of this Agreement under the same terms as the Recipient 2. Standard of Care. Recipient agrees that Recipient will protect the confidentiality of the Proprietary Information through the exercise of no less protection and care than Recipient customarily uses in preserving and safeguarding Recipient's own proprietary or confidential information, but in any case, no less than reasonable care. 3. Expiration. The obligations and restrictions set forth in this Agreement will expire seven (7) years from the date of this Agreement. Recipient's non-use and non -disclosure obligations above shall not apply to such Proprietary Information as Recipient can establish by written documentation: 3.1 is or becomes publicly available without breach of this Agreement by Recipient; 3.2 is released in response to a subpoena, court order or other legal process and is not subject to a protective order; provided, that if disclosure is purportedly required by law, Recipient will promptly give Discloser verbal and written notice of the receipt or notification of such demand, subpoena or court order to permit Discloser to oppose the demand, subpoena or order; 3.3 has been received by Recipient at any time from a source, other than Discloser, lawfully having possession of and the right to disclose such information; or 3.4 is independently developed by Recipient without access to or use of the Proprietary Information of Discloser. Upon expiration of the disclosure period under this Agreement or earlier upon the request of Discloser, Recipient shall return to Discloser all information received under this Agreement, including without limitation, all notes, summaries, correspondence or other documents regardless of the medium in which it is contained, containing information derived from Proprietary Information; provided that the Recipient may retain an archival copy for use (on a confidential basis) solely in the adjudication of a dispute pertaining to this Agreement. In lieu of the foregoing, the Recipient, upon mutual consent, may destroy all copies of the Proprietary Information. 4. Notification of Unauthorized Duplication, Use or Disclosure. Recipient shall promptly advise Discloser in writing if it learns of any unauthorized duplication, use or disclosure (accidental, intentional or otherwise) of Proprietary Information. 5. Notices. Any notice or other communication will be in writing and will be considered to have been given if delivered by hand or sent by certified United States Mail, return receipt requested or overnight courier to the other party at the address stated herein or to such other address as may be specified by either party in a notice to the other. Notice is effective upon receipt. 6. Entire Agreement and Amendments. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous communications, conversations, or negotiations, whether written or oral. This Agreement may only be modified or amended by a writing signed by both parties. 3 7. Waiver and Severability. No provision of this Agreement will be waived and no breach excused unless the waiver or consent is in writing and is signed by the party that is claimed to have waived or consented, If any provision of this Agreement is determined to be invalid or unenforceable, such provision shall be limited to the extent required to make it valid and enforceable, and if necessary, severed from this Agreement. The remaining provisions will continue in full force and effect. 8. Applicable Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of California without regard to conflict of laws provisions. 9. Injunctive Relief. Recipient acknowledges and agrees that a breach or threatened breach of this Agreement will result in irreparable and continuing damage to Discloser for which there will be no fully adequate remedy at law, and Discloser 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. Nothing herein shall prohibit Discloser from pursuing any other available remedy it may have against Recipient for any breach of its obligations hereunder, including the recovery of damages. 10. 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. 11. No Commitment to Future Relationship. Although the parties are entering into this Agreement to discuss the state of Recipient's knowledge of the science and technology relevant to the Project to determine whether further, more detailed and comprehensive discussions would be productive, each party acknowledges that it has no obligation to proceed with further discussion or to enter into a more definitive agreement or to otherwise proceed to enter into a continuing relationship with the other. Unless and until another, more definitive agreement is signed by the parties, neither party has any obligation or liability to the other, except in connection with Proprietary Information as set forth in this Agreement. Executed as of the date first above written. City of Vernon,, California chartered city By: - J Attest: )&��1�) anuela Giron City Clerk Advanced Cleanup Technologies, Inc., a California corporation Y: Matthew F Stewart xecutive Vice President. 11