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HomeMy WebLinkAbout10433RESOLUTION NO. 10433 A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONFIDENTIALITY AGREEMENT WITH AQUILA, INC. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 In furtherance of the City's evaluation of the feasibility of acquiring all or part of Aquila, Inc. facilities within or without the City, the City Manager is authorized to enter into a confidentiality agreement in the name of the City with Aquila, Inc. upon such terms and conditions as the City Manager may deem appropriate and in the best interest of the City. SECTION 2 This Resolution shall become effective upon final approval and passage. INTRODUCED June 27, 2005 BY Michael Occhiato Councilperson APPROVED: PRES1DENT 9F CITY C IL ATTESTED BY: CITY CLERK UN, 30. 2005 10:46AM 90566 N0, 1745 P. 2 THU AG'REEN[ENT is entered into as of 1his * day of June, 2005, by and between Aquila, Inc., a Delaware corporation ("Company"), and City of Pueblo, Colorado, a Municipal Corporation ("City'). WBEREA$, the City has advised Company of its intent to evaluate the possible acquisition of certain assets of Company located and operated in Colorado (the "Assets") and the possibility of proposing an acquisition of the Assets, and has requested certain information relating to the Assets. NOW, THEREFORE, in consideration of Company's disclosure of information to City and the promises set forth below, the parties agree as follows: 1. Confidential Information "Confidential Information" as used in this Agreement shall mean all information disclosed to City by Company, including without limitation any business, technical, marketing, financial or other information, whether in written, electronic or oral form. Confidential Information does not include information which (i) is or becomes part of the public domain other than as a result of disclosure by City; or (if) becomes available to City on a nonconfidential basis from a source other than Company, provided that source is not bound with respect to such information by a confidentiality agreement with Company and is not otherwise prolnbited from transmitting that information by a coxitracft4 legal or other obligation. 2. No Disclosure or Use of Confidential Information City agrees that during and for a period of ftw years from and after the date hereo£ it will not (i) use the Confidential Information for purposes other than the evaluation of the feasibility of acquiring the Assets, to propose an acquisition of the Assets, or the acquisition of the Assets by the City, or (ii) disclose the Confidential Information to any ours party; provided, however, that City may furnish Confidential Information to those employees, officers, directors, agents, wnsultants, and advisors of City (collectively, the "Representatives" of such City) who need to have access to such Confidential Information in order to assist City is its evaluation of the Assets; and provided further that the restrictions of subsection (�) and (ii) shell not prohibit the City from diseIoft any summary, analysis, or document containing or based upon any portion of the Confidential Information which the City reasonably determine is requited to be created or prepared by the City or its Representatives and disclosed in connection with (a) the City's process for evaluating and seeldng approval for any proposed plan for acquisition of Assets by the City, including without limitation the Assets to be acquired and their purchase price, computation, and valuation, or (b) the purchase or condemnation of the Assets. As a condition to such disclosure, City shall inform its Representatives of the confidential nature of the information and shall be responsible for any damages caused by any action of its Representatives that would constitute a broach of this Agreement if such Representative were a party hereto. 3. Willed Disclosure In the event that City m its Representatives are required (by oral questions, interrogatories, requests for information or documents in legal prooeediags, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information, City shall (i) disclose only that portion of the Confidential Information which City's legal counsel advises is required to be disclosed, (ii) use its reasonable efforts to ensure that such Confidential Information is treated confidentially, and (iii) notify Company as far in advance as practicable of such disclosure of the items of Confidential Information to be disclosed For the avoidance of doubt, the parties agree that this provision does not permit disclosure by the City or any of its Representatives pursuant to a law that provides for a discretionary determination by the City or any of its officials to open records or release otherwise confidential information; it being further agreed that neither the City nor any official of the City shall seek KG1301503.4 SUN. 30.2005 10:46AM 9056B N0, 1745 P. 3 any order authorizing disclosure of information protected by this Agreement and City agrees not to t1ke or permit its officials to take any action in contravention of this provision. 4. 9wnership and Re:hnn All Confidential Information shall remain the property of Company and no right or license is granted to City with respect to any Confidential luformation. Upon the determination by the City not to propose an acquisition of Assets (including a determination pursuant to a public vote or for any other reason), and in any event within nine months after the date hereof unless otherwise agreed by the parties, the City agrees to (i) immediately return to Company or destroy all Confidential Information, including copies of the same, and (ii) destroy any memoranda, summaries, reports, documents or analyses created by City or any of its Representatives that contain or are based in any way on the Confidential Information; provided, however, if the City determines to propose an acquisition of Assets, the City shall be entitled to retain and use the Confidential Information for the purpose of negotiating a purchase price for the Assets to be acquired and in condemnation proceedings, if any. Upon Company's request, the fact of any such destruction shall be certified is writing to Company by an official of the City. 5. Rd ation" of Parties No right or license, express or implied, is granted to City with respect to any Confidential Information. This Agreement binds the parties only with respect to the matters expressly set forth hacin, and does not create any other obligation of any nature. 6. No warranty Company makes no representation or warranty as to the accuracy or completeness of any information provided to the City. 7. Governing Law This Agreement shall be governed by and interpreted in accordance with the laws of the state of Colorado (without regard to conflict of laws provisions). S. Remedies City agrees that should it breach or threaten to breach any provision of this Agreement, Company will suffer irreparable damages and its remedy at law will be inadequate. Therefore, if City threatens or actually breaches this Agreement, Company shall be entitled, without proof of actual damages, to equitable relief, including specific performance and injunctive relief to enforce any provision hereof and to restrain City from using or disclosing, in whole or in part, directly or indirectly, any Confidential Information is violation of this Agreement. City's liability for damages,, Iosses and e xpanses arising out of a breach of this Agreement by City or its Representatives shall not exceed 525,000.00. 9. Misoellanem . This Agreement contains the entire agreement between the Company and the City concerning the subject matter hereof; and no modification of this Agreement or waiver of any tarns hereof wn71 be binding upon. the Company or the City, unless approved in writing by both of the panties hereto. No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise rcise thereof or the exercise rcise of any right, power or privilege hereunder. If any provision of this Agr mmieint shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment will not affect, impair or invalidate the remainder of this Agreement but will be confined in its operation to the provision of this agreement directly involved in the controversy in which such judgment is rendered This Agreement may be executed in counterparts and by original or facsimile signatures, each of which will be an original, but all of which together will constitute one and the same agreement. 10. City's Authority This Agreement is being exemted and delivered by the City Manager pursuant to authority granted to him in that certain Resolution No. 10433 adopted by the City Council of the City on June 27, 2005. xC- 1301$03-4 JUN, 30. 2005 10:47AM 90566 N0, 1745 P. 4 W WITMMS WMEOF, the parties have executed this Agreement as of the date first written above. „ _ice �►.��� CUX OF PUEBLO B C /�jv ✓/ Name. D v 1 4, S Title: C S 4 M rru Ae�� YC- 130IS03-4 SUPPLEMENTAL AGREEMENT THIS SUPPLEMENTAL AGREEMENT is entered into as of June 29, 2005 between Energy & Resource Consulting Group, LLC ( "Consultant ") and City of Pueblo ("City"). WHEREAS, Consultant and City entered into a Professional Services Agreement dated as of June 14, 2005 ( "Agreement "), and WHEREAS, in order to obtain data and information from Aquila, Inc. which has been requested by Consultant, City has been required to enter into a Confidentiality Agreement with Aquila, Inc. a copy of which is attached hereto and incorporation herein ( "Confidentiality Agreement "), and WHEREAS, pursuant to section 2 of the Confidentiality Agreement, City must inform its Representatives (as therein defined) of the confidential nature of the information and shall be responsible for any damages caused by any action of its Representatives that would constitute a breach of this Agreement if such Representative were a party thereto. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Consultant agree as follows: Consultant will keep the Confidential Information (as defined in the Confidentiality Agreement) disclosed to Consultant by Aquila, Inc. or the City confidential and will not use or disclose the Confidential Information in violation of the Confidentiality Agreement. 2. Consultant will at the written request of the City Manager of City return or destroy the Confidential Information as required by section 4 of the Confidentiality Agreement. 3. Consultant will indemnify, defend and hold harmless City and its officers, agents and employees from and against all claims, losses, damages, liabilities, and expenses following operation of applicable rights of contribution claimed or asserted by Aquila, Inc. against the City arising out of Consultant's violation or breech of this Supplemental Agreement or the Confidentiality Agreement, provided, however, such indemnification and hold harmless shall not exceed the amount set forth in section 8.0 of the Confidentiality Agreement. 4. This Supplemental Agreement shall be construed and interpreted according to the laws of the State of Colorado and shall be binding upon and inure to the benefit of Consultant and City and their respective successors and assigns, provided, this Supplemental Agreement may not be assigned by Consultant without the prior written consent of City, which consent will not be unreasonable conditional or withheld. 5. In the event of any litigation arising out of this Supplemental Agreement, the Court shall award the prevailing party its costs and expenses, including, without limitation, reasonable attorney fees. ENERGY & RESOURCE CONSULTING CITY OF PUEBLO By David J. Galli ity Manager ON f Vff, , i /i // /� 1