HomeMy WebLinkAboutAGMT - Poseidon Resources (Water Purchase Agreement) �.
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT ( "Agreement "), entered into and made effective as of
the 14th day of December, 2009, is by and between the City of Seal Beach ( "City ") and Poseidon
Resources (Surfside) LLC ( "Poseidon ") (collectively the "Parties ").
WITNESSETH:
WHEREAS, the Parties, along with other agencies providing water service (collectively, the
City and such other agencies are referred to as the "Water Agencies "), have entered into discussions
and negotiations concerning the possibility of a public - private partnership regarding Poseidon's
Huntington Beach desalination project (the "Project "); and
WHEREAS, in order to proceed with the next stage of the discussions and negotiations, the
City has requested, and Poseidon is willing to provide, certain information that Poseidon considers
proprietary and confidential; and
WHEREAS, Poseidon wishes to protect its proprietary and confidential information against
unauthorized use and disclosure by the City;
NOW, THEREFORE, in consideration of the mutual promises and covenants made herein,
and with the intent to be legally bound hereby, the Parties agree as follows:
1. Confidential Information. The term "Confidential Information," as used in this
Agreement, shall mean information, other than information described in one or more
of clauses (a) through (d) below in this Section , that is provided by Poseidon to the
City. When Poseidon provides Confidential Information in documentary form,
whether hardcopy or electronic, it shall clearly mark it "Confidential." When
Poseidon provides Confidential Information to the City verbally, it shall notify the
City of the confidential nature of the information in writing prior to or immediately
after verbally conveying the information. In addition to the foregoing requirements,
each item of Confidential Information provided either in documentary form or
verbally shall be accompanied by a writing stating the grounds for Poseidon's
assertion that the information is of the nature described in Section 6 below and is
not within any of the exclusions listed in clauses (a) through (d) in this Section.
Poseidon shall have the right to determine, in its sole judgment, what information it
will provide to the City. Confidential Information shall not include the following:
(a) Information that, at the time of disclosure by Poseidon, is publicly available
or generally known or available to third parties, or information that later
becomes publicly available or generally known or available to third parties
through no act or omission by the City;
. •
(b) Information that the City can demonstrate was in its possession prior to
disclosure by Poseidon;
(c) Information received by the City from a third party who, to the City's
knowledge and reasonable belief, did not acquire such information on a
confidential basis either directly or indirectly from Poseidon; and
(d) Information the City can demonstrate was independently developed by it or'a
third party or for it or a third party and that was not obtained, in whole or in
part, from Poseidon.
2. Disclosure and Use of Confidential Information. The City shall not, without
Poseidon's prior written consent, disclose to any third party, firm, corporation or
entity such Confidential Information, provided, however, the City may discuss
Confidential Information with other Water Agenc(ies) that have entered into a
confidentiality agreement with Poseidon. Internally, the City shall limit the
disclosure of the Confidential Information to only those officers, employees and
agents (including its governing board or committees, attorneys, accountants, bankers
and consultants) of the City reasonably necessary to evaluate the Confidential
Information and/or the Project. If the City internally evaluates Confidential
Information and/or the Project with its governing board or committees, the City shall
do so without disclosing the Confidential Information in a public meeting, to the
extent permitted by Section 54950 et seq. of the California Government Code.
Should the City staff determine that a need exists to disclose Confidential
Information in a public meeting, the City will notify Poseidon of this need and
identify the information to be disclosed prior to posting the agenda for the meeting.
The City shall use the Confidential Information received from Poseidon under this
Agreement only for the purpose of its internal evaluation of the Project. In
complying with its obligations under this Agreement, the City shall use reasonable
means to prevent unauthorized disclosure and to protect the confidentiality of the
Confidential Information. Notwithstanding the City's exercise of its right to discuss
Confidential Information with another Water Agenc(ies) that have entered into a
confidentiality agreement with Poseidon, the City shall not have any obligation with
regard to limiting or preventing disclosure of Confidential Information by such other
Water Agenc(ies) or with regard to such other Water Agenc(ies)' performance of
their confidentiality agreements, and the City's and such other Water Agenc(ies)'
obligations under their respective confidentiality agreements shall not be construed
as joint and several.
3. Required Disclosure. In the event the City is requested or required by oral
questions, interrogatories, requests for information or documents, subpoena, civil
investigation, demand or similar process to disclose any Confidential Information
received pursuant to this Agreement, the City will notify Poseidon immediately of
such request(s) and will use reasonable efforts to lawfully delay disclosure until an
appropriate protective order may be sought by Poseidon and/or a waiver of
compliance with the provisions of this Agreement granted by Poseidon; provided,
-2-
• •
however, such measures shall not include initiating or defending litigation or
otherwise contesting the validity of a demand for disclosure pursuant to law or order
of a court or regulatory body, unless the City and Poseidon first reach agreement
regarding the engagement of legal counsel for the City and the payment of the City's
legal and related expenses in such litigation or contest. If by the earlier of seven 7)
days after being notified by the City of such request(s) or two days prior to the
disclosure date, Poseidon does not either grant a waiver or seek a protective order,
then the City may comply with the request(s) and such disclosure of Confidential
Information will not constitute a breach of this Agreement.
4. Return of Documents. Either Party may elect at any time to terminate this
Agreement. The City will return any and all Confidential Information upon written
request from Poseidon, including all originals, copies, translations, transcriptions or
any other form of said material, without retaining any copy or duplicate thereof. To
the extent permitted by law and if Poseidon has not requested the return thereof
pursuant to the preceding sentence, the City shall promptly destroy any and all
electronic and hardcopy versions of Confidential Information, as well as any
documents consisting of excerpts or portions of materials previously identified by
Poseidon as Confidential Information. The City will not retain any Confidential
Materials in its agency files.
5. Survival of Obligations. Regardless of any termination of any business relationship
between the Parties, the obligations and commitments established by this Agreement
shall remain in full force and effect for four (4) years from the day and year first
hereinabove written or until such time as the Parties have entered into an agreement
providing otherwise.
6. Nature of Information. The City hereby accepts the representations of Poseidon that
the Confidential Information is of a special, unique, unusual, extraordinary, and
intellectual character, that money damages would not be a sufficient remedy for any
breach of this Agreement by the City, and that specific performance and injunctive
or other equitable remedies for any such breach shall be available to it. The Parties
also acknowledge that the interests of Poseidon in such Confidential Information
may be irreparably injured by disclosure of such Confidential Information. The
remedy stated above may be pursued in addition to any other remedies applicable at
law or equity for breach of this Agreement. Should litigation be instituted to enforce
any provision hereof, the Party that prevails will be entitled to recover all costs,
including reasonable legal fees, expert costs and costs of investigation.
7. Governing Law. The laws of the State of California shall govern this Agreement.
8. No Other Agreement. It is expressly understood that this Confidentiality Agreement
is not and shall not be construed as any form of a letter of intent or agreement to
enter into any type of transaction.
-3-
•
9. No License or Rights. Neither this Agreement, nor the transfer of Confidential
Information hereunder, shall be construed as granting to the City any license or
rights to any information or data now or hereafter owned or controlled by Poseidon.
10. Except as may be required by law, without the prior consent of Poseidon, the City
will not (a). confirm or deny any statement made by a third party regarding the
Confidential Information, (b) disclose to any person the fact that Confidential
Information has been made available to it by Poseidon, or (c) disclose any of the
terms or conditions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on the day
and year first herein above written.
THE CITY OF SEAL BEACH POSEIDON RESOUR . ES (SURFSIDE) LLC
BY �` BY 4 i k 1 D
1
DATE 5- 2-Li -Jo DATE J - � ' - / v
-4-
♦ • , •
First Amendment to
Memorandum of Understanding
THIS FIRST AMENDMENT ( "First Amendment ") TO THE MEMORANDUM OF
UNDERSTANDING dated May 28, 2008 ( "MOU ") is made by and between all the original
signatories to the MOU, to wit, Poseidon Resources (Surfside) LLC and its affiliates (collectively,
"Poseidon "), the City of Anaheim Public Utilities Department, El Toro Water District, Irvine Ranch
Water District, Laguna Beach County Water District, Mesa Consolidated Water District, Moulton
Niguel Water District, City of Santa Ana Public Works Agency, Santa Margarita Water District,
South Coast Water District, Trabuco Canyon Water District (collectively "MOU Retail Agencies "),
and the Municipal Water District of Orange County ( "MWDOC ").
WHEREAS, Poseidon, the MOU Retail Agencies and MWDOC previously executed the
MOU to define how they will interact with each other and with outside parties in connection with
discussion and negotiation of a long -term water purchase agreement or multiple long -term water
purchase agreements through which some or all of them may purchase water from Poseidon's
Huntington Beach Desalination Project ( "Project "); and
WHEREAS, numerous other public and private water retailers have developed an interest in
joining these discussions and negotiations with Poseidon on an equal basis with the MOU Retail
Agencies; and
WHEREAS, the MOU (1) does not obligate any party to the MOU to enter into a water purchase
agreement with any other party to the MOU, and (2) does not provide Poseidon, the MOU Retail Agencies
or MWDOC with exclusive negotiating rights or obligations; and
WHEREAS, the interests of all parties to the MOU will be served by expanding the number of
MOU Retail Agencies under the MOU, which will expand the potential market for Project water, increase
efficiency in the dissemination and analysis of Project information by and among Orange County water
retailers, and spread certain fixed costs of the negotiation process among a greater number of potential
participants; and
WHEREAS, in the interest of avoiding the cost, delay and inefficiency of repeated written
amendments signed by all parties, as currently required by Section XI(b) of the MOU, the undersigned
wish to amend the MOU to allow additional potential water purchasers to join the MOU by a simple
agreement approved and executed only by Poseidon and the potential water purchaser, with notice to all
other parties;
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, covenants and
conditions contained herein, Poseidon, the MOU Retail Agencies, and MWDOC agree as follows:
• Page 1
• •
1. The introductory paragraph of the MOU is hereby amended as follows, with all new text
underscored:
Poseidon Resources (Surfside), LLC and its affiliates (collectively
"Poseidon "), the Participating Retail Agencies, and MWDOC (each
hereinafter referred to as a "Party" and collectively the "Parties ")
desire to enter into this Memorandum of Understanding (the "MOU ")
to define how the Parties will interact with each other and with
outside parties in connection with discussion and negotiation of a
long -term water purchase agreement or multiple long -term water
purchase agreements ( "WPA" and "WPAs" respectively) through
which some or all of the Participating Retail Agencies may purchase
water from Poseidon's Huntington Beach Desalination Project
( "Project "). Other potential purchasers of Project water may join the
list of Participating Retail Agencies at any time with full rights and
obli . ations under the MOU without written a • royal of other
Participating Retail Agencies or MWDOC, by executing an
"Amendment to List of Participating Retail Agencies" in the form
attached hereto as Exhibit A and giving written notice to all Parties.
2. Section XI(b) of the MOU is hereby amended as follows, with all new text underscored:
b) This MOU shall be governed by the laws of the State of California,
United States of America, and may only be amended in a writing
signed by all Parties, except as expressly provided in this MOU, as
amended. Any legal action filed to enforce this MOU shall be
brought in state or federal court, as appropriate, in the State of
California.
3. Upon full execution of an "Amendment to List of Participating Retail
Agencies" and notice to all Parties, Poseidon shall provide all new
Participating Retail Agencies with copies of any and all materials previously
distributed to the Participating Retail Agencies under Section IV of the MOU,
"Uniform Disclosure of Project Information."
4. Each party to this First Amendment represents and warrants that (a) it is an entity duly
organized, validly existing and in good standing under the laws of the jurisdiction in which
it is organized and is qualified to do business in all jurisdictions where it is required to be
qualified; (b) it has the necessary power and authority to enter into and perform its
obligations under this First Amendment and the MOU, as amended; (c) the person(s)
signing this First Amendment is duly authorized to execute this First Amendment on
behalf of the party represented; (d) upon execution, this First Amendment and the MOU,
as amended, will be enforceable against each party in accordance with its terms, except as
such enforceability may be inconsistent with applicable laws concerning bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors rights
generally; and (e) the execution and delivery of this First Amendment and performance by
Page 2
•
•
the executing party under this First Amendment and the MOU, as amended, is not known
to conflict with any agreement, law, rule, regulation, order, judicial decree or
administrative code to which such party is subject.
ACKNOWLEDGED AND AGREED:
Poseidon es es (Surfside) LLC
By:
Name:
Title:
City of Anaheim Public Utilities. El Toro Water District
By: By:
Name: Name:
Title: Title:
Laguna Beach County Water Irvine Ranch Water District
Authority
By: By:
Name: Name:
Title: Title:
Mesa Consolidated Water District Moulton Niguel Water District
By: By:
Name: Name:
Title: Title:
Page 3
• •
Santa Margarita Water District South Coast Water District
By: By:
Name: Name:
Title: Title:
Trabuco Canyon Water District City of Santa Ana Public Works Agency
By: By:
Name: Name:
Title: Title:
Municipal Water District of Orange
County
By:
Name:
Title:
Page 4
. • •
EXHIBIT A
AMENDMENT TO LIST OF PARTICIPATING RETAIL AGENCIES
•
THIS AMENDMENT TO THE LIST OF "PARTICIPATING RETAIL AGENCIES"
DEFINED IN THE MEMORANDUM OF UNDERSTANDING DATED , 2008 ( "MOU "),
AS AMENDED, is made by and between Poseidon Resources (Surfside) LLC and its affiliates
(collectively, "Poseidon ") and
1. Pursuant to the First Amendment to the MOU, executed by all original Parties to the
MOU, [Name ] is hereby added as a full "Participating Retail
Agency" under the MOU, as amended. No express approval or authorization by the
governing boards of the previously existing Participating Retail Agencies is required.
2. [Name ] shall be responsible for sending written notice and a
photocopy of this Amendment to all previously existing Participating Retail Agencies
within 10 days of the date of final execution of this Amendment. [Name
shall request an updated list of Participating Retail Agencies from the Municipal Water
District of Orange County.
3. Each party to this Amendment represents and warrants that (a) it is an entity duly
organized, validly existing and in good standing under the laws of the jurisdiction in which
it is organized and is qualified to do business in all jurisdictions where it is required to be .
qualified; (b) it has the necessary power and authority to enter into and perform its •
obligations under this Amendment and the MOU, as amended; (c) the person(s) signing
this Amendment is duly authorized to execute this Amendment on behalf of the party
represented; (d) upon execution, this Amendment and the MOU, as amended, will be
enforceable against each party in accordance with its terms, except as such enforceability
may be inconsistent with applicable laws concerning bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors rights generally; and
(e) the execution and delivery of this Amendment and performance by the executing party
under the MOU, as amended, is not known to conflict with any agreement, law, rule,
regulation, order, judicial decree or administrative code to which such party is subject.
ACKNOWLEDGED AND AGREED:
Poseidon sourc s ur�) LLC [RETAIL AGENCY]
By: By:
Name: Sc.olr y ti v & , Name: O'
Title: V cts4.044wv Title: Cf4
C_/4\ c2);< 55-1 c3e...c-h
Page 5
l • •
May 24,2010
Mr. Andrew Kingman
Chief Financial Officer
Poseidon Resources
501 W. Broadway Suite 2020
San Diego,CA 92101
Re: Letter of Intent Regarding Potential Water Purchase Agreement
Dear Mr. Kingman:
The purpose of this letter(the"Letter of Intent") is to set forth certain non-binding understandings
between the City of Seal Beach and Poseidon Resources("Poseidon")relating to an interest in the potential
purchase of up to NED acre feet of desalinated water from a seawater desalination plant to be
built by Poseidon at its site in the City of Huntington Beach.
I. Water Purchase Agreement. The City of Seal Beach along with, several other Orange County
retail water agencies(the"Participating Retail Agencies"),and Poseidon have entered in a Memorandum of
Understanding(Attached as Exhibit B)to review the Participating Retail Agencies interest in purchasing
desalinated water from the Huntington Beach Project("Project").The City of Seal Beach and Poseidon are
interested in beginning good faith negotiations of a long term water purchase agreement(the"Water
Purchase Agreement")with the proposed terms and conditions described in Exhibit A hereto (the"Term
Sheet")to be used as a starting point for negotiations.
2.No Liability. Except for the obligation to negotiate in good faith and for Section 3 below,the
provisions of this Letter of Intent are non-binding and do not constitute and will not give rise to any legally
binding obligation on the part of the Parties hereto. Nothing contained in this Letter of Intent(including the
Term Sheet)shall be deemed or construed to be an agreement or obligation of either party to conclude
negotiations by the execution of the Water Purchase Agreement.The provisions of this Letter of Intent
(including the Term Sheet)do not create any rights on the part of either Party.
3. Costs. Each of the Parties shall be responsible for its own costs and expenses relating to the
review, negotiation and documentation and of a Water Purchase Agreement except as otherwise agreed in
the Memorandum of Understanding.
4. Permitting. Poseidon and the City of Seal Beach each currently have an interest in the expedited
development of the Project. The City of Seal Beach will cooperate with Poseidon as appropriate in
Poseidon's efforts to obtain all necessary regulatory approvals and permits to enable the timely
construction of the Project
5. Governing Law. This Letter of Intent shall be governed by and construed in accordance with the
laws of the State of California without reference to its conflicts of laws principles.
6. Counterparts. This Letter of Intent may be executed in one or more counterparts, each of which,
when executed and delivered, shall be an original, but all of which together shall constitute but one and the
same instrument.
If this Letter of Intent properly reflects our understanding,please indicate by signing in the space
provided below and returning a copy to the undersigned.
Sincerely,
-WaterDistriet C'ci) °ge
By:
(-4\ R C- ac7 1
General Manager
AGREED AND ACCEPTED:
Poseidon Resources
By:
Andrew Kingman
Chief Financial Officer