HomeMy WebLinkAbout10287
Action by the Mayor:
☒ Approved on September 28, 2022 .
□ 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
City Clerk
City Clerk’s Office Item # R-17
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: September 12, 2022
TO: President Heather Graham and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Marisa Stoller, City Clerk
FROM: Barbara Huber, Fire Chief – Fire Department
SUBJECT: AN ORDINANCE APPROVING A NON-DISCLOSURE AGREEMENT
BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND COLORADO
SPRINGS UTILITIES, AN ENTERPRISE OF THE CITY OF COLORADO
SPRINGS AND AUTHORIZING THE MAYOR TO EXECUTE SAME
SUMMARY:
This ordinance approves an NDA with Colorado Springs Utilities regarding information sharing.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
As part of emergency planning and collaboration the City of Pueblo enters into this agreement
with Colorado Springs Utilities to allow the sharing of confidential information as it pertains to
emergency planning.
FINANCIAL IMPLICATIONS:
None.
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
None.
RECOMMENDATION:
Approval of the Ordinance.
ORDINANCE NO. 10287
AN ORDINANCE APPROVING A NON-DISCLOSURE
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL
CORPORATION, AND COLORADO SPRINGS UTILITIES,
AN ENTERPRISE OF THE CITY OF COLORADO SPRINGS,
AND AUTHORIZING THE MAYOR TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO that:
SECTION 1.
The Non-Disclosure Agreement (“Agreement”) between and Pueblo, a municipal
corporation and Colorado Springs Utilities, an enterprise of the City of Colorado Springs,
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 therein.
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 12, 2022.
Final adoption of Ordinance by City Council on September 26, 2022 .
President of City Council
Colorado Springs Utilities
us how we re all connected NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement ("Agreement") is made and entered into as of the 26th day of September 2022,
("Effective Date") by and between Colorado Springs Utilities ("Utilities"), an enterprise of the City of Colorado Springs, a
Colorado home rule city and municipal corporation, located at 121 S. Tejon Street, Colorado Springs,Colorado, 80903, and
Pueblo a municipal corporation by and on behalf of the Pueblo Fire Department ("Stakeholder"), with principal place of
business of Pueblo Fire Department at 1551 Bonforte Blvd, Pueblo,CO 81001. Utilities and Stakeholder may be individually
referred to as a"Party"and collectively referred to as the"Parties" under this Agreement.
WHEREAS, Utilities agrees and Stakeholder recognizes that there is a need to disclose certain confidential or
proprietary information of Utilities in connection with all Business Continuity Plans; Emergency Action, Emergency
Response,and Business Recovery(collectively the"Plans")as may be updated or amended from time to time;
WHEREAS,although Stakeholder is subject to Federal law the Stakeholder shall also comply with the additional
safeguards of this Agreement; and
WHEREAS, Utilities and Stakeholder recognize the need to preserve the confidentiality of information relating to the
specialized details of the Plan(s).
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Stakeholder and Utilities agree as
follows:
1. Confidential Information. Stakeholder hereby acknowledges that it has been or may be exposed to confidential or
proprietary information ("Confidential Information"), regardless of form (oral or written), disclosed by Utilities to
Stakeholder in connection with the Plan(s), including, but not limited to critical infrastructure information, personal contact
information, and plan response. Dijital copies and/or GIS data for dam inundation maps located in El Paso County, and
all information included in the Plan(s) is confidential and proprietary and shall be deemed Confidential Information.
2. Covenant Not To Disclose. Stakeholder hereby agrees that it shall not use,commercialize, or disclose Confidential
Information to any person or entity, except to its own employees solely on a "need to know" basis and provided that
Stakeholder takes appropriate steps to cause each employee to whom Confidential Information is disclosed to preserve the
confidentiality of the Confidential Information and to be bound by the restrictions imposed by this Agreement. Stakeholder
shall use at least the same degree of care in safeguarding Confidential Information as it uses in safeguarding its own
confidential information,but in no event less than reasonable care. Nothing in this Agreement is intended to or shall grant to
Stakeholder an ownership right, a license, or other right of any nature to use Confidential Information except as expressly
provided in this Section 2.
3. Exceptions to Obligations. Notwithstanding the foregoing,this Agreement shall not apply to information which:
(a) is already known to Stakeholder, provided that such prior knowledge can be substantiated by written records
and documents and was not disclosed by Utilities to Stakeholder pursuant to a Confidentiality Agreement
similar to this Agreement;
(b) has become publicly known through no act of Stakeholder;
(c) has been rightfully received from a third party who had a bona fide right to make such disclosure;
(d) has been independently developed by Stakeholder without reliance on the Confidential Information;
(e) has been approved for release by written authorization of Utilities; or
(f) is required to be disclosed by a court,a governmental agency,or by law,specifically the Colorado Open Records
Act("CORA"), § 24-72-200.1, C.R.S. et seq. As municipal corporations, it is understood and acknowledged
that the Parties are subject to CORA. In the event that the a Party receives a request for Confidential Information
(the "Receiving Party"), the Receiving Party will provide written notice thereof to the other Party (the"Non-
Receiving Party") so that the Receiving Party may seek a protective order or other appropriate remedy. The
Non-Receiving Party shall cooperate with the Receiving Party's efforts to obtain such relief, and the Parties
shall equally bear the costs of seeking the protective order or other appropriate remedy unless the Parties
mutually agree in writing otherwise..
The burden of proving the applicability of one of the above exceptions shall be on Stakeholder. Stakeholder will
provide Utilities with prompt written notice at address set forth above of any request by legal authorities or relating to legal
or similar process (e.g., interrogatories or subpoenas) to disclose any Confidential Information so Utilities may, in its sole
discretion, seek to obtain an appropriate protective order or waive compliance with this Agreement.
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4. Unauthorized Disclosure. In the event of any unauthorized disclosure, use, or other misappropriation of any
Confidential Information by Stakeholder(including its officers,directors,employees,and agents),Stakeholder shall promptly
notify Utilities in writing at the address set forth above and shall take all actions reasonably required or advisable to recover,
or prevent the unauthorized use or disclosure of, such Confidential Information.
5. Injunctive Relief; Remedies. Stakeholder agrees that any violation of the terms of this Agreement would cause
immediate and irreparable harm to Utilities, and Stakeholder therefore agrees that upon the existence of any breach or
threatened breach of this Agreement, Utilities may immediately obtain a temporary restraining order or other form of
equitable relief from an appropriate court of competent jurisdiction. Stakeholder agrees not to contest the granting of such
temporary restraining order or other equitable relief. Such order shall become permanent upon adequate showing of
irreparable injury and ruling by a court of law. Stakeholder may participate in any proceeding relating to a permanent
injunction. This provision shall not limit the right of Utilities to other damages and legal relief in addition to or substitution
for such equitable relief.
6. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the law
of the State of Colorado, without regard for the law of conflicts, and Federal law. In the event of litigation,this Agreement
shall be enforceable by or against the City of Colorado Springs on behalf of Utilities as provided in the Colorado Springs
City Code §12.1.109. Any dispute regarding this Agreement may only be brought in the El Paso County District Court,
Colorado Springs, Colorado, or for matters of exclusive federal jurisdiction United States District Court for the District of
Colorado.
7. Term. This Agreement shall remain in effect during all discussions and exercises related to the Plan(s) between
Utilities and Stakeholder and shall not terminate for ten (10) years from the disclosure of the last item of Confidential
Information subject to this Agreement.
8. Return or Destruction of Information. Upon receipt of an updated version of any Plan(s) Stakeholder agrees to
destroy superseded Plan(s), or Stakeholder agrees to return or destroy all Confidential Information of Utilities together with
any notes,documents,copies,or other materials prepared by Stakeholder with respect to such Confidential Information within
ten(10)days following the receipt of the updated version of the Plan(s)or a specific request from Utilities. Stakeholder shall
provide written certification of such return or destruction to Utilities in writing at the address set forth above.
9. Disclaimer. Utilities does not warrant the accuracy of the information contained in any plans or maps related to the
Plan(s).
10. Entire Agreement. This Agreement constitutes the entire agreement between the parties. Utilities and Stakeholder
acknowledge and agree that no other statement,representations,agreements or warranties,except those outlined herein,apply
to the terms and conditions of this Agreement. The terms of this Agreement may only be modified by a written amendment
executed by both parties. Email and all other electronic (including voice)communications from Utilities in connection with
this Agreement are for informational purposes only. No such communication is intended by Utilities to constitute either an
electronic amendment or an electronic signature, or to constitute any agreement by Utilities to conduct a transaction by
electronic means. Any such intention or agreement is hereby expressly disclaimed.
11.Assignment.This Agreement may not be assigned or delegated by Stakeholder without the prior written approval of
Utilities. The rights and obligations of each of the parties will inure to the benefit of, will be binding upon, and will be
enforceable by the parties and their lawful permitted successors, assigns,and representatives.
12.Non-Waiver/Severability. A waiver of any right under this Agreement by a party on any occasion shall not in any
way constitute a waiver of such right or any other right on any other occasion. In the event any provision of this Agreement
is determined to be invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement, and the
parties shall substitute for the invalid provision a provision which most closely approximates the intent and economic effect
of the invalid provision.
In witness whereof,the parties have executed this Agreement as of the date first written above and the execution of this
Agreement by representative of Stakeholder further certifies that the representative is duly authorized to commit Stakeholder
to this Agreement in its entirety:
F07-00076(Version approved as to form 2/2021 rsc) 2 of 3 NDA
COLORADO SPRINGS UTILITIES STAKEHOLDER
By: By: 71— f4.eala 44,04.44:0)
Name:Bryan Babcock Name:Nicholas Gradisar
Title:General Manager,Colorado Springs Utilities Title:Mayor
Date: L (L � "'�"'
� Date: �/ — Or'�j
0- .2D)
F07-00076(Version approved as to form 2/2021 rsc) 3 of 3 NDA