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Resolution 2021-R-27

Approval of Execution of Non-Disclosure Agreement with Retail Specialists, LLC

BE IT RESOLVED by the City Council of the City of Irondale that Mayor James D. Stewart, Jr. is authorized to execute a Non-Disclosure Agreement with Retail Specialists related to Project X, a potential development on property located at or near the intersection of I-459 and Grants Mill Road in Irondale, in substantially the form set forth hereto in Exhibit A.

ADOPTED & APPROVED: This 18th day of March, 2021.

_______________________________

David Spivey, City Council President

APPROVED:

__________________________________

James D. Stewart, Jr., Mayor

ATTESTED:

__________________________________

Frank Pennington, Acting City Clerk

CERTIFICATION

I, Frank Pennington, Acting City Clerk of the City of Irondale, Alabama, hereby certify that the above to be a true and correct copy of a resolution adopted by the City Council of the City of Irondale at its regular meeting held on March 18, 2021, as same appears in the minutes of record of said meeting.

__________________________________

Frank Pennington, Acting City Clerk

Exhibit A

NON-DISCLOSURE AGREEMENT

THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and agreed to by the CITY OF IRONDALE, ALABAMA (“City”), and RETAIL SPECIALISTS, LLC, an Alabama limited liability company (“Company”).

Preamble

Company and its affiliated entities are engaged in the potential development of the property situated at or near the intersection of I-459 and Grants Mill Road in Irondale, Jefferson County, Alabama (“Project”). In connection therewith, City will be provided certain records and information relating to the Project. Company has required the City to execute and deliver this Agreement as a condition of its provision of the Proprietary Information to the City.

In consideration of being granted the opportunity to receive the Proprietary Information, the City agrees as follows:

Agreement

Section 1. Proprietary Information.

A) The term “Proprietary Information” as used in this Agreement shall include the following provided by Company to the City pertaining to the Project: (a) all Project documents, reports and other information; (b) all information written or oral provided in response to any request or question from City; (c) all electronically stored and/or produced Project information in any form; (d) proprietary Project information including, without limiting the generality of the foregoing, business projections/forecasts and documents, marketing studies, profits, costs, pricing, discounts, business plans and records, sales statistics, and all other materials, whether written or oral, tangible or intangible with respect to the Project; and, (e) all environmental reports or studies related to the Project.

B) The term “Proprietary Information” shall not include information which: (a) is already known to the City from sources which obtained the Proprietary Information lawfully and which are not known by the City after due inquiry to be subject to any confidentiality obligations to the Company; (b) is or becomes generally available to the public other than as a result of a disclosure by the City or any Qualified Person (as defined below); (c) is required to be disclosed by law or by regulatory or judicial process; or (d) Company has agreed in writing may be disclosed by City.

Section 2. Purpose. The City agrees that its review and inspection of the Proprietary Information shall be solely to conduct due diligence, on its own behalf, for the sole purpose of determining whether to participate in the Project and for no other purposes. Proprietary Information disclosed by Company to the City shall be used by the City solely for the purpose of evaluating and entering into a mutually beneficial relationship between Company and the City (“Purpose”). In order to fulfill the Purpose, the parties expect to disclose certain Proprietary Information.

Section 3. Non-Disclosure and Use of Proprietary Information.

A) The City agrees that, except as set forth below, all Proprietary Information shall be used by the City solely for the purpose stated in Section 2 herein. The City further agrees not to disclose any of the Proprietary Information without the prior written consent of Company to any third party other than to its officials, employees, officers, agents and representatives, including, but not limited to, attorneys, accountants and financial advisors who have a duty of confidentiality to City (collectively, the “Qualified Person”). The City shall inform each Qualified Person that receives any of the Proprietary Information of the requirements of this Agreement and shall require each such Qualified Person to comply with such requirements.

B) This Agreement shall not affect City’s rights to use or disclose information (i) to elected officials, political appointees and/or employees, contractors and agents of the City or its departments, and/or (ii) elected officials, political appointees and/or employees of counties and/or economic development organizations who have a valid reason to evaluate the information and have been made aware of this Agreement.

C) Company acknowledges that the City is subject to certain other applicable laws, including without limitation, open records laws and nothing herein shall be construed to prevent the City or its employees, elected officials and/or political appointees from complying with applicable law. If City receives a subpoena or a court order, or a request from a third party for Proprietary Information under applicable open records laws, City shall as soon as practicable, unless prohibited by law, notify Company of such request in order to permit Company to assert any legal rights available to Company in order to protect the requested information. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions of this Agreement, City will furnish only that portion of the Proprietary Information which City is legally required to furnish.

D) The Company shall have any right, power or remedy available to Company under law or in equity, including, without limitation, the seeking of an injunction to prevent unauthorized use or disclosure under this Agreement and an order compelling specific protection of Proprietary Agreement subject to this Agreement. No forbearance, failure or delay in exercising any such right, power or remedy shall operate as a waiver thereof or preclude its further exercise.

Section 4. Notices. All notices, waivers, demands, requests or other communications required or permitted by this Agreement (collectively “Notices”), to be effective, shall be in writing, properly addressed, and shall be given as follows by (a) personal delivery, (b) established overnight commercial courier with delivery charges prepaid or duly charged, or (c) registered or certified mail, return receipt requested, first class postage prepaid, as follows:

If to Company: Retail Specialists, LLC

2200 Magnolia Ave. South, Suite 100

Birmingham, Alabama 35205

Attn: Stephen P. Leara, Esq., EVP | General Counsel

If to City: City of Irondale, Alabama

Attn: James D. Stewart, Jr., Mayor

101 20th Street South

Irondale, Alabama 35210

With a copy to: April B. Danielson, City Attorney

Wallace, Jordan, Ratliff & Brandt, LLC

800 Shades Creek Parkway, Suite 400

Homewood, Alabama 35209

or to any other address or addressee as any party entitled to receive notice under this Agreement shall designate, from time to time, by notice given to the other in the manner provided in this Section. Notices given by personal delivery shall be deemed to have been received upon tender to the respective natural person named above. Notices given by overnight courier shall be deemed to have been received the next business day after delivery to such overnight commercial courier. Notices given by mail shall be deemed to have been received on the second (2nd) day after deposit into the United States Postal System. All copies to the respective persons or entity(ies) listed above to receive copies shall be given in the same manner as the original notice and such giving shall be a prerequisite to the effectiveness of any Notice.

Section 5. Termination. Either party may, upon at least thirty (30) days written notice to the other party, terminate this Agreement. However, such termination shall not affect the City’s obligations with respect to Proprietary Information disclosed prior to the effective date of termination, which obligations shall terminate a period of one (1) year following the effective date of termination. The restrictions of this Agreement shall also terminate if a sale of property is consummated between the Company and the City/City entity. The City shall destroy or, at Company’s request, deliver to Company any compilations, studies, notes or other documents or records in City’s possession that contain or reflect Proprietary Information relating to the Project in the event that the Project is not pursued by the Company.

Section 6. Telecopy Signatures; Counterparts. This Agreement shall be deemed binding when executed by the City and the original or a telecopy thereof is received by Company. Telecopy signatures shall be deemed valid and binding to the same extent as the original. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document.

Section 7. Entire Agreement. This Agreement represents the entire agreement between the City and the Company relating to the treatment of Proprietary Information heretofore or hereafter reviewed or inspected by the City. This Agreement supersedes all other agreements relating to such matters which may have previously been executed by the City in favor of the Company.

Section 8. Governing Law. The execution, interpretation, and performance of this Agreement shall in all respects be controlled and governed by the laws of the State of Alabama. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the Jefferson County Circuit Court, Birmingham Division. Each party consents to the sole and proper jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.

IN WITNESS WHEREOF, this AGREEMENT has been executed by duly authorized representatives of the parties on the dates written below.

RETAIL SPECIALISTS, LLC CITY OF IRONDALE, ALABAMA

By: By:

Typed Name: Typed Name: James D. Stewart, Jr.

Title: Title: Mayor

Date:____________________________________ Date:_____________________________

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