Resolution No. 09939 1 RESOLUTION NO. 9939
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
4 VERNON APPROVING AND AUTHORLZING THE EXECUTION OF A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT BY AND
5 BETWEEN THE CITY OF VERNON AND RED HAWK ENERGY, LLC
6 WHEREAS, the City of Vernon (the "City") owns and operates
7 its own electric system which services the City's constituents; and.
8 WHEREAS,.-Red Hawk Energy, LLC ("RHE") is interested in a
9 potential business: transaction with the City relating to land near
10 Tehachapi, California in connection with construction and operation of
11 a-conversion, project (the "Project"); and
12 WHEREAS, the. City desires to preserve and protect its rights
13 by entering into a confidentiality and non-disclosure agreement with
14 RHE in a manner that preserves the confidentiality and protected
15 status of the documents, materials, and information to be exchanged,
16 retained and used; and
17 WHEREAS; to facilitate discussions.relating to the Project,
18 the Director of .Utilities & Government Infrastructure recommends that
19 a Confidentiality and Non-Disclosure Agreement be executed with RHE;
20 and
21 WHEREAS, the City Council of the City of Vernon has
22 determined that,- pursuant to the provisions of subsection (a) of
23 Section 2.27 of the Vernon City -Code, it is in the public interest and'
24 necessity to enter into the Agreement with RHE.
25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
26 CITY OF VERNON AS FOLLOWS:
27 SECTION 1: The City .Council of the City of Vernon hereby
28 finds and determines that the recitals contained hereinabove are true
1 and correct.
2 SECTION 2: The-City Council of the City of Vernon hereby
3 approves the Confidentiality and Non-Disclosure Agreement with RHE; a
4 copy of which is attached hereto and incorporated. by reference as
5 Exhibit A.
6 SECTION 3: The City Council of the City of Vernon hereby
7 authorizes. the Mayor or Mayor Pro-Tem to execute said Agreement with
8 Red Hawk Energy, LLC for and on behalf of, the City of Vernon and the
9 City Clerk or Deputy City Clerk is hereby authorized to attest thereto.
10 SECTION 4: -The City Council of the City of Vernon hereby
11 directs the City Clerk, or-her designee, to send one fully executed
12 Agreement to Red Hawk Energy, LLC.
13 SECTION 5: The City Clerk of the City of Vernon shall
14 certify to the passage of this resolution, and thereupon and thereafter
15 the same shall be in full force and effect.
16 APPROVED AND ADOPTED this 27th day of April, 2009.
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20 Name: Hilario Gonzales
21 Title: Mayor / Mayor-Pro-Tem
22 ATTEST:`
23 ~
24 UELA GIRON,~Ci y Clerk
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1 STATE OF CALIFORNIA )
2 ) ss
COUNTY OF LOS ANGELES )
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4 I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
5 certify that the foregoing Resolution, being Resolution. No. 9939, 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; April 27, 2009, and
8 thereafter was duly signed. by the Mayor or Mayor Pro-Tem of the City of
9 Vernon.
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11
MANUELA GIRON, City Clerk
12
13 (SEAL)
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EXHIBIT A
I
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This AGREEMENT is made .this day of ~ 2009 between RED
HAWK ENERGY, LLC ("RHE") and -G-~~-' ("C TOMER").
I/"~Yro~
1. RHE is an indirect owner of a coal fired power plant which is being converted to a
bio-mass fired power plant.
2. CUSTOMER -may desire to purchase power from the plant and to consider other
investment opportunities with RHE.
3. CUSTOMER and RHE desire to evaluate potential investment and cost saving
opportunities ("Projects").
4. CUSTOMER and RHE desire to disclose and evaluate information relating to
their respective projects and other potential projects disclosed by one party to the other.
5. RHE and CUSTOMER have determined to establish terms governing the
confidentiality of certain information one party ("OWNER") may disclose to the other party
("RECIPIENT"):
NOW, THEREFORE, in .consideration of gaining access to such confidential
information, RHE and CUSTOMER agree as follows:
1. Confidential Information.
(a) Definition. Confidential Information shall mean all technical and
,nontechnical information relating to -the Projects which OWNER designates as confidential and
proprietary to RECIPIENT or is disclosed by OWNER or on its behalf whether directly or
indirectly, in writing, or by inspection of equipment or software, to RECIPIENT or any of its
employees or agents. This Confidential Information includes, but is not limited to all: products
and product specifications, costs of operations, 'financial records and analysis, marketing and
accounting plans, procedures and strategies; business. methods, policies and procedures; trade
secrets or other similar information or processes of OWNER; computer software; manuals,
reports or information and samples.
(b) Non-Disclosure By RECIPIENT. RECIPIENT .acknowledges that the
Confidential Information is a valuable, proprietary asset of OWNER and the RECIPIENT has a
duty to maintain the Confidential Information as confidential and secret and to protect such
Confidential Information from disclosure by all reasonable means. RECIPIENT will not use for
personal benefit, or disclose to, or use for the direct or indirect benefit of any person or entity
other than OWNER, any Confidential Inforrnatiori which RECIPIENT learned or acquired from
OWNER. RECIPIENT shall only disclose the Confidential Information to subsidiaries, affiliated
entities, principal officials, employees or individuals who have a need to know for the benefit of
RECIPIENT. This Agreement and the terms hereof shall be binding upon each such official,
employee, individual, and entity to whom the Confidential Information was disclosed.
VJEST12169651 ~.1
(c) Permissible Disclosures: Notwithstanding the foregoing, RECIPIENT
-may disclose Confidential Information to:
(i) Its subsidiaries; affiliates; or any of its or its subsidiaries' or
affiliates' directors, officers, employees, advisors, representatives,
attorneys, accountants, -and auditors (collectively, the
"Representatives") whom it determines ought to know .such
information for the benefit of RECIPIENT to evaluate the Projects;
and each such Representative shall be subject to the provisions
hereof; and
(ii) After prpmpt written notice to the OWNER specifying the reason,
any governmental. agency or regulatory body having or claiming to
have authority to regulate or oversee any aspect of RECIPIENT'S
business or that of its Representatives in connection with the
exercise of such authority or claimed authority;
In the event RECIPIENT or any of its Representatives is requested or required (orally or in
writing, by interrogatory, court order, subpoena, administrative proceeding, civil investigatory
demand, or any .similar legal process or by statute) to .disclose any of the Confidential
Information, RECIPIENT or such Representative, in the absence of a protective order, may
disclose such information without liability. RECIPIENT, however, shall, to the extent permitted
by law and as promptly as practicable, notify OWNER prior to such disclosure by RECIPIENT
so that OWNER-may seek at the OWNER's sole expense a protective order or other appropriate
remedy.
(d) Non-Confidential Information. Confidential Information shall not include
any information which:
(i) -Was known to or in possession of RECIPIENT prior to its
disclosure hereunder by OWNER;
(ii} was generally available to or generally known by the public.atthe
time of its disclosure hereunder by OWNER;
(iii} after its disclosure hereunder by OWNER became generally
available to or generally known by the public through nb breach by
:RECIPIENT of its obligations herein; or
(iv) was independently developed without use of any Confidential
Information of OWNER.
2. Return of Documents and Other Property. Upan the earlier of:
(a) OWNER's written request; or
(b) completion of work utilizing Confidential Information,
2
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RECIPIENT shall return to OWNER ail tangible farms of Confidential Information of OWNER
including, without limitation, documents, samples and computer software and data storage
devices, and any other property. of OWNER in RECIPIENT'S possession, retaining no copies.
RECIPIENT shall not' reverse engineer, .disassemble or decompile any prototypes, software or
other tangible objects which embody the Confidential Information of OWNER. RECIPIENT
agrees all Confidential Information of any kind provided to RECIPIENT by OWNER shall.
remain the sole property of OWNER.
3. Remedies. Each party agrees that money damages would not be a sufficient
remedy for any breach of this Agreement .and each parry shall be entitled to seek specific
performance and injunctive or other equitable relief as a remedy fox such breach. Such remedy
shall not be deemed to be the exclusive remedy for- breach of this Agreement but shall be in
addition to all other remedies available at law or in equity.
4, Term. This Agreement shall be for a period of three (3) years from the date
hereof.
5. Successors and Assigns. The terms of this Agreement shall be binding upon any
successors, assigns or agents of MPCC and CUSTOMER; however, this Agreement may not be
assigned by MPCC or CUSTOMER without the prior written consent of the other party.
6. Severability. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in
all respects as if the invalid or unenforceable provisions had been omitted.
7. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
8. Entire Agreement and Modifications. The terms and provisions contained herein
constitute- the entire Agreement between the parties and shall supersede any previous
communications, representations or agreements, whether written or oral, with respect- to the
subject matter. Any modifications of this Agreement must be agreed in writing and signed by
both parties.
9. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to any conflict of laws
provisions thereof.
3
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IN WITNESS WHEREOF, the parties have executed this Agreement on this 16th -day of
April 2009
ACCEPTED: CITY:
RED HAWK El~TERGY L1t.C CITY OF VERNOI~
By: By:
Name: ~f ~-~t~ ,e ~ ~~G~~ r~ Name:
Title: ~ ~ d ~ Title Mavor /Mayor Pro-Tem
Date: ~ ~ I T~Z'~ Date:
APPROVED AS TO FORM: ATTEST:
Jeff A: Harrison, City Attorney Manuela Giron, City Clerk
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4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
May 6, 2009
Mr. Michael L. Hawkins, President
8302 Espresso Drive, Suite 130
Bakersfield, CA 93312
Re: Confidentiality Agreement
Dear Mr. Hawkins:
Transmitted herewith is a fully executed agreement as referenced
above, approved by City Council. on April 27, 2009, through
Resolution No. 9939.
If you have .any questions regarding this matter, please call Mr.
Donal O'Callaghan, at (323) 583-8811 ext. 834.
Very-.truly yours,
Ne ly ~5n
City Clerk
NG:km
c: Donal O'Callaghan
Resolution No. 9939
Agreement File No. 09-067
Ea~cCusiveCy IndustriaC
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
T~
This AGREEMENT is made this ,J~s day of ~ 1 , 2009 between RED
HAWK ENERGY, LLC ("RHE") .and G ~ T o F ("C STOMER").
~ Y rr ~o rt-
1. RHE is an indirect owner of a coal fired power plant which is being converted to a
bio-mass fired power plant.
2. CUSTOMER may desire to purchase power from the plant and to consider other
investment opportunities with RHE.
3. .CUSTOMER and RHE desire to evaluate potential investment and cost saving
opportunities ("Projects").
4. CUSTOMER and RHE desire to disclose and evaluate information relating to
their respective projects and other potential projects disclosed by one party to the other.
5. RHE and CUSTOMER have determined to establish terms governing the
confidentiality of certain information one party ("OWNER") may disclose to the other parry
("RECIPIENT").
NOW, THEREFORE, in consideration of gaining access to such confidential
information, RHE and CUSTOMER agree as follows:
1. Confidential Information.
(a) Definition. Confidential Tnformation shall mean all technical and
nontechnical information relating to the Projects which OWNER designates as confidential and
proprietary to RECIPIENT or is disclosed by OWNER or on its behalf whether directly or
indirectly, in writing, or by inspection of equipment or software, to RECIPIENT or any of its
employees or agents. This Confidential Information includes, but is not limited to all: products
and product specifications, costs of operations, fmancial records and analysis, marketing and
accounting plans, procedures and strategies; business methods, policies and procedures; trade
secrets or other similar information or processes of OWNER; computer software; manuals,
reports or information and samples.
(b) Non-Disclosure B~ RECIPIENT. RECIPIENT acknowledges that the
Confidential Inforrnatian is a valuable, proprietary asset of OWNER and the RECIPIENT has a
duty to maintain the Confidential Information as confidential and secret and to protect such
Confidential Information from disclosure by all reasonable means. RECIPIENT will not use for
personal benefit, or disclose to, or-use for the direct or indirect benefit of any person or entity
other than OWNER, any Confidential Information which RECIPIENT learned or acquired from
OWNER. RECIPIENT shall only disclose the Confidential Information to subsidiaries, affiliated
entities, principal officials, employees or individuals who have a need to know for the benefit of
RECIPIENT. This Agreement and the terms hereof shall be binding upon each such official,
employee, individual, and entity to whom the Confidential Information was disclosed.
WEST~21696517.1
(c) Permissible Disclosures: Notwithstanding the foregoing, RECIPIENT
may disclose Confidential Information to:
(i) Its subsidiaries; affiliates; or any of its or its subsidiaries' or
affiliates' directors, officers, employees, advisors, representatives,
attorneys, accountants, and auditors (collectively, the
"Representatives") whom it determines ought to know such
information for the benefit of RECIPIENT to evaluate the Projects;
and each such Representative shall be subject to the provisions
hereof; and
(ii) After prpmpt written notice to the OWNER specifying the reason,
any governmental agency or regulatory body having or claiming to
have authority to regulate or oversee any aspect of RECIPiENT's
business or that of its Representatives. in connection with the
exercise of such authority or claimed authority;
In the event RECIPIENT or any of its Representatives is requested or required (orally or in
writing, by interrogatory, court order, subpoena, administrative proceeding, civil investigatory
demand, or any similar .legal process or by statute) tq disclose any of -the Confidential
Information, RECIPIENT or such Representative, in the absence of a protective order, may
disclose such information without liability. RECIPIENT, however, shall, to the extent permitted
by .law and as promptly as practicable, .notify OWNER prior to such disclosure by RECIPIENT
so that OWNER may seek at the OWNER's sole expense a protective order or other appropriate
remedy.
(d) Non-Conf dential Information. Confidential Information shall not include
any information which:
(i) Was known to or in possession of RECIPIENT prior to its
disclosure hereunder by OWNER;
(ii) was generally available to or generally known by the public at the
time of its disclosure hereunder by OWNER;
(iii) after -its disclosure hereunder by OWNER became generally
available to or generally known by the public through no breach by
RECIPIENT of its obligations herein; or
(iv) was independently developed without use of .any Confidential
Information of OWNER. .
2. Return of Documents and Other Property. Upon the earlier of:
(a) OWNER's written request; or
(b) completion of work utilizing Confidential Information,
2
wEST~21696517.1
RECIPIENT shall return to OWNER all tangible forms of Confidential Information of OWNER
including, without limitation, documents, samples and computer software and data storage
devices, and any other property of OWNER in RECIPIENT'S possession, retaining no copies.
RECIPIENT shall not reverse engineer, disassemble or decompile any prototypes, software or
other tangible objects which embody the Confidential Information of OWNER. RECIPIENT
agrees all Confidential Information of any kind provided to RECIPIENT by OWNER shall
remain the sole property of OWNER.
3. Remedies. Each parry agrees that money damages would not be a sufficient
remedy for any breach of this Agreement and each party shall be entitled to seek specific
performance and injunctive or other equitable relief as a remedy for such breach. Such remedy
shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in
addition to all other remedies available at law or in equity.
4. Term. This Agreement shall be for a period of three (3) ,years from the date
hereof.
5. Successors and Assigns. The terms of this Agreement shall be binding upon any
successors, assigns or agents of MPCC and CUSTOMER; however, this Agreement may not be
assigned by MPCC or CUSTOMER without the prior written consent of the other party.
6. Severability. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in
all respects as if the invalid or unenforceable provisions had been omitted.
7. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the- same
instrument.
8. Entire Agreement and Modifications. The terms and provisions contained herein
constitute the entire Agreement between the parties and shall supersede any previous
communications, representations or agreements, whether written or oral, with respect to the
subject matter. Any modifications of this Agreement must be agreed in writing and signed by
both parties.
9. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to any conflict of laws
provisions thereof.
3
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IN WITNESS WHEREOF, the parties have executed this Agreement on thisl6th day of
April ,2009
ACCEPTED: CITY:
RED HAWK ENERGY LLC CITY OF VERNON
Name: ~~ir~c/lTS~w~ •as Name; Hilario Gonzales
Title: -s ~ ~ c~ ~ Yc,.~ Title Mayor /Mayor Pro-Tem
Date: ~a r: ~ / ~ ~-ta Date: _ ~ D ~~at~
T
APPROVED AS TO FORM: ATTEST:
Je n, City Attorney Manuela Giron, C .-C rk
4
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STAFF REPORT
LIGHT & POWER
DATE: April 21, 2009
TO: Mayor and City Council
FROM: Donal O'Calla han Directoir of Utilities & Governmentlnfrastructure
g ,
RE: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT WITH RED HAWK
ENERGY, LLC AND THE CITY OF VERNON
The City of Vernon (COV) is interested in entering into a Confidentiality and-.Non-Disclosure.
Agreement. with Red Hawk Energy, LLC (RHE).to discuss a new project in Kern County.
The: project is a conversion project of the Mount Poso Cogeneration .facility, managed by Kern
County based Millennium Energy, LLC currently acoal-fired-base load. 49.5 MW to a renewable
duel-woody biomass fueled-facility by 2010. The forecas# output of the completed renewable
..power. generation facility will- be approximately 40 MW. The conversion: projecf has already
been pre-approved by the California Energy Commission.. The agreement is for a period of
three (3) years.
Further, RHE would like to discuss with the City of Vernon, the. following:
- RHE would- like to provide details of the-coal fired planf conversation to bio-mass firing of
the power plant,
- COV may desire to purchase .power from the plant and consider other investment
opportunities;
- COV and RHE desire to .disclose and evaluate.- information. relating to their respective -
projects and other potential projects disclosed by-one party to another, and-
- COV .and. RHE may .desire to .evaluate potential investment and. cost. saving
opportunities.
Recommendation:
That the City of Vernon enters into the Confidentiality and Non-Disclosure Agreement with Red
Hawk Energy, LLC,
If you have any questions, please call me at extension 834.
DOC: rmt
Attachments
c: Project Control
Document Control
pF v~R
c
7
INTEROFFICE z~~~~~~~ ~ , MEMORANDUM
.UTILITIES & GOVERNMENT INFRASTRUCTURE DEPARTMENT
Ai'PR09f~1~ ,al~~; ~ 'Cry ~1~'`l ~~~~i~Cj~
DATE: April 21, 2009 CITY CLE K OiST is3u ON
TO: Eric Fresch
City Administrator
FROM: Donal O'Callaghan
Director of Utilities & Government Infrastructure
SUBJECT: CONFIDENTIALITY AND. NON-DISCLOSURE AGREEMENT WITH RED HAWK
ENERGY, LLC AND THE CITY OF VERNON
The City of Vernon (COV) is interested in entering into a Confidentiality and Non-Disclosure-
Agreement with Red Hawk Energy, LLC (RHE) to discuss a new project in Kern County. The
project is a conversion project of the Mount Poso Cogeneration facility, currently acoal-fired
base load 49.5 MW to a renewable duel-woody biomass fueled facility by 2010.
We are recommending that. the City of Vernon enter into this agreement .with RHE. The
agreement is for a period of three (3) years. As soon as the agreement is approved, we will
meet with RHE to discuss the following:
- RHE would like to provide details of the coal fired plant conversation to bio-mass firing of
the power plant, .
- COV may desire to purchase power from the plant and consider other investment
opportunities;
- COV and RHE desire to disclose and evaluate information relating to -their respective
projects and other potential projects disclosed by one party to another, and
- COV and RHE may desire to evaluate potential investment .and cost saving
opportunities.
Attached for your information are a copy of the agreement and Staff Report. If you have any
questions, please call me at extension 834.
DOC: rmt
Attachments
c: Nelly Giron, original
Judy Lehr - U"Y' i ~ ~ ~ cc.~Y2ew~~v~~
Project Control '
Document Control