19-799AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER,
OR DESIGNEE, TO EXECUTE A CONFIDENTIALITY AND NON -DISCLOSURE
AGREEMENT BETWEEN THE CITY AND SATURN POWER CORPORATION;
PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Saturn Power Corporation ("Saturn") is a Delaware corporation with
offices in Baden, Ontario; and
WHEREAS, the City of Denton is a Texas home -rule municipal corporation that owns
and operates an electric utility which operates under the trade name of Denton Municipal
Electric ("Denton"); and
WHEREAS, the University of North Texas ("UNT"), desires to explore the possibility
of having a Saturn solar power generation facility connected to City's electric distribution
system for the purpose of supplying UNT with renewable electric power generated therefrom;
,2:04.
WHEREAS, Denton requires detailed technical information in order to study the
feasibility of connecting its system to the Saturn solar generation facility; and
WHEREAS, Saturn requires that Denton execute a confidentiality agreement prior to
sharing and discussing detailed data and information to ensure that any information shared
will be kept as confidential; and
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 Agreement after
approval of the same by the City Attorney, or his designee; NOW, THEREFORE,
SECTION 1. The findings and recitations contained in the preamble of this Ordinance
are incorporated herein by reference.
SECTION 2. The City Manager, or his designee, is authorized to execute the
Confidentiality and Non -Disclosure Agreement with Saturn, (attached as Exhibit "A" 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 carry out the rights, duties, obligations and responsibilities of the City
under the Agreement.
SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase or word
SECTION
. ........ - in this ordinance, 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.
The motion to this Ordinance was made by n1 II � L E e. and
- _.
seconded byd�� C the Ordinance was passed and approved by
the following vote iT
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:
ATTEST:
ROSA RIOS, CITY SECRETARY
G
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
.
BY:
Aye Nay Abstain Absent
...........................�
l�k
CHRIS WATTS, MAYOR
CONFIDENTIALITY AND
-DISCLOSUREA AGREEMENT
This Confidentiality and Non -Disclosure Agreement ("Agreement") by and between Saturn
Power Corporation, a corporation , organized under the laws of Delaware and located at 140
Foundry St, Baden, ON, N3A 2P7 ("Saturn"), and the City of Denton, a Texas horne-rule
municipal corporation with its principal office at 215 E. McKinney St. Denton, Texas 76201
("Denton"),, referred to collectively as "Parties" and individually as "Party," and is effective when
executed by Denton ("Effective Date").
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 the same; and
WHEREAS, the Parties desire to exchange certain proprietary or confidential information
for the purpose of discussing energy supply arrangernents for electric power generated by
renewable generation facilities within the Electric Reliability Council of Texas ("ECOT") (the
"Proposed Transaction"); and
WHEREAS, the Parties are willing to provide such information for such purpose in
accordance with the terms hereof;
1. Definitions.
"A 11 -lefitt,es" shall mean, with respect to each Party, any person or entity directly or
indirectly controlling, controlled by, or under common control with such Party.
"Confidentialarecorded, electronic or oral
informationdata op
engineering, manufacturing, marketing,+ `financial,
data,performance, cost, mechanical and electronic design drawings, specifications,
software, or engineering data, test procedures, business and process information or
! prograrnming and ! +
` iv.Uli�kw+
whetherorally or, or i` ! "proprietary"
by one Party (a "Disclosing ' Party "Receiving
course of the exchange of such information or data between
Confidential` any information that
by the Disclosing Party to the Receiving Party prior to the Effective Date.
d. "Saturn" shall include any Of Saturn's subsidiaries or +
corporation,"Person" shall be broadly interpreted to include, without limitation, any
r partnership,r
"Public An nouncernent" shall rnean the disclosure to any person or entity otherth an
Receiving Party's Representatives by any rneans including, but not limited to, a
press release; a written or oral statement made to the media, trades, publications or
any other public audience or unauthorized third party;oral statement
publishedon • ► another
distributed by facsimile, ernail, voicemail, regular mail, private delivery service,
newsletter and/or recorded message, except that it sh ' al - l i-iot - mean deliberations and
discussions conducted by governmental
mean r.:
Party, to each its directors,officers,
agents, and advisors (including, without limitation, financial advisors, potential
equity investors, attorneys, consultants and accountants).
2. nfideid Non -Use, In consideration of each Party's providing Confidential
Info mation, the Pa.......„... s
rtieagree as follows:
the prior written consent of the Party, all Confidential Information
♦ ♦ s by - Disclosing♦Disclosing,ny information about the Proposed
conditionsTransaction, ortheterms or or anv other.thereto,
MMIM
. ♦ •
Receivingthe status thereof, or the fact that Confidential Information has been made available
to the Part?p or its Re♦,resentatives,• ♦ _
Party may disclose such Confidential Information to its Representatives who are
actively ♦ directly participating♦ Proposed
Partywho otherwise need to know the Confidential Information for the purpose of
evaluating the Proposed Transaction;
Each ., Representatives +robserve Agreement
and shall be responsible for any breach of the terms of this Agreement by it or its
• ♦'
The Rece�ivmg .• Party may retain a single . � ♦. � �
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 or that the Receiving
complete ♦ of Confidential Information.
exclusive ♦ ♦ ♦ for ♦ e �rosecutiqil
or defense of any dispute arising frornw will continue
Confidentiality
as was known to the Receiving Party prior to the receipt of the Confidential
Information and this can be verified by the Disclosing Party; or
b, was, or becornes through no breach of the Receiving Party's obligations hereunder,
known to the public; or
knownC. becomes to the Receiving
under circumstances not involving any breach of any confidentiality obligation and
this can be . . Disclosing Party;or
d. is independently developed by the Receiving Party, as evidenced by the written
records thereof and this • b. verifiedby o
It shall not be a
breach of the confidentialityobligations. . Receiving Party
disclose Confidential Information where, but only to the extent that, such disclosure is
required by applicable law or regulation, provided in such case tile 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 or the
Confidential Information which must so be disclosed.
Party will disclose a' portion of
as determined by such Party's legal counsel to be furnished and will exercise commercially
reasonable efforts to obtain confidential treatment for any Confidential Information being
Notwithstanding any other provision herein, the Parties understand that Denton is required
to comply ! Information of
Code) . responding to recordsrequests underAct. Pursuantto the
requirements of TPIA, if Denton . . a request for information
marked or d .! as being confidential,•! # sfinancial
proprietaryDenton will respond
procedures set. # of - Act. Specifically, Denton will notify
of its receipt of the request and request an attorney general decision identifying the
except o disclosure believedapply. The Parties
documentsa 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. Saturn shall be solely responsible for submitting the brief and
the
N.o.11",�'i,i.t,-,I,,I)e�!..,� gjverilenls I lereundeto. No joint venture or partnership shall be inferred by this
Agreement, and . # shall b. independent entities.
parent,! s or • . thereof,abe under any obligationto enter into any further
agreements with the other signatory hereto or .n subsidiariesor
nature whatsoever as a result of this Agreement. The Parties shall be free at all times to
hold negotiations or # agreements• other persons whatsoever
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 ! # owed to the other Party
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.
expressN lrescl I t'at i oils and W2rraritics/ No License. The Parties make no representation
or implied, of • . respect •.
Information,nti
Nothingthereof. Any representations or warranties shall be made thereby, if at all, only in definiti
written agreements that may be entered into hereafter.
shall contained in this Agreeme
be . • + • • _ • • i
any patent,and/or copyright.Party is responsible or • e for a
business decisions+norinferences drawn • the other PQrtv 1cegeti•
contrary. Discussions between the Parties should not be construed as an
_
tither Party to expend ftinds in . purchase, developmentor + •
•lroducts or facilities.
6. Ternli a io n of' Obligations. Unless sooner terminated by
Agreement of Agreementobligations hereunder sh
terminate two (2) years from the date hereof, provided,however,that, Subject to Section
for . of • each •
retainedefforts to keep Confidential Information retained by Such Party confidential and to treat a
such Confidential Information
Agreement represents the entire+
betweennding and agreement of
the Parties and supersedes all prior communications, agreements and understandings
not be used to vary or contradict the express terms of this Agreement, and recourse shall
not be had to allegedcourseor ••
express terms of
•
_
ma� not - modified, amended or waived except by executedby
privilegeboth Parties. No failure or delay by either Party in exercising any right, power or
hereunder shall operate as a waiver thereof,• shall any singlepartial
• other or further exercise. • _ _ . * • • _ •4WWWi
hereunder. This Agreement may not be assigned by either Party without the prior written
consent of be • and - to the benefit of, the respective
successors of the Parties thereto. This Agreement ma�ij be si��mq6i#zUm
originals, each of which shall constitute an original document.Purposes
,Lgreement. use of a facsimile c-maiL or other electronic
and effect as an original signature.
9. (Imict-ship qnd f)ro r I UUtAA Int011eCIL1,11 Property: Confidential Information is owned
exclusively by the Disclosing Party. This Agreement shall not be construed as granting or
conferring any interests or rights, by license or otherwise, in any Confidential Information
disclosed hereunder, including under any patent, copyright, tradernark, service mark, trade
TrcTrfTC—,'Cf a 1 177-1 17V
to review such Confidential Information in connection with the Proposed Transaction and
in accordance with the terms and conditions of this Agreement.
I O, Goverrdng,tq .Qis es, 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, r rexas 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 tojury trials with respect thereto. In the event ofany litigation
hereunder, the prevailing Party shall be entitled to reasonable costs and attorney's fees.
11. (Jrien:11)rccability: In the event a court of competent jurisdiction finds any of the provision
of this Agreement to be unenforceable, such provisions may be modified by the court to the
limited extent it deems necessary to render the provision enforceable.
12. Rerviedies. 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.
11 Public Announcements: In addition to the restrictions on the disclosure of Confidential
Information contained herein, neither Party, its officers, employees, agents nor
representatives shall make any Public Announcements or other disclosures relating to its
discussions, negotiations, and/or the terms of any potential agreement or relationship with
the other Party or any of its Affiliates without the prior written approval by the other Party.
14. Notices: Any notices required by this Agreement shall be in writing and shall be given by
hand or sent by first class mail to the applicable address noted in the initial paragraph.
[SIGNATURE PAGES TO FOLLOW]
IN 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.
Saturn Power Corporation THIS AGREEMENT HAS BEEN
TIC REVIEWED AND APPROVED
a to hnan(Jal and o eirationaV
�
B Y "'1m"t iaanM� and business terms,, �"Nr „
t"
Name: Neel Bungaroo Signatur e a
Title: VP & General Counsel"" ..
CITY OF DENTON _ ... . _
Department
®ate signed: /
By: Alh
Name:
..
Title;
X�`TORN EX
uTY OF DEN
r«,
MY SECRETARY
�t
i