Confidentiality NDA Agreement - HGV, Denver, CO


CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This Confidentiality and Non-Disclosure Agreement (this “Agreement”) is entered into as of June 14, 2024, by the undersigned (“Recipient”) for the benefit of Blue West Capital LLC, a Colorado limited liability company, its affiliates and their respective successors and assigns (collectively “BWC”).

Recitals

  1. BWC has been retained by the owner of the property having an address of 4500, 4600, 4650 & 4700 West 38th Avenue, Denver, CO 80212 (the “Property”) on an exclusive basis to assist in the marketing and sale, lease or other transfer of interest in the Property. 
  2. Recipient has requested information from BWC to evaluate the sale, lease or other transfer of interest in the Property.
  3. BWC is not willing to provide Recipient with Evaluation Material (as defined in Section 1 below) to evaluate the sale, lease or other transfer of interest in the Property unless Recipient agrees to the terms and conditions set forth in this Agreement.

Agreement

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Recipient agrees as follows:

  1. Evaluation Material.  As used herein, “Evaluation Material” shall mean any information disclosed by BWC, either directly or indirectly, to Recipient, in writing or orally, which is related to the Property and is not publicly known and not generally available in the public domain.  Evaluation Material includes, without limitation, all information and data regarding tenants, third-party reports, operating expenses, service contracts, taxes, insurance, maintenance history, debt service, loans, tax returns, balance sheets and other financial information.  Recipient acknowledges and understands that some or all of the Evaluation Material may have been prepared by parties other than BWC.  Recipient further acknowledges and understands that BWC makes no representations or warranties, either express or implied, as to the completeness or accuracy of the Evaluation Material.  
  2. Limitation on Use. Recipient shall use the Evaluation Material solely for the purpose of evaluating, negotiating and implementing a sale, lease or other transfer of interest in the Property and for no other purpose whatsoever.  Recipient shall not contact, nor attempt to contact, the owner of the Property or any mortgagee, property manager, agent or employee of the owner, or any other person related to the Property, nor any of their respective officers, employees, agents or attorneys (collectively, the “Owner Parties”), without prior written consent of BWC, which consent may be granted or withheld in BWC’s sole discretion.
  3. Non-Disclosure.  Recipient shall: (a) not disclose (and shall ensure any Related Parties do not disclose) any Evaluation Material to any other person, firm, company or entity except as expressly provided for in this Agreement; (b) exercise (and ensure that any Related Parties exercise) reasonable control and precautions to prevent unauthorized access to, or use of, any Evaluation Material; and (c) not discuss the proposed sale, lease or other transfer of interest in the Property, with any parties other than with the Related Parties, BWC and Recipient’s Broker (as defined Section 8 below), if any.  Notwithstanding the foregoing, the Evaluation Material may be disclosed by Recipient to its partners, affiliates, owners, managers, investors, lenders, attorneys and other professional advisors (collectively “Related Parties”) who, in Recipient’s reasonable judgment, need access to such information for the purpose of evaluating the Property, provided that any Related Parties shall have agreed in writing prior to such disclosure to abide by the terms of this Agreement.  To the extent that Recipient is required to disclose the Evaluation Material pursuant to the requirements of any legal proceeding, Recipient shall notify BWC in writing within one business day of its knowledge of such legally required disclosure so that BWC may seek an appropriate protective order and/or waive Recipient’s compliance with this Agreement.  
  4. Return of Evaluation Material.  BWC may terminate this Agreement at any time for any reason, without fee or penalty, upon prior written notice to Recipient.  Upon any such termination, Recipient shall (and shall cause any Related Parties to): (a) immediately cease using any of the Evaluation Material that has been provided to it; (b) erase all of the Evaluation Material stored in any computer or other electronic system; (c) maintain in confidence all knowledge of the Evaluation Material gained; (d) return all physical embodiments of the Evaluation Material; and (e) deliver written certification to BWC that it has complied with the provisions of this Section 4.  Recipient shall fully cooperate with BWC to help BWC regain possession of such Evaluation Material and prevent its improper use. 
  5. Indemnity.  Recipient shall indemnify, defend and hold BWC harmless from and against any and all claims, judgments, damages, penalties, fines, costs, losses, liabilities and expenses, including without limitation attorneys’ fees and costs, in any way arising out of the breach of this Agreement by Recipient or any Related Party.  
  6. Release.  Recipient hereby releases BWC from any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, asserted against or incurred by Recipient by reason of Recipient’s reliance on or knowledge of the Evaluation Material or by any other reason.
  7. Remedies.  In the event of any breach of the terms of this Agreement, BWC shall have recourse to any and all available remedies, at law, in equity or by statute, including, without limitation, specific performance and compensatory, consequential, punitive, special and indirect damages.  Recipient agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that, in addition to the foregoing, BWC shall be entitled to injunctive or other equitable relief to remedy or prevent any breach or threatened breach, or to cease a continuing breach, of this Agreement.  Further, BWC shall be entitled to recover reasonable attorneys’ fees and court costs incurred in connection with the enforcement of any such remedy.  No failure by BWC to exercise any remedy hereunder shall constitute a waiver thereof, and no single or partial exercise of any remedy shall preclude further exercise thereof or the exercise of any other remedy hereunder.
  8. Recipient’s Broker.  Recipient hereby authorizes (“Recipient’s Broker”) to represent Recipient as its broker with respect to the sale, lease or other transfer of interest in the Property.  Recipient represents and warrants to BWC that it has not had any discussions regarding the Property with any broker or agent other than BWC and Recipient’s Broker.  Recipient agrees that it will not look to BWC or any of the Owner Parties for any real estate commissions, fees or other compensation payable to Recipient’s Broker or any other broker or agent in connection with the sale, lease or other transfer of interest in the Property other than BWC.  Recipient shall indemnify, defend and hold harmless BWC and the Owner Parties from and against any and all costs, claims, losses, liabilities or expenses, including attorney’s fees, arising from or in any way connected with any fee, commission or other compensation payable to Recipient’s Broker, or any other parties claiming to have had dealings with Recipient, in connection with the proposed sale, lease or other transfer of interest in the Property other than BWC.
  9. Miscellaneous
    1. This Agreement shall not be assignable or otherwise transferable by Recipient.
    2. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to its conflict laws principles.  
    3. In the event that a term (or a portion thereof) is deemed to be held invalid, illegal or unenforceable, the remaining terms shall be deemed to be in full force and effect.
    4. Recipient represents and warrants to BWC that (i) it is authorized to execute this Agreement on behalf of its company, if any, and (ii) it is acting as a principal and is not seeking a real estate commission, fee or other compensation from the Owner Parties or BWC.
    5. Recipient waives its respective rights to a trial by jury of any claim or cause of action based upon or arising out of or relating to this Agreement or the transactions contemplated hereby, in any action, proceeding or other litigation of any type, whether with respect to contract claims, tort claims, or otherwise.
    6. In the event of any litigation or arbitration between Recipient and BWC relating to this Agreement (including pretrial, trial, appellate, administrative, bankruptcy or insolvency proceedings), the prevailing party shall be awarded, as part of the judgment or settlement, all reasonable attorneys’ fees, costs and expenses incurred in connection with such litigation, except as may be limited by applicable law.
    7. This Agreement does not grant any option, reservation or other right to Recipient to purchase the Property, and this Agreement does not obligate BWC to enter into any agreements or negotiations relating to the Property.
    8. This Agreement may be signed and delivered electronically (including DocuSign®), and the same electronic signature shall constitute an original signature hereof with all force and effect of law.   

This Agreement is hereby executed by Recipient as of the date first above written.

RECIPIENT:

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Company Name:

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Signed by Robert Edwards
Signed On: April 5, 2024


Signature Certificate
Document name: Confidentiality NDA Agreement - HGV, Denver, CO
lock iconUnique Document ID: 704596926740ccc511da0b6d20cce380a6fa9186
Timestamp Audit
January 24, 2024 6:54 am MDTConfidentiality NDA Agreement - HGV, Denver, CO Uploaded by Robert Edwards - robert@bluewestcapital.com IP 182.3.50.98