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Home My WebLink About05 155 Agree Bruce Power LP e e e ·e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO.~ BEING A BY-LAW TO AUTHORIZE THE SIGNING OF A CONFIDENTIALITY AGREEMENT WITH BRUCE POWER L.P. WHEREAS Section 8 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other act; AND WHEREAS Section 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended confers broad authority on municipalities to enable them to govern their affairs as they consider appropriate and to enhance their ability to respond to municipal issues; AND WHEREAS the Council for The Corporation of the Municipality of Kincardine deems it advisable to enter into a Confidentiality Agreement with Bruce Power L.P. in respect to lands and/or facilities currently owned by Ontario Power Generation and currently leased and operated by Bruce Power L.P.; AND WHEREAS it will become necessary, from time to time, to disclose to the Municipality of Kincardine information considered by Bruce Power L.P. to be of a confidential nature; NOW THEREFORE the Council for The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That the Corporation of the Municipality of Kincardine enter into a confidentiality agreement with Bruce Power to provide the level of confidentiality and security required to provide access to and information on or related to facilities which it leases and operates from Ontario Power Generation Inc. within the Municipality of Kincardine. 2. That the Mayor and CAO be authorized to sign, on behalf of The Corporation of the Municipality of Kincardine, the Confidentiality Agreement attached to this By- law as Schedule "A". 3. This By-law shall come into full force and effect upon its final passage. 4. This By-law may be cited as the "Bruce Power L.P. Confidentiality (Land) Agreement By-law". READ a FIRST, SECOND and THIRD TIME and FINALLY PASSED this 21$t day of September, 2005. ß1()~ ¡t. k . Mayor Clerk , , CONFIDENTIALITY AGREEMENT Corporation of the Municipality of Kincardine 1475 Concession 5 R.R.#5 Kincardine, Ontario, N2Z 2X6 January 17, 20QlID c~ To: Bruce Power L.P. ("Bruce Power") :r ~ i?' jJ(14 In order for the Corporation of the Municipality of Kincardine (hereinafter referred to as "we" or "us") to consider taking an interest in lands and facilities owned by Ontario Power Generation Inc. and currently leased and operated by Bruce Power L.P., and the real property on which it lies (the "Potential Transaction"), you will furnish us with certain information which is non-public, confidential or proprietary in nature. All information (whether written, oral or stored in any computer or other electronic, magnetic or optical storage system) furnished (whether before or after the date hereof) to us or to our representatives, including without limitation, our lawyers, accountants, consultants and financial advisors (collectively, "Representatives") by you or your agents, together with all data, notes, analyses, compilations, forecasts, reports, studies, interpretations and other documents prepared by us or our Representatives containing or based upon such information is hereinafter referred to collectively as the "Information". In consideration of your furnishing us with the Information, we agree that: 1. The Information will be kept confidential and shall not, without your prior written consent, be disclosed by us or by our Representatives in any manner whatsoever, in whole or in part, and shall not be, directly or indirectly, used or exploited by us or our Representatives, other than in connection with our consideration of the Potential Transaction. We will reveal the Information only to our Representatives who have a substantiated need to know the Information for the purposes of completing the Potential Transaction who are informed by us of the confidential nature of the Information and who shall agree in writing to be bound by the terms and conditions of this Agreement. We shall take necessary measures to ensure that said Representatives are aware and will comply with the restricted use and non-disclosure provisions of this Agreement. We shall be strictly liable for any breach of this Agreement by any of our Representatives. 2. Information received shall not be mechanically copied or otherwise reproduced without the written consent of Bruce Power, except for such copies as may be absolutely required for the purposes set out herein. All copies shall contain the same proprietary and confidential designations that appear on the original Information. · 3. Without the prior written consent of Bruce Power, except as required by law (and subject to paragraph 7), neither we nor our Represemcltives will disclose to any person other the fact that the Information has been made available, rhat discussions or negotiations are taking place or have taken place concerning the Project or any of the terms, conditions or other matters respecting the Project. If any such disclosure is required, we will consult with you with respect to such disclosure. 4. We and our Representatives shall keep a record of the Information furnished to us and of the location of such Information. All copies of the Information, except for that portion of the Information which consists of data, notes, analyses, compilations, forecasts, studies, interpretations or other documents prepared by us or our Representatives (collectively, "Work Product"), will be returned to you immediately upon your request. That portion of the Information which consists of Work Product will be destroyed upon your request and, if requested by you, we shall provide you with a certificate certifying as to the complete return and destruction of all Information in accordance with the terms of this paragraph. 5. The term "Information" shall not include such portions of the 'Information which (i) are or become generally available to the public other than as a result of disclosure by us or our Representatives, (ii) are received from an independent third party who had obtained the information lawfully and was under no obligation of secrecy to you, or (iii) were in our possession before we received such Information from you, or (iv) were independently developed by us or by our Representatives or on our behalf by personnel having no access to the Information at the time of independent development. 6. We acknowledge that you make no express or implied representation of warranty or guarantee as to the accuracy or completeness of the Information or with respect to the non-infringement of patents or other rights of third parties, and that you expressly disclaim any and all liability that may be based on the Information, errors therein, our use thereof or the results of our use thereof, or omissions therefrom. We agree that we are not entitled to rely on the accuracy or completeness of the Information. 7. If we or anyone to whom we transmit the Information pursuant to this Agreement become legally compelled to disclose any of the Information or any of the matters referred to in paragraph 2, we will provide you with prompt notice (at P. O. Box 3000, BOG02, 177 Tie Road, Municipality of Kincardine, RR2 Tiverton, Ontario, NOG 2TO, Facsimile No. 519-361-4333, to the attention of General Counsel & Corporate Secretary) so that you may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that Bruce Power waives compliance with the provisions of this Agreement, we will furnish only that portion of the Information which we are advised, by written opinion of counsel, addressed to us and to you, is legally required and will exercise our best efforts to obtain reliable assurance that confidential treatment will be accorded to the Information so furnished. -2- · ,- 8. Any provision in this Agreement which is prohibited or uncnforceabie in any jurisdiction shail, as to such jurisdiction, be ineffective in such jurisdierion to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. 9. This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract. 10. We acknowledge that disclosure of the Information contrary to the terms of this Agreement would cause irreparable harm to Bruce Power not solely compensable in damages and we hereby agree to the granting of injunctive relief in your favour without proof of actual damages, in addition to any other remedy you may be entitled to. 11. We understand that the Information is confidential commercial, financial, scientific, technical, and/or labour relations information and/or contain trade secrets, and is supplied on that basis; and that disclosure of this Information could reasonably be expected to either cause material financial loss to Bruce Power, to prejudice Bruce Power's competitive position, or to interfere with negotiations in which Bruce Power is engaged. 12. Information that is disclosed to us and all rights in and to such Information held by Bruce Power at the time of disclosure shall remain the property of Bruce Power and shall not be diminished by such disclosure and shall by held by us for the benefit of Bruce Power. 13. This Agreement shall enure to the benefit of and be binding upon our respective successors and assigns. 14. We further agree that (a) this Agreement constitutes the understanding and agreement between us and Bruce Power relative to the protection of Information for the use herein described and, for that purpose, supercedes all prior and collateral communications, undertakings and agreements between the us and Bruce Power; (b) in case of conflict between this Agreement and other non-disclosure agreements between us and Bruce Power, this Agreement shall have priority in relation to the Information disclosed for the purposes set out above; and (c) this Agreement shall apply in lieu of any specific legend or statement associated with any particular Information disclosed and our duties and obligations shall be determined exclusively by the terms and conditions herein. 15. For the purposes of this Agreement, "affiliate" has the meaning ascribed thereto in the Canada Business Corporations Act. 16. Our obligations pursuant to this Agreement shall terminate fifteen (15) years from the date first mentioned above. - 3 - ~ , Yours very rruly, Corporation of the Municipality of Kincardine per: ~ ~ ~~'<;). '^-4 Name: Jonh deRosenroll Chief Administrative Officer Duly Authorized . Witnessed by: tf11~"'( C~'J I tle4"'f Title: £~~C Ie I-Iw 4sSi s ./..;... I- Name: Cori 1\ n e -4- per: ßJt.. ...((. A . Name: Glenn R. Sutton Mayor Duly Authorized