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18-1014�� • � ;i � � � �' � ' • • � � � #' • • � • ` � • � � : � � � ' C � � ' � � ' �" � �: � '� �+' . . .. • • � ' ' ' # '' ' ! ' ` �, .►. •. � �� .� � . •.• � • �• � R .,. � � � �� R � ♦ �� • , ..:.. � ! � � R: ,,,, � • .. �� ..: �: � � � #.' ' ' #�. ��.... � � � � L. � ♦ ��' . � � � ��• 1 � ��.. � �. � � WHEREAS, Invenergy, LLC, ("Invenergy") is a Delaware limited liability company with offices in Chicago, Illinois; WHEREAS, the City of Denton ("City") is a Texas home-rule municipal corporation that owns and operates an electric utility which operates under the trade name of Denton Municipal Electric ("DME"); ' � � �-• .�� # : . .�w - �. . ,• . ,-. � �_ . , � .. _ . . . � • � - -� � -� 11 �. . _ � . . � �� . � - . _ _ � _ • � � ,� � �: � 1. ' ' . . , •. . * . _� . f • ♦�� + ' � _� � - � � � . # . . i . ' �� # '�� • � ' � ' ' � '; . •�� . � *' � '• ! + � � "��' � . ' � • �';� # " "� i . ' - � r r � � � •' • � !'s 1 ' ' ., = • ! � • ' . 1 •� i " � ., � � . ., � � . �, � � = : � � *. . � .� . � � . WHEREAS, Invenergy requires each city or municipally-owned utility participating in the New Braunfels Utilities RFP to execute a confidentiality agreement to ensure that any information shared by Invenergy will be kept as coniidential; WHEREAS, the City Council finds it is in the public interest for the City Manager, or his designee, to execute the attached Confidentiality Agreement after approval of the same by the City Attorney, or his designee. NOW, THEREFO , • • • � ! ' : #' � � � - � * � - , w • . -� . � .� � . � � • . . + ' • � • � . � _, �� . . _ � . SECTION 2. The City Manager, or his designee, is authorized to execute the Confidentiality Agreement with Invenergy LLC., (attached as Exhibit "A" and incorporated herein for all purposes) after the same has been approved by the City Attorney, without further authority, guidance, or direction from the City Council, and is further authorized to carry out the rights, duties, obligations and responsibilities of the City under the Agreement. SECTION 3. If any section, subsectior� paragraph, sentence, clause, phrase or word in thisordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. '�"h� ��li�� l�� c�^�a� �l��r� ��•��i�r�t�� r��a ��#a� ��a� _.� � �'�� "�...., and �,,t��;�atki ----� .mm _,� W �°�� ,TM�� .'� . �� m��'��a�,�..��.�.... .�........... ��. ��•�l�_��a�r.�� was ��c�� and approved by ��.._ the followin vote g �...w::.�,_.. - .��.......7 � Mayor Chris Watts: Gerard Hudspeth, District 1: Keely Briggs, District 2: Don Duff, District 3: John Ryan, District 4: Deb Armintor, At Large Place 5 Paul Meltzer, At Large Place 6: ,�.�c Nay �""�� ' .�....� �`,, PASSED AND APPROVED this ��iay of f::' � 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY � BY . ...( �,��'�,��b. _��."�..,.� ��.,�:�c��_��"�� _ � APPROVED AS TO LEGAL FORM: AARON LEAL, ITY TT R � �� -- � � �� " �� BY: � � � .rc� � � �� w �� ...�� ...�� Abstain ATTS, MAYOR Absent 2018 CONFID�NTIALITY AND NON-DISCLOSURE AGREEMENT This Confidentiality and Non-Disclosure Agreement ("Agreement") is entered into as of July �� 2018, by and batween Invenerg,y LLC, a limited liability company organized under the laws of Delaware and located at 1 S. Wacker Drive, Suite 1800, Chicago, IL 6060b ("Invenergy"), and the Ciiy of Denton, a Texas home-rule municipal corporation with its principal office at 215 E. McKinney S� Denton, Texas 76201 ("Denton")„ refened to collectively as "Parties" and individually ss "Party." WHEREAS, Denton owns and operates an electric utility which c�p��t�s under tho trade ��rrr�� f 1��w�� Muni+�i�� ric ("DME") and, for purposes of this Agreement, Denton and 1C� �� an+� �r�d the �s��; �rad � WHLREAS, the Pacties desire to exchange certain proprietary or confidential information for the purpose of discussing energy supply arrangements for electric power generated by solar facilities within the Electric Reliability Council of Texas ("ERCOT") (the "Proposed Transaction'�; and WHEREAS, the Parties are willing to provide such int�rmation for such purpose in accordanee with the terms heceof; � NOW, TI�REFORE, Invenergy and Countetparty do hereby mutually agree as follows: ,� �. . �, � w ��. a "��;,�r�v"' shall include any of Counterparry's subsidiaries or affiliates. b. �'!��1��ti��'_ �r�f,��"' shall mean all written, recorded, electronic or oral information or data (including without limitation research, developmenta(, engineering, manufacturing, technical, marketing, sales, financial, operating, par.formance, cost, business and process information or data, know-how, and computer programming and other soflware and software techniques) provided (whether such confidentiality or proprietary status is indicated orally or, whether or not the specific words "confidential" or "proprietary" are used) by one Party (a "Disclosing Party") to the other Parry (a "Receiving Party") in the course of the exchange of such information or data between the Parties. c. �� rr��a r,��' shall include any of Invenergy's subsidiaries or affiliates. d. `��+��' shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. a `��.��ut�,�iv�s" shall mean as to each Party, its directors, officers, employees, �,��n� and ��Ivi��s ��r��u�'ir�� it�� limitation, �i:n��ial advisors, potential �quit� invest�ar�, ��k��o�� N ��ura�ts). . . 2. � �;�� c� `;�c�a��. In consideration of each Party's providing Confidential Information, the Parties agree as follows: a. The Receiving Party shall hold confidential and not disclose to any Person, withuut the prior written consent of the Disclosing Party, all Confidential Information provided to it by the Disclosing Farty and any information about the Proposed Transaction, orthe terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made avai lable to the Receiving Party or its Representatives; provided� however, that the Recaiving Party may disclose such Confidential Information to its Representatives who are actively and directly participating iri its evaluation of the Proposed Transacrion or who otherwise need to know the Confidendal [nformation for the purpose of evaluating the Proposed Transaction; , b. Each Party shal! cause all its Representatives to observe the I.erms of ttus Agreemant and shall be responsible for any breach of the terms of this Agreement by it or its Representatives; and c. The Receiving Party shall return or destroy all Confidential Information (including all copies thereofl, within 30 days of receipt of a written request therefore, exceptin� (subject to all restrictions on disclosure of this Agreament) such Confidential Information that exists only as part of regularly generated elecdronic backup data, deshuction of which is not reasonably practic�ble. d. In addidon to the foregoing, each Party will not use the Confidential Information (a) in any way detrimental to the other Party's shareholders or (b) for any purpose other than in connection with the Proposed Transaction between the Paities. 3. �� " r�� n�� "" �� iC�� fi��li �t' s� . The obligations imposed by Section 2 hereof shall not apply, or shall cease to apply, to any Confidential Information if or whan, but only to the extent that, such Confidential Infornnation: a. was known to the Receiving Party prior to the receipt of the Confdential Information; or b. was, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public; or c. becomea known to the Recaiving Party from sources other than the Disolosing Party undar circumstances not involving any breach of any confidentiality obligation; or d. is independently developed by the Receiving Party, as evidanced by the wtitten records thereof. It shall not bc a breach of the confidentiality obligations hereof for the Receiving Party to disclose Confidential Information where, but only to the extent that, such disciosure is ��u� �;� ��pi�� vwr �ar a��al�,�a�r�, }��w�r�d,�� i� ��ac�� a� �„��in� ��r� ��1� �� iv� �� e��i��t n��i�� p��s�bl� t�r t�� Iis�i��r�� '�:� th�;ti;'.��a €i'ws��a�sur� a� c�� a�ay N�� r��ir�� a� �'i�} ��t� �n �r��ivr� �uch confidential or proprietary nature of the Confidential Information which must so be disclosed. 2 . �� .N .. �=,h�.3 .. . ' Notwithstanding any other provision herein, the Parties understand that Denton is required to comply with the Texas Public Information Act (Chapter 552 of the Texas Governcnent Code) ("TPIA") when responding to records requests made under the Act Pursuant to the requirements of TPiA, if Denton receives a request for information which Invenergy has marked or identiited as being confidential, trada secret, commercial, financial or proprietary information, Denton will respond to the request in accordance with the proceduros set forth in Section 552.305 of the Act. Specifically, Denton will promptly notify Invenergy of its receipt of the request and timely request an attorney general decision identifying the excepNon(s) to disclosure believed to apply. The Parties acknowledge that TPIA requires a brief to be submitted to the attorney general explaining why the claimed exceptions apply to the information in issue. Denton shall not be obligated to submit the brief supporting those claimed exceptions. Invenergy shall be solcly responsible for submitting the brief and the documents in issue to the attomey general. 4. ' ��4. � d�r. No joint venture or partnership shall be inferred by this Agreement, and the Parties hereto shall be independent entities. Neither Party nor any parent, subsidiary or affiliate thereof, shall be under any obligation to enter into any further agreements with the other signatory hereto or its parents, subsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all times to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to projects under discussion by the Parties hereto) in'addition to or in lieu of the discussions hereunder and any such activities shall not be a breach of this ��r�ment or any obligations owed to the other Party hereunder. Each Party hereto reserves the right, in ib sola discredon, to decline and make, to retract or to reject at any time any proposal which has not yat become legally binding by execution of a written agreement between the Parties with respect thereto or with respect to any further agreements ar business arrangements with the other Parly hereto, its parents, subsidiaries or affiliates end to terminate all furthar discussions and negotiations. � �r� t� �,n� �,r��a��i��d l�c� ��,��. The Parties make no representation or warranties, express or implied, of any kind to the other with respect to the Confidential Information, including without limitation with respect to the accuracy or completeness thereof. Any representations ar warranties shall be made thereby, if at all, only in definitive written agreements that may be entered into hereafter. Nothing contained in this Agreement shall be construed as granting or conferring any right or ]icense, express or implied, in or to any Confidential Information disclosed to the Receiving Party, including without limitation any patent, trademark and/or copyright. 6. r' " '� �} �" "�. Unless sooner terminated by mutual written Agraement of the Parties hereto, this Agreement and the obligations hereunder shall terminste two (2) years from the date hereof. 7. t�a�� r��at. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior co��mur�i��t�a�� r+��a��w� ��.�, �r��d�s�t��+��a� between the Parties relating to the subject m��r i��M P ��c ��c�ri�a�� x��r�� sh�l� not be used to vary or contredict the express terms of this Agreement, and recourse shall not be had to alleged prior dealings or course of performance to explain or supplement the express terms ofthis Agreement. 3 8. " +�r�s�..� �n ��, . i � I�� i� �` r��t � . This Agreement may not be modiiied, amended or waived except by a written instrument duly executed by both Parties. No failure or delay by either Parry in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement may not be assigned by either Parly without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors ofthe Parties thereto. This Agreement may be signed in two or more counterpart originals, each of which shall constitute an original document For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same farce and effect as an original signature. 9. � �,��rM��. This A�reement is made subject to and shall be construed under "' the laws of the State of Texas, without giving effect to its principles or rules regarding �� conflicts of laws, and that the state and federal courts located in Texas, shall have exclusive j jurisdicdon to resolve any disputes with respect to this Agreement or the Confidentiel Information with each Party inevocably consenting to the jurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreament or the Confidential I Information, and each Parry irrevocably waives its rights to �ury trials with respect thereto. � In the event of any litigation heraunder, the prevailing Parly shall be entided to costs and nasonable attorney's fees. � 10. ��ca��di�s. Eaeh Party, in regards to its confidentiality obligations herein, aeknowledges that the other Party would be irreparably injured by a breach of this Agreement, and the non-breaching Party, in addition to any other remedies available at law or in equity, shall be entitled to relief, including injunctive relief and specific performance, in the event of any broach of the provisions of this Agreement by the breaching Party. Any such relief shall be in addition to, and not in lieu of, money damages or any other legal or equitable remedy available to the non-breaching Party. [SIGNATURE PAGES TO FOLLOW] 4 1N WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully authorized representatives as of the date first written above. IIWENERGY LLC . ��, � By: �.. a�� . �., .�""�"�� `�9e� �� Title: Vice Presiden� ,� CITY OF 1�?��,�"Q�+� ,;, , ., � �� w � � ,� , � �p' �P B�. �d�Y�„��1,� �%� w,..,._ V r.. .;�' �� .� .��w,.�..�. Name: � � � '�' � � � 6�Q Title: , �� a a� (��.� �..�,� APPROVED AS T4 LEGAL FORM: AARON L��„ CITY ATT4RNEY � � � � �' ,� � ;. ., �r . � :��;�� ,� �� ' � �'��° � �� ., ",�� . � BOTN REVIEWED AND APPROVED �� to tinancf�� r�tional �N��igations a�w�l �ruw�� terrns. � gnature Title C��p�u��+��t Date �I��a��l� 5 � �� i� ��.. �i „�� I��u��i�