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HomeMy WebLinkAbout12504RESOLUTION NO. 12504 A RESOLUTION APPROVING A NON-DISCLOSURE AGREEMENT BETWEEN THE CITY OF PUEBLO AND BLACK HILLS CORPORATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Non-Disclosure Agreement dated as of September 19, 2012 between the City of Pueblo and Black Hills Corporation relating to the provision of confidential information to the City, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. This Resolution shall become effective upon passage and approval. INTRODUCED: September 24, 2012 BY: Sandy Daff COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE:AGENDA ITEM # Q-3 September 24, 2012 DEPARTMENT: City Manager's Office James F. Munch, Interim City Manager TITLE A RESOLUTION APPROVING A NON-DISCLOSURE AGREEMENT BETWEEN THE CITY OF PUEBLO AND BLACK HILLS CORPORATION AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve the Non-Disclosure Agreement with Black Hills Corporation? RECOMMENDATION Approval of the Resolution. BACKGROUND In the process of negotiating with Black Hills Corporation for an LED Street Light Replacement Project, it is necessary and desirable that Black Hills share certain confidential information with the City. This Agreement will enable Black Hills to do so, and commits the City to hold that information confidential as provided therein. FINANCIAL IMPACT None anticipated. NON - DISCLOSURE AGREEMENT This Non - Disclosure Agreement ( "Agreement ") is effective as of the 19 day of September, 2012 ( "Effective Date "), by and between the City of Pueblo, having a place of business at 200 South Main Street, Pueblo, Colorado 81003 ( "Receiving Party "), and Black Hills Corporation, a company having a place of business at 625 Ninth Street, Rapid City, SD 57701, and its affiliates and subsidiaries ( "Black Hills "). The Receiving Party and Black Hills shall collectively be referred to as the "Parties ". RECITALS A. The Parties have expressed a desire to engage in discussions regarding LED Street Lights (the "Transaction "). B. In order to explore this relationship, it will be necessary for Black Hills to disclose certain Confidential Information (as hereinafter defined) to Receiving Party. AGREEMENT NOW THEREFORE, in consideration of the recitals, the mutual promises and covenants made herein, with the intent to be legally bound hereby, the Parties agree as follows: 1. Confidential Information. As used in this Agreement, the term "Confidential Information" includes all written information, data, correspondence or other tangible materials, and information disclosed electronically or in any other form by Black Hills to Receiving Party, provided that it is clearly labeled as "Black Hills Confidential information ". Confidential Information shall not include the following: (a) information which at the time of disclosure by Black Hills is already public or becomes available to the public through no act or omission of Receiving Party; (b) information which was in Receiving Party's possession prior to receipt from Black Hills; (c) information which is lawfully received independently from a third party who, to Receiving Party's knowledge, is free to disclose such information to Receiving Party; or (d) information which is independently developed by or on behalf of Receiving Party without use of any Confidential Information. Without Black Hills' prior written consent, Receiving Party and its directors, officers, employees, consultants, and advisors shall not disclose to any other person or entity any Confidential Information. 2. Disclosure and Use of Confidential Information. For a period of three (3) years from the Effective Date of this Agreement, Receiving Party agrees: (a) to hold in confidence and not to disclose, except as provided in section 3 hereof, to any third party the Confidential Information, employing the same degree of care to keep such Confidential Information confidential as it employs with respect to its own information of like importance but in no event Tess than reasonable care; and (b) not to use the Confidential Information for any purpose other than in connection with the Transaction. Receiving Party may disclose Confidential Information on a need to know basis to its consultants, attorneys and advisors and its employees who have a need to know such information for purposes of such evaluation, provided that such disclosures are made under confidentiality requirements consistent with those set forth in this Agreement. 3. Required Disclosure. If compelled by a requirement of a government agency, a court, or by law included, but not limited to the Colorado Open Records Act or discovery to disclose any of the Confidential Information, Receiving Party shall make reasonable efforts to resist disclosure and shall notify Black Hills in writing prior to making any disclosure in order to provide Black Hills a reasonable opportunity to either waive any objection to such disclosure or request a remedy from the appropriate authority. Receiving Party will reasonably cooperate with Black Hills in its efforts to obtain such a remedy. If Black Hills waives its objections or is unsuccessful in its request for a remedy or fails to make such a request, Receiving Party will furnish only that portion of the Confidential Information that is legally required. 4. Return of Documents. Black Hills may elect at any time to terminate further access to the Confidential Information. Receiving Party agrees to return, or destroy if so requested, any and all Confidential Information as well as any other information disclosed concerning Black Hills upon request, including all originals, copies or any other form of said material, without retaining any copy or duplicate thereof, and shall promptly destroy any and all translations, notes and other written, printed, computer based or readable or other material or information derived from the Confidential Information, without retaining any copy or duplicate thereof. Notwithstanding the foregoing, Receiving Party will not have an obligation to return or destroy Confidential Information stored in electronic backup systems, provided that such systems are not used to access such Confidential Information and the terms of this Agreement will continue to apply to such Confidential Information stored in electronic backup systems. 5. No Further Obligations. Nothing herein shall obligate Black Hills to disclose any particular information to Receiving Party. Neither of the Parties has an obligation under this Agreement to purchase any service or item from the other party. Receiving Party acknowledges that Black Hills may explore opportunities similar to the Transaction with other companies that may be competitors of Receiving Party. 6. Remedies. Receiving Party acknowledges that remedies at law may be inadequate to protect Black Hills against any actual or threatened breach of this Agreement by Receiving Party, and, without prejudice to any other rights and remedies otherwise available to Black Hills, Receiving Party agrees to the granting of injunctive relief in favor of Black Hills without proof of actual damages. 7. No Other Rights or License. Disclosure of any information under this Agreement shall not be construed as granting, directly or by implication, any license under any United States or foreign patent, patent application or copyright, or any other intellectual proprietary rights; nor shall this Agreement be construed as creating any agency or partnership relationship between the Parties. 8. Termination. This Agreement may be terminated by either party upon ten (10) days prior written notice to the other party; provided, however, that notwithstanding any termination hereof, 2 Receiving Party's obligations under this Agreement shall remain in full force and effect with respect to Confidential Information disclosed prior to such termination for three (3) years after the effective date of such termination. 9. Miscellaneous. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the Parties relating to the subject matter of this Agreement. The terms of this Agreement may not be changed except by subsequent written agreement duly executed by an authorized representative of each of the Parties. This Agreement may not be assigned by either party without the prior written consent of the other party, shall be binding upon the Parties and their successors and permitted assigns, and shall inure to the benefit of and shall be enforceable by the Parties and their successors and permitted assigns. The invalidity in whole or in any part of this Agreement does not affect the validity of the remainder of the Agreement. Notices given under this Agreement shall be in writing and delivered by first class, certified mail to each signatory at the addresses identified herein, unless changed by written notice, with a copy to Black Hills' General Counsel at 625 Ninth Street, Rapid City, SD 57701. This Agreement shall be interpreted in accordance with the laws of the state of Colorado without regard to its conflicts of laws principles. The venue for any dispute arising hereunder shall be in state or federal courts located within the state of Colorado. This Agreement may be executed by facsimile and in one or more counterparts, each of which will be deemed to be an original, and all of which when taken together, shall be deemed to constitute one and the same agreement. The undersigned have caused this Agreement to be duly effective as of the date first set forth above. BLACK HILLS CORPORATION CITY OF PUEBLO (signature) ( c atur• CN R g s roPNLR BV R K E Chris Kaufman (name printed) (name printed) V P - Cocoa,: Do Orion ,' O R' 'oNj President of City Council (title) (title) Z$ 5ePra?m1a September 24, 2012 (date) (date) ATTESTED BY: � � Ci Clerk 3