19-640�!Mlc
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR
DESIGNEE, TO EXECUTE A CONFIDENTIALITY AND NON -DISCLOSURE AGREEMENT
BETWEEN THE CITY AND HELENA WIND, LLC., AND A CONFIDENTIALITY AND
NON -DISCLOSURE AGREEMENT BETWEEN THE CITY AND ONPEAK POWER, LLC;
PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, Helena Wind, LLC., ("Helena") is Delaware limited liability company with
offices in Chicago, Illinois;
WHEREAS, Onpeak Power, LLC., ("Onpeak") is Delaware limited liability company with
offices in Austin, Texas;
1191111=4=0 WIN I IM fA KFAU If I M I SHIN W97% 10 11 OWN0910A 1
WHEREAS, Helena and Onpeak are responders to a City request for proposals
for the purchase of electric power and capacity generated from renewable resources;
WHEREAS, DME desires to interact with Helena and Onpeak regarding the RFP issued
by the City as a potential supplier of renewable electric power;
WHEREAS, Helena and Onpeak require that DME execute a confidentiality agreement
prior to sharing and discussing detailed data and information to ensure that any information shared
will be kept as confidential;
WHEREAS, the City Council finds it is in the public interest for the City Manager, or his
designee, to execute the attached Confidentiality and Non -Disclosure Agreements after approval
of the same by the City Attorney, or his designee. NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this Ordinance are
incorporated herein by reference.
SECTION 1 The City Manager, or his designee, is authorized to execute the
Confidentiality and Non -Disclosure Agreement with Helena, (attached as Exhibit "A" and
incorporated herein for all purposes) and the Confidentiality and Non -Disclosure Agreement with
Onpeak, (attached as Exhibit "B" and incorporated herein for all purposes) after the same have
been approved by the City Attorney, without further authority, guidance, or direction from the City
Council- and is further authorized to carrivp out the ... ....... obli, ations and resitonsibilities of
the City under the agreements.
.SFC'JjON 3. If �i.my 1..)aragraph, sciutenee, claUSe., plinise i',)r �%Iord in tlis
ordnanc(_,, on- app licaiion. thereol'to any ircLiinslances is hc�d im�al'd by ancoin
nto . f' persoi� or c r conipeter�[,Wrisd�cfloii, SUch holding Shall �wt a[f , ect the validit,y of 01C ren1a611rq.1 portiollis o'tfiis
ordinance. atid thaaa City CMAICil 01'dW City oil' I)cnton, Texas, hereby deepares it a,�!mdd �iavc
enacted such remaining portions despite any such invalidity.
SECTION 4. This Ordinance shall become effective immediately upon ils passage and
approval.
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Chris Watts, Mayor:
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2:
Don Duff, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
Aye Nay
V/
Abstain Absent
PASSED AND APPROVED this the day of Ap- -i1, 201
,h
-----w ......: ....
"111'Is wATTS, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
BY.
u
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY a. --
................ Z.._._
CONFIDENTIALITY AND
J AT lei %Ui%UF1
'U'UN 01 IIIM,411111 111IJUMVIIJ UL III A. rai(I j-PIT., STITE 51T, CflTUffgUYj7b11,b
and the City of Denton, a Texas home -rule municipal corporation with its principal office at 2
E. McKinney St. Denton, Texas 76201 ("DentorII referred to collectively as "Partiesa
individually as "Party."
WHEREAS, Denton owns and operates an electric utility which operates under the tra.
name of Denton Municipal Electric ("DME") and, for purposes of this Agreement, Denton a
DME are one and the same; and
ITAEREAS, the Parties desire to exchange certain proprietary or confidential information
for the purpose of discussing energy supply arrangements for electric power generated by
renewable generation facilities within the Electric Reliability Council of Texas ("ERCOT") (the
"Proposed Transaction"); and
WHEREAS, the Parties are willing to provide such information for such purpose in
,-=ordance with the terms hereof;
[Moog_III "I.
a. "Denton" shall include any of Denton's subsidiaries or affiliates.
b. "Confidential Information" shall mean all written, recorded, electronic or oral
. ................. 6��o 0 0 �.......... information or data (including without limitation research, developmental,
engineering, manufacturing, technical, marketing, sales, financial, operating,
performance, cost, business and process information or data, know-how, and
computer programming and other software 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 Party (a "Receiving Party") in the course of the
exchange of such information or data between the Parties.
d. Person" shall be broadly interpreted to include, without limitation, any
corporation, company, partnership, other entity or individual.
e. shall mean as to each Party, its directors, officers, employees,
agents and advisors (including, without limitation, financial advisors, potential
equity investors, attorneys and accountants).
r Ctwllll(� $I iaht "Ind Noii-Usc. In consideration of each Party's providing Confidenti-aT
Information, the Parties agree as follows:
ExNbit A
a. The Receiving Party shall hold confidential and not disclose to any Person, without
the prior written consent of the Disclosing Party, all Confidential Information
provided to it by the Disclosing Party and any information about the Proposed
Transaction, or the 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 available
to the Receiving Party or its Representatives; provided, however, that the Receiving
Party may disclose such Confidential Information to its Representatives who are
actively and directly participating in its evaluation of the Proposed Transaction or
who otherwise need to know the Confidential Information for the purpose of
evaluating the Proposed Transaction;
b. Each Party shall cause all its Representatives to observe the terms of this Agreement
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 thereof), within 30 days of receipt of a written request therefore,
excepting (subject to all restrictions on disclosure of this Agreement) such
Confidential Information that exists only as part of regularly generated electronic
backup data, destruction of which is not reasonably practicable.
d. In addition 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 Parties.
3, J,' ��11!ions to dirt Cosilit'Llitiou ,usd Non-usc Obhgqljons. The obligations imposed by
AK - - .. .......... ........... W ft " - - - - -.1. 1 1, --1--... ---
Section 2 hereof shall not apply, or shall cease to apply, to any Confidential Information if
or when, but only to the extent that, such Confidential Information:
a. was known to the Receiving Party prior to the receipt of the Confidential
Information; or
b. was, or becomes through no breach of the Receiving Party's obligations hereunder,
known to the public; or
C. becomes known to the Receiving Party from sources other than the Disclosing Party
under circumstances not involving any breach of any confidentiality obligation; or
d. is independently developed by,the Receiving Party, as evidenced by the written
records thereof.
It shall not be a breach of the confidentiality obligations hereof for the Receiving Party to
disclose Confidential Information where, but only to the extent that, such disclosure is
required by applicable law or regulation, provided in such case the Receiving Party shall
(i) give the earliest notice possible to the Disclosing Party that such disclosure is or may
be required and (ii) cooperate in protecting such confidential or proprietary nature of the
Confidential Information which must so be disclosed.
Exhibit A
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 Government
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 Helena has
marked or identified as being confidential, trade secret, commercial, financial or
proprietary information, Denton will respond to the request in accordance with the
procedures set forth in Section 552.305 of the Act. Specifically, Denton will notify Helena
of its receipt of the request and request an attorney general decision identifying the
exception(s) to disclosure believed to apply. The Parties acknowledge that TPIA requires
a brief to be submitted to the attorney general explain why the claimed exceptions apply to
the information in issue. Denton shall not be obligated to submit the brief supporting those
claimed exceptions. Helena shall be solely responsible for submitting the brief and the
documents in issue to the attorney general.
4. No I os l,lier gN �qtcw�� k� N Jeretyider. 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 agreement or
any obligations owed to the other Party hereunder. Each Party hereto reserves the right, in
its sole discretion, to decline and make, to retract or to reject at any time any proposal which
has not yet become legally binding by execution of a written agreement between the Parties
with respect thereto or with respect to any further agreements or business arrangements with
the other Party hereto, its parents, subsidiaries or affiliates and to terminate all further
discussions and negotiations.
Vic)Agjjrq crj lmons agd Wwtr .ies/ No,mj jcense 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 or 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 license, express or implied, in or to
any Confidential Information disclosed to the Receiving Party, including without limitation
any patent, trademark and/or copyright.
6. i t_����at� t�� �7,y...t ntu� �i art, of �, bli&.it c n"'. Unless sooner terminated by mutual written
Agreement of the Parties hereto, this Agreement and the obligations hereunder shall
terminate two (2) years from the date hereof.
7< l�ritire Agm eN��ot. This Agreement represents the entire understanding and agreement of
the Parties and supersedes all prior communications, agreements and understandings
between the Parties relating to the subject matter hereof. Parol or extrinsic evidence shall
not be used to vary or contradict the express terms of this Agreement, and recourse shall
F':;xNill A
not be had to alleged prior dealings or course of performance to explain or supplement the
express terms of this Agreement.
8. mw _"'mlt�ttII�toni_S p��as s. This Agreement
, wtw_
Ire-
may not be modified, amended or waived except by a written instrument duly executed by
both Parties. No failure or delay by either Party 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 Party without the prior written
consent of the other and shall be binding on, and inure to the benefit of, the respective
successors of the 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 force
and effect as an original signature.
9. t:�wwvew rw�� I'm This Agreement 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 courts located in Denton County, Texas or federal
courts situated in the Eastern District of Texas, shall have exclusive jurisdiction to resolve
any disputes with respect to this Agreement or the Confidential Information with each Party
irrevocably consenting to the jurisdiction thereof for any actions, suits or proceedings
arising out of or relating to this Agreement or the Confidential Information, and each Party
irrevocably waives its rights to jury trials with respect thereto. In the event of any litigation
hereunder, the prevailing Party shall be entitled to costs and reasonable attorney's fees.
10. I' , ;�,.t�edies. Each Party, in regards to its confidentiality obligations herein, acknowledges
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
breach 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]
ExNbit
By its sole aini ' Lincoln Clean Energy, LLC
By: . . . . . .........
Name: Joseph Condo
. ........... . . . ....... ...
Name:
Title: t wq ye
nwcr"IAS . .... 1 0 FORM:
CITY ATTORNEY
CITY OF DENTON, TE AS
ATTEST:
CITY SWRETARY
CITY OF DI NI'ON'T
BY:
�
11�: x
I A
CONFIDENTIALITY
This Confidentiality andi Non -Disclosure Agreenient ("Agreeivient") is entered into as of
2019i, by and between OnPeak Power, LLC, a Iiinited liability compan.y, organized
tj he laws of'Delaware and located at 2028 F!', Ben WhiteBlvd., STE 240-88i33, Austin, TX
78741 ("OnPeak"), and the City of Denton, a Texas home -rule municipal corporation with its
principal office at 215 E. McKinney St. Denton, Texas 76201 ("Denton"), referred to collectively
as ' 1 individually as '
WHEREAS, Denton owns and operates an electric utility which operates under the trade
name of Denton Municipal Electric ("DME") and, for purposes of this Agreement, Denton and
DME are one ! and
WHEREAS, the Parties desire to exchange certain proprietary or confidential information
for the purpose of discussing energy supply arrangements for electric power generated by
renewable generation Reliability Council1 ("ERCOT")
"Proposed Transaction"); and
WHEREAS, the Partieswillingto provide information 1 ! purpose
accordance with the terms hereof;
1' 1
engineering,b. "Confidential lnfbrmation�' shall mean all written, recorded, electronic or oral
information or data (including without limitation research, developmental,
manufacturing, technical, marketing, sales, financial, operating,
performance, cost, business and process information or data, know-how, and
computer programming ! other software1 softwaretechniques)
used)(whether such confidentiality or proprietary status is indicated orally or, whether or
not the specific words "confidential" or "proprietary" are b one Party
"Disclosing ' 1 the otherParty "Receiving r courseof
exchangeof such information or data between the Parties.
d. "Person" shall be broadly interpreted to include, without limitation, any
corporation, company, partnership, other entity or individual.
e. shall mean as to each Party, its directors, officers, employees,
agents and advisors (including, without limitation, financial advisors, potential
equity investors, attorneys and accountants).
2. Coiill'iticiiititilily,,,ii)A,,,N��)t,li.l,,Jse. In consideration of each Party's providing Confidential
information, Partiesagree as follows:
EIlifbit
a. The Receiving Party shall hold conMential and not disclose to any Person, without
the prior written consent of the
Party, all Confidential Inforniation
„d'1 !,it by theDisclosingParty:!IMDisclosing
I,i: information aboutIi' Proposed
Transaction, i, or the terms or conditions or any other facts relating,I ' .i , including,
withoutI the fact that discussions g place with respect thereto or
the status thercot or I Confidential 'i 1 hasbeen made available
o the Receiving g Party or f i provided, howevcr,Receiving
Party may disclose such Confidential Inffiffnation to its Representatives who are
actively and directly participating in its evaluation of the Proposed Transaction 4
who otherwise need to know the Confidential Information for the purpose of
evaluating e Proposed Transaction;
Ia, Each Party shall causeRepresentatives 1 observe Ae terms of i '!
and i i, : be responsible for any breach of i, . termsof 1 by or its
Representatives; anI
G. h, Receiving Partyor destroy all Confidentiali (including
all copies i Ii 30 days of p,.. of i therefore,
excepfing (subject .i all i ii in disclosure of this Agreement) IiConfidential Information that exists only as part of regularly generated electronic
backup data, destruction of which is not reasonably practicable.
d. In addition to the foregoing, each Party will not use the Confidential Informatioi
(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 Parties.
3. 6N , . �gR5s ,t � :f �s� g.t tt ,k c�. 9 t� m Us . )ml�.�'u ��4ti,(����. The obligations imposed by
Section 2 hereof shall t apply, or shall cease to apply, to any Confidential Information i
or when, but only to the extent that, such Con-ridential Information:
a. was known to the Receiving Party prior to the receipt of the Confidential
Information;or
b. was, or becomes through no breach of the Receiving Party's obligations bereunder,
known o the public; or
C. becomes i to the Receiving Party from sources other I,I; the DisclosingP
under circumstances not involving any breach of any confidentiality obligation; or
L is independentlydeveloped I the
Receiving
.. „iu, Party, i . i, by ii
recordsI o:. .
Or,M MUMVPVT I . - !1f a i .,.1 4 `fIt Ali
i comply with the Texas PublicInformation (Chapterof the Texas Government
Code) responding torecordsmade f IL" Pursuant to the
requirtwientsof f ' f i : requestor inBormation which / 1 'a has marked or identified as being confidential,trade i f 11 or
proprietary information, Denton will respond to the request in accordance with the
Ills
of its receiptof the requestIf request attorney 1 decision 1:' 1 �g the
exception(s)
ti o disclosure `, believed to apply. The
Parties
i acknowledge that
TPIA
requires
51 f 4 i` s Y1,WWt t ii Ae;, tjuity "' (: ` fi: f 1`fi If :f+1 ly i±
the information in issue. Denton 1anot 1' obligated to submit
the briefffi '." those
claimed exceptions.OnPeak shallbe solelyfor submittingthe brief and the
documentsi'the attorneygeneraL
1 joint venture or partnership
finferred F this
Agreement, and 1' Parties! shall be independent entities. NeitherPartyit
parent 11 1: r or :thereof,shallbe under any obligationto enter into any further
agrcements 1 the other hereto or parents,1'if or of 11
nature whatsoever
i of g Parties shall
be ftee at all times to
hold negotiations or f 4 agreements with any other persons 11. '1(including
with respect to projects under discussion by the Parties hereto) in addition to or in lieu of
' discussions hereunderand any such activities 5ll not be . breachof this agreement or
f�` obligations owed other Party ! hereunder.fi 1 theright,in
its ole discretion,fdecline ilflato retract or to reject at anyme any proposal which
has becomebinding i;:::execution ofa writtenagreementbetween theParties
respectwith !' 4 or I respect to any agreements or business n h
the other Partyhereto, its parents, ! ! or i and toterminate
discussions I f....... negotiations.
Parties make no representation or
warranties,f(" or implied, of any If to the other with respect to the Confidential
Information, without I i respect i the accuracy or completeness
thereof.Any n'. f or warranties shall 1"'.made thereby, if at all,only f definitive
written agreements that may be entered into hereafter. Nothing contained in this Agreement
shall be ;# 1 1 as granting�iconferring any f' 1license, M 1 1 • f II i it
any ConfidentialInformation r disclosed i 14. Receiving Inincluding without limitation
any patent,trademark 1 .'i 1
. Unless sIff`i terntinitted by n
of Parties hereto, this Agreement5/1.: the obligations
terminatetwo from date hereof.
f'. ±r` ,,.1 f 1 f ti f`• i! "' f 1: M tl 1 il, 1. .. f �
i� !" �! f �: 1... f 1 1 1 •" 1 .. I I f � � •,. 11 I! ti. f �. `f:
khW't I .
not be had to alleged prior dealings or course of performance to explain or supplement the
express terms of this Agreement.
8, AnWaiygM,.�Nj len �( ,oun C p sj?Lt�.�L gp� ;This Agreement
may not be modified, amended or waived except by a written instrument duly executed by
both Parties. No failure or delay by either Party 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 fi3rther exercise thereof or the exercise of any right; power or privilege
hereunder. This Agreement may not be assigned by either Party without the prior written
consent of the other and shall be binding on, and inure to the benefit of, the respective
successors of the 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 force
and effect as an original signature.
9. Ls'This Agreement 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 courts located in Denton County, Texas or federal
courts situated in the Eastern District of Texas, shall have exclusive jurisdiction to resolve
any disputes with respect to this Agreement or the Confidential Information with each Party
irrevocably consenting to the jurisdiction thereof for any actions, suits or proceedings
arising out of or relating to this Agreement or the Confidential Information, and each Party
irrevocably waives its rights to jury trials with respect thereto. In. the event of any litigation
hereunder, the prevailing Party shall be entitled to costs and reasonable attorney's fees.
M R Each Party, in regards to its confidentiality obligations herein, acknowledges
M
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
breach 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.
Exhibft
I I I I- � . 4
p 'o"ligm iswvo AWAII
IF 7M F74 I I PAT) v UP it; lols
ONPEAK POWER, LLC
By:
Nwne- IFZ dA . �, C—, Z
Title:
CITY OF DENTON
Name: 'ji le Yv--
Title. iL4 L/
1 0 FOMA'
CITY ATTORNEY
CITY OF DENTOKI,EXAS
BY:
ATTEST:
CITY SECRETARY
CITY OF P,1YN1"ON, T!��As
BY:,