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HomeMy WebLinkAbout10016ORDINANCE NO. 10016 AN ORDINANCE APPROVING A MUTUAL NON- DISCLOSURE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND ITC BROADBAND HOLDINGS, LLC, AND AUTHORIZING THE MAYOR TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO that: SECTION 1. The Mutual Non-Disclosure Agreement (“Agreement”) between and Pueblo, a municipal corporation and ITC Broadband Holdings, LLC, attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute said Agreement for and on behalf of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement to implement the policies and procedures described herein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on September 13, 2021. Final adoption of Ordinance by City Council on September 27, 2021 . President of City Council Action by the Mayor: ☒ Approved on September 29, 2021 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST Deputy City Clerk City Clerk’s Office Item # R-8 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: September 13, 2021 TO: President Lawrence W. Atencio and Members of City Council VIA: Marisa Stoller, City Clerk FROM: Mayor Nicholas A. Gradisar SUBJECT: AN ORDINANCE APPROVING A MUTUAL NON-DISCLOSURE AGREEMENT BETWEEN THE PUEBLO, A MUNICIPAL CORPORATION, AND ITC BROADBAND HOLDINGS, LLC, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: This Ordinance approves and authorizes the Mayor to sign a mutual non-disclosure agreement with ITC Broadband Holdings, LLC. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: For the purposes of reviewing and negotiating a project proposal from ITC Broadband Holdings, LLC, (“ITC”), it is necessary that ITC share certain confidential information with the City. This Agreement will enable ITC to do so and commits the City to hold that information confidential as therein provided. FINANCIAL IMPLICATIONS: None BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: City Council could decide not to pass and approve this Ordinance in which case future discussions with respect to any project would not occur. RECOMMENDATION: Approval of the Ordinance Attachments: Proposed mutual non-disclosure agreement. MUTUAL NON-DISCLOSURE AGREEMENT Regardless of its date of execution, this Mutual Non-Disclosure Agreement (this "Agreement") shall be deemed made and entered into as of September 1, 2021 (the "Effective Date") by and between ITC Broadband Holdings, LLC, and its affiliated companies, located at 1791 O. G. Skinner Drive, West Point, Georgia 31833 ("ITC"), and Pueblo, a Colorado municipal corporation ("Company or Companies"). Company and ITC may hereinafter be referred to as the"Party"or the"Parties"where appropriate. Exhibits attached hereto, and any attachments and addenda thereto and/or hereto, are hereby incorporated herein by reference. RECITALS WHEREAS, in order to pursue discussions regarding a proposed project which will have public benefit to the citizens of City ("Project"), the Parties recognize that there is a need to disclose to each other certain confidential information and to provide for mutual agreements to protect such confidential information and restrict its use strictly to the pursuit of said Project; and WHEREAS, ITC, and Company desire to enter into this Agreement and perform their respective covenants and agreements in accordance with the terms and conditions hereof. NOW THEREFORE, in consideration of the representations, conditions and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree that the foregoing recitals are true and correct and are incorporated into this Agreement, and further agree as follows: GENERAL TERMS AND CONDITIONS 1. Term. The Agreement shall begin on the Effective Date and shall continue for a term of two (2)years. 2. Mutual Business Purpose of Disclosure. The Parties desire to receive confidential information from one another for the following reason(s): To discuss a proposed project which will have public benefit to the citizens of City. 3. Confidential Information. "Confidential Information" means all information or material of a Party or its affiliate(s), whether revealed orally, visually, or in tangible or electronic form, that is competitively sensitive material not generally known to the public that relates to the business of a Party or Party affiliate(s), or any of their respective interest holders. In addition to the foregoing, Confidential Information shall include all information in tangible form and marked "confidential" or with words of similar effect and all information identified as confidential at the time of oral disclosure. Confidential Information shall not include information which (a)was already rightfully known to the Receiving Party at the time of disclosure by Disclosing Party; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Receiving Party; (c) has been rightfully received by Receiving Party from a third party not under obligation of confidentiality to Disclosing Party and without breach of this Agreement; or (d) is independently developed by Receiving Party without reference or reliance on any confidential information of Disclosing Party. For the purposes of this Agreement, any party receiving Confidential Information hereunder is referred to as a "Receiving Party" and the party disclosing Confidential Information hereunder is referred to as the "Disclosing Party". 4. Obligations of Confidentiality. Each Party understands and agrees that it will be deemed to be in a relationship of confidence with respect to the Confidential Information disclosed to it by the other or any other Party. Each Party will maintain the other's confidential information and any internally prepared notes or documents containing or based upon the Confidential Information ("Work Product") in the strictest confidence and will not disclose such Confidential Information or Work Product to any third party or use or reproduce such Confidential Information or Work Product except as is reasonably necessary to evaluate the Business Purpose, without the prior written consent of the Disclosing Party. Each Party will keep and maintain all of any other Party's Confidential Information and Work Product in a safe and secure location. Each Party will use reasonable steps to protect any other Party's NO-B-MUTUAL NON-DISCLOSURE AGREEMENT Confidential Information and Work Product from unauthorized or inadvertent disclosure. A Party may disclose another Party's Confidential Information to its affiliates, officers, directors, partners, employees, accountants, lawyers, advisors and other representatives (collectively "Related Persons"), but only to the extent necessary to pursue the Business Purpose. Each Party will instruct all such Related Persons to carry out their respective obligations under this Agreement not to disclose such Confidential Information to third parties and not to use it for any purpose (other than to pursue the Business Purpose), without the prior written consent of the Disclosing Party. Each Party shall be responsible for any acts or omissions of its Related Persons that result in a breach of this Agreement. 5. No Warranties. Each Party understands and agrees that (a) the Disclosing Party has not made and is not making any representations or warranties, express or implied, as to the accuracy, completeness or fitness for any particular purpose of any Confidential Information of such Disclosing Party, and (b) a Disclosing Party shall not have any liability to a Receiving Party relating to or resulting from Receiving Party's use of any Confidential Information of such Disclosing Party or any inaccuracies or errors therein or omissions therefrom. 6. Return of Confidential Information. At any time upon the request of Disclosing Party, Receiving Party shall return all of Disclosing Party's Confidential Information (and all copies and derivative works thereof), and/or shall delete or erase such Confidential Information and copies and derivative works thereof from the computer systems in the possession or control of the Receiving Party or any third party acquiring the Confidential Information from such Receiving party, provided, however, that to the extent the Receiving Party's or third party's computer back-up or archiving procedures create copies of the Confidential Information, Receiving Party may retain such copies on a strictly Confidential basis for so long as such copies are not readily accessible and are not used or consulted with for any other purposes, which copies shall remain subject to this Agreement until destroyed or no longer deemed Confidential Information. Disclosing Party shall have the right to require Receiving Party to verify, to Disclosing Party's reasonable satisfaction,that all Confidential Information has been returned, deleted, or otherwise protected from use or disclosure under the terms of this Agreement. 7. Remedies. Receiving Party agrees that money damages would not be a sufficient remedy for any breach of this Agreement and that Disclosing Party shall be entitled to seek injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement. Such remedy shall not be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, RECEIVING PARTY'S LIABILITY TO DISCLOSING PARTY IN CONNECTION WITH THIS AGREEMENT AND ANY CLAIM ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL EXCLUDE ANY OTHER LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE. 8. Compelled Disclosure. In the event the Receiving Party is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other legal process) to disclose any Confidential Information of the Disclosing Party,then the Receiving Party shall provide the Disclosing Party with prompt prior written notice so that Disclosing Party may seek a protective order or other appropriate remedy, and the Receiving Party shall reasonably cooperate with the Disclosing Party's efforts to obtain such relief at no cost to the Receiving Party. 9. Disclosure Pursuant to Colorado Open Records Act(CORA). As a municipal corporation, the City is subject to CORA, §24-72-200.1, C.R.S. et seq. In the event that the City receives a request for Confidential Information, the City will provide written notice thereof to ITC so that ITC may seek a protective order or other appropriate remedy. The City shall reasonably cooperate with ITC's efforts to obtain such relief at no cost to the City, and ITC shall be responsible for payment of any attorney fees and costs, if same should be awarded against City pursuant to § 24-72-204, C.R.S., which may arise out of such request and City's performance of its obligations hereunder. 10. Violation. If the Receiving Party becomes aware of any actual, threatened or impending act by any person or entity that is or might be in violation of any of the restrictions herein with respect to use, disclosure, or copying of Confidential Information,then Receiving Party shall notify the Disclosing Party NO-B-MUTUAL NON-DISCLOSURE AGREEMENT immediately and shall work with the Disclosing Party to remedy the situation. This provision shall not limit any other remedy(including injunctive relief without the need to post a bond)that may be available to Disclosing Party herein at law or in equity. 11. Parties' Rights in Confidential Information. Each Party shall retain all rights, title and interest in and to its Confidential Information. Nothing herein shall be construed as a grant by one Party to the other Party of any rights or license in and to a Party's Confidential Information. Any use, disclosure, reproduction, or transfer of all or part of Confidential Information, or copies or compilations thereof, except in accordance with these provisions is strictly prohibited. 12. Miscellaneous. a. Governing Law. This Agreement shall be governed by, construed in and enforced exclusively in accordance with the laws of the State of Colorado, without regard to its conflict of laws provisions or the residence of its parties. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado. b. Amendments. This Agreement may not be modified, supplemented or changed except pursuant to in a written amendment, signed by a duly authorized representative of each Party. c. Waiver. All waivers of performance of or adherence to the terms and conditions of this Agreement must be in writing and signed by the Party waiving the same. The failure of a Party to require the performance of any obligation herein, or the waiver by a Party of any breach hereof, shall not constitute a waiver of future performance or any subsequent breach. d. Severability. If any provision in this Agreement is held to be invalid or unenforceable,such provision shall be amended to achieve as nearly as possible the objectives of, and the same economic effect as the original provision, and all other provisions shall remain in full force and effect. e. Assignment. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns and shall inure to the benefit of the Parties and, except as otherwise provided herein, to their respective successors and permitted assigns. f. Survival. Any of the provisions in this Agreement which by their nature extend beyond the termination or expiration of this Agreement shall remain in effect until fulfilled and apply to both Parties' successors and assigns. g. Counterparts and Admissibility of Electronic Copies. This Agreement may be executed in multiple counterparts, which together shall constitute a complete document. Unless otherwise prohibited by any applicable laws or regulations, this Agreement may be signed electronically, and such electronic signature shall be deemed, and shall have the same legal force and effect as, an original signature. An electronic copy thereof shall be deemed, and shall have the same legal force and effect as, an original document. h. Headings. Section and paragraph headings and document titles and below are not to be considered part of this Agreement and are included solely for convenience and shall not be held to define, construe, govern or limit the meaning of any term or provision of this Agreement. i. Entire Agreement. This Agreement, including all exhibits and appendices attached hereto, as well as any applicable statements of work and/or orders, embodies the entire agreement and understanding of the Parties, and as of the Effective Date supersedes all prior written or oral agreements or contemporaneous discussions, negotiations, correspondence or other understandings between the Parties, relating to the subject matter hereof. The Parties agree that no Party has made any representation with respect to the subject matter herein or any representation, including the extension and delivery hereof, except such representations as are specifically set forth herein, and each of the Parties acknowledges that it has relied on its own NO-B-MUTUAL NON-DISCLOSURE AGREEMENT judgment and upon the facts within its knowledge in entering into this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to the contrary notwithstanding. j. Duration. All obligations imposed hereunder shall continue in force until the expiration of the Term or the earlier written termination by either Party. The Parties' obligations pursuant to the Section of this Agreement titled "Obligations of Confidentiality" shall survive for two (2) years after any expiration or termination. Notwithstanding expiration or earlier termination of this Agreement, the provisions of this Agreement titled or addressing "Return of Confidential Information," "Remedies," "Violation," "Governing Law," and "Severability" shall survive indefinitely. In no event, however, shall this provision be construed in any manner as a waiver of any applicable statute of limitations. IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective date(s) indicated. ITC Broadband Holdings, LLC PUEBLO ' By: bay-bd. x��i,ip.ee� By: 4440: . Name: David Shipley Name: 4)(341//1' &d a is-we Title: Vice President Title: P(3r/te- Date: 9/7/21 Date: l - . ? '-6)401) NO-B-MUTUAL NON-DISCLOSURE AGREEMENT