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18-653� � � � . �.,.... � � � � t ,, : .. � �...... � '�.. � � �� ..,. � � ♦... R".. , � �.... 1 �� ,' . � � � �� R �... � � ,'. ! ! � � � ��.. � R� � � 4 � � � ► R � �� .. � ��.� WHEREAS, NEW BRALTNFELS UTILTIES ("NBU"} is a municipally owned utility awned by the City of New Braunfels, Texas; ' � . � �.' • •• . ♦ . • w�- . - ��,- . - �-�� ,��- . ��- • !- �� •. � � ' �� .� `� � � - �� - �� r • � � . ' '' � w - • . .. � . . �� . • .�. . -r ♦ � r . � � - • t� . � �� . • �� . � � � •. •. . . •�� . • rt � , ��- u � � � •' !` � R. ` �', � � - . •• r - � . � � . ' + � . �� • � . * '��' ' ,; • . # ', � ' ' ! � " � . � � • `� � '� ! ' ��, , ^ � ,, ' • ' '. � � �� ` � '�� + "� � � �� , ' �. �'� ' s ' r ',.. • � ��'�, � � • i , � . R �� . � . ., ! , + .., , , M ! .., , * . � •` l�' �� !', � ` �'� � ♦ '�� # •` � # • � � •',`1 •f *• � � � � •, . �, � . . # . • �-' � �� '• ♦, !` �� ' � r� •�i � �, � � � � * , �, - • �, ' � � ► . . . � . . .. � � ,,. � � '�. � � �: � R... .� � . SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. - . . � �- -• . � -r � - _ . . # �- , � • -- - ; . - - . . ' -� . � ` . � � �• , r . � � � . . - . � , •-- .�• � - � . . ,� _ y, . � + . - • • - • �i . � . - . � -r • . w . • - � r ♦ � . r - • � � �� - r - • -�� - � . _ � . �• � � • • •. +��.• �- - �- . - • . • � � �,� . - • .�• .' • - -� '• , •- • • . - - r , w � . � • � r- - • � � � , . � . - - . • � - . , � •• • + � � � - ,� �, � -� � � # -� � �, � . t -� �� . -� - � r� - , -� �, • , - - , � - r�� . + • �� - • - . � . • �� SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. � . Y � � �� PASSED AND APPROVED this the _ �� _da of �;� �� ___ m� 2018, �� .� N�� '�� (. � � �� 1, ° .ATTS��......� ° � MAYOR ATTEST: JENNIFER WALTERS, CITY 5ECRETARY o..� �� " . _ _ N �� """� . ...�.�� . ,� .. �.�� . �_ _ ____ _ . . ,��'�w: OVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY w � � �' �� ........ .. �m��,��. ..... THIS CONFIDENTIALITY AGREEMENT ("Agreement"), entered inta and made effective as of the latest date subscribed below, is between NEw UNFELS UTILITIES ("NBU"} a municipally owned utility with its principal place af business in New Braunfels, Texas and_City of Denton, Texas, a Texas home-rule municipal carporatian, acting operationally through its Denton Municipal Electric department, ("Denton") with its principal place of business at 215 E. McKinney Street, Denton, Texas 76201 with its principal place af business at 215 E. McKinney Street, Denton, Texas 76201 (collectively the "Parties"). This Agreement is to facilitate confidential discussions and pertains to data and information that may be pravided by the parties ta ane another in connectian with patential power supply opportunities and proposals between the parties and all subsequent additional information, clarifications, and options provided by the Parties (all such proposals together with any subsequent related communications are referred to as the "Proposal"}. The Parties desire to assure the confidentiality of information disclosed and exchanged by the Parties during the Proposal and to prevent its disclosure to unrelated third parties except as permitted by this Agreement, In consideration of the mutual promises contained in this Agreement and with the intent to be legally bound by its terms and conditions, the Parties agree as fallows: 1) p��:r��at��ra� �1 �"��;��f��l�r�t��a�rV @��I�� p��l��, I�,��,��ti�r�� 1��ki�7dt�,��. The Party disclosing "Confidential Informatian", as that term is defined belaw, ("Disclosing Party") shall allow access to or may disclose to the ather Party ("Receiving Party"}, either orally, in writing, or through electronic means certain information that the Disclosing Party believes is Confidential Informatian. "Confidential Information" as used in this Agreement shall mean the information designated as Confidential by the Disclasing Party that is disclosed ar transmitted to the Receiving Party or any of its Representatives as deiined in Section 2(a) below, pursuant to this Agreement and shall include, but not be limited ta, know-how, inventians, techniques, processes, algorithms, software programs, source code, schematics, designs, cantracts, customer lists, financial information, sales and marketing plans, future generation development plans, energy proiiles and pricing and business information. Confidential Information does nat include and this obligation to maintain confidentiality will not apply to the extent that the Receiving Party can demonstrate that: a) the designated Confidential Information of the Disclosing Party is, at the time of disclosure, part of the public domain; b) the designated Canfidential Information of the Disclasing Party became part of the public domain, by publication or otherwise, except by breach of the provisions of this Agreement; c) the designated Canfidential Information of the Disclosing Party can be established by electronic ar written evidence ta have been in the possession of the Receiving Party at the time of disclosure; NI3U-Standard Canfidentiality Agreement 03.23.17 Page 1 of 5 d) the designated Confidential Infarmatian of the Disclosing Party is received by the Receiving Party fram a third Party without similar restrictions of confidentiality including any restrictions pursuant to a separate confidentiality agreement and without breach of this Agreement; e) the designated Confidential Infarmation was independently developed by it or for it without use ar reference ta Confidential Infarmatian and that was not obtained, in whole or in part, from Disclosing Partys or � the designated Confidential Information of the Disclosing Party is required to be disclased by a gavernment agency to further the objectives of this Agreement, or by a proper court of competent jurisdictian; provided, however, that the Receiving Party will use commercially reasonable effarts to minimize the disclosure of such infarmation and will consult with and assist ihe Disclosing Party in obtaining a protective order priar to such disclosure. 2) �`w.��c��.��.�arfli! ��„`��8�� tJ�c�....��1'�w"c��8ici�r�►�i��....�a��c�r��atian. a) The Parties agree to keep confidential all Canfidential Information and shall not, withaut the other Party's priar written cansent, or as atherwise provided for in this Agreement, disclase ta any third party, firm, corporation ar entity such Confidential Informaiion. The Receiving Party shall limit the disclosure of the Canfidential Information to only those affiliates of the Party and those members, partners, officers, emplayees, financing parties, representatives, advisors and agents (including attarneys, accountants, bankers and consultants} of the Receiving Party, or its affiliates (callectively the "Representatives"}, who are reasonably necessary to evaluate and camplete the Praposal. Neither Party shall make any other use, in whole or in part, of any such Confidential Information withaut the prior written consent of the other. Written consent far disclosure af Confidential Information under this Section shall not be required if the Disclosing Party is required to disclose such Confidential Infarmation pursuani ta Section 4; pravided, however, ihe Disclosing Party must camply with the requirements of Sectian 4. b) Receiving Party agrees during the term of this Agreement to take all steps reasonably necessary ta hald in trust the Canfidential Information. Receiving Party agrees ta use the Confidential Information solely to perfarm the Proposal hereunder. 3) �'�.��;cz�� r�� C:;��v��a ��N�t l��f�°ix� ��y��. Nothing in this Agreement is intended to or shall grant any rights under any patent, copyright, trademark, trade secret or other intellectual praperty right of Disclosing Party, nar shall this Agreement grant Receiving Party any rights in the Disclosing Party's Confidential Infarmation, except the limited right to review such Confidential Informatian in connection with any Proposal. Further, Receiving Party agrees not to reverse engineer, attempt to reverse engineer, decampile or disassemble any computer saftware pragrams or devices supplied by the other party. 4) l�c�e��ir �c] 1;��1��,��rr•c;. In the event that any Party or its representatives is requested or required by oral questions, interrogatories, requests far information or dacuments, subpoena, civil investigation, demand, regulatory proceedings or ather applicable laws ar regulations, court orders, or similar process to disclose any Confidential Infarmation received pursuant ta this Agreement, it is agreed that such Party (i} will pravide to the other Party immediate natice of such request(s} and (ii) will use reasonable efforts to resist disclosure, until an appropriate protective order may 6e saught and/or a waiver af NBU-Standard ConfidentialityAgreement_03.23.17 Page 2 of 5 compliance with the provisians of this Agreement is granted or (iii) will cooperate in protecting the confidential or praprietary nature of the Confidential Informatian that has been requested. If, in the absence of a pratective order or the receipt af a waiver hereunder, the Parties or their representatives are nonetheless, in the opinion of their respective counsel, legally required to disclase Confidential Informatian received pursuant to this Agreement then, in such event any Party may disclose such information without liability hereunder, pravided that the other Party has been given an opportunity to review the text of such disclosure before it is made if that Party is lawfully permitted to do so. 5) I��,�i��-i� ��i�"��alia�•it��a��a��. a) Either Party may elect at any time ta terminate further access to the Confidential Information. The Parties further agree ta return or destroy any and all Canfidential Informatian upan written request fram the Disclasing Party and ta certify in writing to the Disclosing Party that all requested information has been returned or destrayed. Hawever, the Receiving Party shall be permitted to keep one archived capy of the Confidential Information for legal or audit proposes only, provided it gives written notification af the retained copy and such information is maintained in accordance with the law andlor the terms of this Agreement. b) Confidential Information contained in drafts, notes, studies and ather documents prepared by ar for Receiving Party, ar its Representatives, shall be retained by the Receiving Party according to the terms of this Agreement or destroyed with written notice ta the other Party. c) The Disclosing Party may not request the Receiving Party to return ar destray Canfidential Informatian pursuant to this Section solely to circumvent required disclasure under Section 4 of this Agreement. 6) �r�c�rr��C c�r ��a1i,�,��t��a��;�. The obligations and commitments established by this Agreement shall remain in full farce and effect for two (2) years from the date and year the Propasal is completed, or until such time as the Parties have entered inta a written agreement providing otherwise. 7) C��rl.��a�r�r��c��x�. a) The Parties each accept the representations af ihe other Party that the Canfidential Information of the ather Party is of a special, unique, unusual, extraardinary, and intellectual character. The Parties agree that the breach of the provisions of this Agreement by the Receiving Party or its Representatives will cause the Disclosing Party irreparable damage far which recovery of money damages wauld be inadequate. The Disclosing Party will, therefore, be entitled to obtain timely injunctive relief to protect the Disclosing Party's rights under this Agreement in addition to all remedies available at law. b) The remedy stated above may be pursued in addition to any other remedies applicable at law or equity far breach of this Agreement. Should litigatian be instituted to enfarce any provisian hereaf, the Party that prevails will be entitled to recover all casts, including reasonable legal fees, cast of investigation, the cost of experts and the cost of settlement. c) If any pravision of this Agreement or the application of it to any person, place, or circumstance, shall be held by a caurt of competent jurisdiction to be invalid, unenfarceable, or void, the remainder of the Agreement and such provisians as applied ta other persons, places, and circumstances shall remain in full force and effect. NI3U-Standard ConfidentialityAgreement_03.23.17 Page 3 of 5 � • • , . � _! � !, . . " #; ' . • - .. . � •• �# • .• � ' � • - � '. M ' �, r • � . � '� #:� � w ! #�� • '' ��' �' �� ' .� . '� �� " ��" �� . #� � � ! ", " '• � ' . ! . . ' * � " = - "• ♦, �' . ♦ ��. � � � � � � . � . � � - ' � ♦ � ' � ' ' � � �,, # � �: '� 1� � F:�'. ! - . 1��, �. '�� ' � ' # � • "� ♦ ` . � ' !, • ": # �' � . � � � ' � � � l ' • ' � ' • � . . t , $} �J�,� C�al��c'� I a�:��, Nothing in this Agreement will be construed as granting any rights to Receiving Party, by license or otherwise, to any of Disclosing Party's Confidential Information, except as specifically stated in this Agreement or as otherwise agreed in writing. 9) �'t� �7��1� d��'� lit�i� ta�•....D.�a�� .V�,��,��a��. The Parties understand and agree that unless and until a definitive agreement has been executed and delivered, no contract or agreement providing for a transaction between the Parties shall be deemed to exist among the Parties, and no Party will be under any legal obligation of any kind whatsoever with respect to such transactian by virtue of this or any written or oral expressian, except, in the case af this Agreement, for the matters specifically agreed to in it. This Agreement neither obligates a Party to deal exclusively with the other Party nor prevents a Party or any af its affiliates from competing with the ather Party or any of its affiliates. 10) l m��r�1<ri��a�a„ �+i" 1�i��I�rrY�ti��. Notwithstanding any other provision contained in this Agreement, the Receiving Party's liability to the Disclosing Party in connection with this Agreement and any activities undertaken in cannection with the evaluation of the Prapasal shall be limited to direct damages and shall exclude any other liability, including without limitatian liability for special, indirect, punitive or consequential damages in cantract, tort, warranty, strict liability or otherwise. (The remainder af this page intentionally left blank) NBU-Standard ConfidentialityAgreement_03.23.17 Page 4 of 5 IN WITNESS WHEREOF, the Parties have entered into this Agreement on the latest date specified below. NEW BRAUNFELS UTILITIES, a Texas municipally �� i�� , ��" �, „�„,�,��„�� x � �� BY' _ '� �°�" � -r"-� ,�'��mm�Y�.��._'_ . /„� Name: � � �� °�,� � ,�� _n. Title: Chief pe iuT'd r 4��:� ��: Date: �— Z5 � l � NBU-Standard ConfidentialityAgreement 03.23.17 CITY OF DENTON a Texas home-rule ��r��r��;�� rr��aa��i��r �� '� �� By �N m� �, � � � �u,�., ��.�.�_.� .� __� P�.. ..�_____- -- ............ Name: Todd Hileman Title: Citv Manager _.�_-_._.__ ..��. _��... � �. ...' t zo rS' Date: � l _ ..�......m_„ .......��...._ —� ��'�"��.�'�� A`� ��;+,.�� FOR�A: � �`��' �"�"��µ.�° ��"�"�" �� "��, k' m �f��;; �� . _��. � �" � m., m �� i�� Page 5 of 5