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HomeMy WebLinkAboutSant Commerical Real Estate Advisors, LLC - Real Estate Advisor and Confidential Disclosure Agreement, August 2013WHEREAS, the City desires to retain the services of a real estate advisor to conduct due diligence and provide advice regarding the background and merits of a potential confidential economic development project involving Argos or a company(ies) affiliated therewith ("Argos") who may desire to locate a business within the City of Winter Springs ("Project"), and WHEREAS, the Company desires to exclusively assist the City in conducting due diligence and providing real estate advice . regarding the Project; and WHEREAS, the parties are interested in researching and discussing the Project with the understanding that this assignment will involve proprietary and confidential information that must be protected in accordance with Florida law and under the terms and conditions of this Agreement, and NOW, THEREFORE, in consideration of the mutual promises contained herein, which the parties hereby acknowledge and agree are legally sufficient consideration to support entering into this Agreement, the parties agree as follows: 1. Exclusive Re resentqtinn to Recruit Ar Company agrees to exclusively represent the City regarding the due diligence required and directed by the City related to the Project and recruiting Argos to locate in Winter Springs. Such due diligence may include but not be limited to, fact-finding, real estate lease and Purchase negotiations, and general real estate and economic development advice. Company agrees to exclusively represent the City regarding the Project. The term "exclusively" used herein shall mean that Company shall not represent any other person or entity related to recruiting or locating the Project outside of Winter Springs even upon termination of this Agreement unless otherwise agreed to by the City in writing. It is the intent and purpose of this paragraph to prohibit Company from competing, directly or indirectly, with the City's interest in recruiting Argos to Winter Springs by limiting Company's recruitment efforts related to locating the Project solely to Winter Springs and no other location. No monetary compensation shall be paid to the Company by the City unless such compensation is subsequently agreed to in a separate writing by the parties. However, Company is not prohibited from negotiating and receiving compensation from Argos, the landowner, and developer related to bringing the Project to Winter Springs. 2. Definition of Confidential Information. The term "Confidential Information" means any and all proprietary information, including but t not limited to materials, compounds, all information related to research, development, data, products, methods, formulations, regulatory status, commercialization, marketing, business and financial information, inventions, trade secrets and know-how which is deemed confidential and proprietary by the City and/or deemed confidential and proprietary by law including any such proprietary information received by the parties from Argos or some other third party regarding the Project. Confidential Information may be disclosed in any manner including writing, orally, electronically, or visually. Confidential Information disclosed in writing by either party to each other should be clearly marked as "Confidential" when disclosed; however information disclosed in meetings or virtual orphva physical [PoO is Confidential Information reQQrdk9BG tf whether it is marked as Confidential. The parties agree that this Agreement is not intended to restrict Use or disclosure of any portion of euCh information which: \ is now or later made known to the public through no ` dex^au«wn the party receiving the Confidential Information; (b) the receiving party can show the information m its poase8S|0O prior to the earliest i-C1oaUna by the disclosing or other party, as evidenmsd by written documents in �s files; (d is rightfully received by the r�o���nQ party from a third party having no obligation Of con�--�|�y� ( ~/ is independently developed by an enP|oyego[ageOtnfthe party without access 0D the Confidential Information as evidenced by party's written records; or (e) is disclosed by the party after receipt uf written permission from the party disclosing the wwufidenuu/ Information. Any Confidential Information disclosed hereunder not be deemed to be in the public doOo/O merely because any part of such information or is embodied in general disclosures o[because individual features or components are now or become known to the public. 3. Obligation of Confide The Company agrees not to disclose to any third parties any of the Confidential Information received in the performance of this Agreement without the prior written consent of the City. Each party agrees to use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own secret information. The parties agree to limit any disclosure of the Confidential Information to only those of its employees, agents and outside professional advisors who have a need to know and who are bound by confidentiality obligations, and to advise such persons of the party's obligations under this Agreement. The Company will promptly notify the City in writing of any misappropriation or misuse of Confidential Information by any of the Company's employees, agents or consultants, 4. Use of Confidential Information. Each party agrees to ` " use Confidential Information ' '~^'~'~'"� "' "" `�/�=muo� only for one benefit of the City regarding 1he p ngeot Company shall also maintain and keep confidential any advice given regarding the Project whether said advice is verbal or in writing. the City 5. Return of Information. All tangible materials received by Company from or on behalf of the City containing Confidential Information shall be the property of the City, and the Company shall deliver all such materials to the City upon the earlier of termination of this Agreement or the request of the City; except that the Company will be authorized to retain in confidence one (1) copy for the purpose of determining any continuing obligation on the part of the Company, Upon request by the City, all materials furnished to the Company pursuant to this Agreement shall be either: (a) returned promptly to the City; or (b) destroyed. No copies of Confidential Information may be made unless expressly permitted in writing by the City, O. If either party is requested or required � by subpoena, court order, or similar process to disclose any Confidential Information, the parties =u'== thatthe pa�yso subpoenaed or provided aoou� order ormu�ect[o such process will provide the other pa�» with prompt notice of such request(s) ep that the other part may determine whether to eaek an appropriate protective order and/or waive the subject provisions of this Agreement. party's compliance with the 7. or license under any intellectual property right claimed by any party. No License. Nothing contained herein shall be construed bo grant any immunity [a 8. Term oLQLkgjM. The term of this Agreement shall be for one (1) year from the Confidential Inforrnation contained in the above paragraphs shall survive termination of this date written above unless otherwise terminated by either party. Each party shall have the right to terminate this Agreement by providing the other party written notice at least (3) business days prior to effective date of termination. The parties' obligations concerning nondisclosure of 9. No Violation. Each party represents that its compliance with the terms of this Agreement will not violate any duty which such party may have to any other person or entity, including obligations concerning providing services to others, confidentiality of proprietary information and assignment of inventions, ideas, patents, or copyrights. 10. ReUef. Each party acknowledges that the Confidential Information constitutes and contains information of a special and unique nature and value. The Company also acknowledges that the City may suffer irreparable harm in the event the Company breaches any obligations under this Agreement and that monetary damages will be inadequate to compensate the City fully for such breach. The Company accordingly agrees tha1 in the event Cfm breach or threatened breach of any of the Company's obligations under this ` Agreement, the City will be entitled to injunctive relief to prevent such breach by the Company and by all persons acting for, oP behalf of, or with the Company. Such injunctive relief will be in addition 10 any other rights end remedies to which the City is or may be entitled at law or in equity or otherwise under th|" 4gree0eOt. 11. (a) This Agreement shall not be assigned by either party without the written conG8rt of the other except in connection with the transfer of substantially all of the assets, stock or business of such party. Subject tothe foregoing, this Aona�nme�'tshaU inure to the bene�tof and be binding upon the successors and pann|�edassigns `°ofthe parties. " (b) This Aoreementshal/be construed and interpreted in accordance with the |avo of the State of Florida, without regard to its phmjo{em concerning he application of laws O f other jurisdictions. Both parties shall use reasonable commercial efforts toresolve any dispute, controversy or claim arising in connection with this Agreement (a "Dispute"). Except with to the seeking of injunctive relief or specific performance in connection with a party's obligations protection of confidential information or i-eU----| property or disputes inxo|ving third parties, resolution of any Dispute shall first be o-'—mp^~ d through mediation befona any party commences legal action in furtherance n f this Agreement. The parties shall select a mediator by mutual agreement and the cost incurred for the mediator shall be split even|ybo1meeDthepadiea. (c) This Agreement is the entire agreement between the parties concerning the subject matter stated herein and supersedes all prior oral and written agreements between them. Nn waiver, alteration or cancellation of any of the provisions of this Aoreemoen18haUbe binding unless in writing and signed by the party to be bound Failure � ~ of this Aon*�nnen� shall not constitute � waiver of ��nn of m«ns � enforce any provision ~= Agreement unless the waiver is in writing signed by the party waiving their right to any 1| - Agreement. (d) K any portion of this - nt is held to be invalid Or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect without the invalid or provisions. (e) The parties �p��O �d warrant that the 0�C�� signing this An�*en�enthave the p0Vver0odon00D ' ' of the parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed - original, but all of vhich togethershaUcnnstitute one and the same document. M In accordance with section 110.001. Florida St~ @tutSs' Company agrees that all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, ' data processing mofmane, or other 0ate[ia|, regardless of the physical n` characteristics, D means of transmission, made or received pursuant to this Agreement or in connection with any fuDdG provided by the City pursuant U3 this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Company agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Company also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at cost that does not exceed the cost provided by Chapter 119' Florida Statutes or as otherwise provided by |mv. Company shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by |oxxand this Agneennerk. In addition, Company shall ' ' - ~^^~ " ^�^ aall neqVinanentmfor�tain|DO public records and transfer, at no cost, to the City all public records in possession of the Company upon termination of this Agreement and destroy any duplicate public records that are exempt or coDbdeDUa| and exempt from public nsoondG disclosure requirements. AUrecords stored g/eotn]nioo/|ymust be provided to the City inafom~^ that i8 compatible with the information technology systems of the Qty ' If Company does not comply a public records request, the City shall have the right to enforce the provisions of "'is PGragraph . |n the event that Company fails bocomply with the provisions i Ons of this Paragraph, and th* City is required to enforce the provisions of this Paragraph, u/ the City suffers a third party avard of attorney's fees and/or damages for violating —'' -i-m— of Chapter '19' Florida 8(atuteodueto Company's failure to comply with the provisions of this rag--,h` the City shall be entitled to collect hnnn Company prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Paragraph against Con0pany. And � epp|ioeNe' the {�Kv shall also be entitled to reimbursement of any and all attorney's haBa And, darn@Qea which the City vuan required t0 pay a third party because of Company's failure comply with the provisions of this Paragraph. This Paragraph Qh@U survive the termination ~~ of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above. Date: