Loading...
HomeMy WebLinkAbout05 004 agree bp, opg confident - . e e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2005 - 004 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AMENDED CONFIDENTIALITY AGREEMENT WITH BRUCE POWER L.P. AND ONTARIO POWER GENERATION INC. 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 deemed it advisable to enter into a Confidentiality Agreement with Bruce Power L.P. in respect to a property tax settlement between Ontario Power Generation Inc., the Municipality of Kincardine and the Municipal Property Assessment Corporation relating to the nuclear power facility leased and operated by Bruce Power with the passage of By-law No. 2004 - 114; AND WHEREAS it will become necessary, from time to time, to disclose to the Municipality of Kincardine information, documentation, site plans and drawings considered by Bruce Power L.P. and Ontario Power Generation Inc. to be of a confidential nature; AND WHEREAS it has been determined that Ontario Power Generation Inc. should be a named party in the agreement between the Municipality of Kincardine and Bruce Power L.P. NOW THEREFORE the Council for The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That Section 1 of By-law No. 2004-114, entitled "Bruce Power L.P. Confidentiality Agreement By-law", is revoked and the following section substituted: "That the Corporation of the Municipality of Kincardine enter into an amended confidentiality agreement with Bruce Power L.P. to include Ontario Power Generation Inc. as a party to the agreement which provides for the level of confidentiality and security required to provide access to and information on or related to the nuclear facilities owned by Ontario Power Generation Inc. and leased and operated by Bruce Power L.P. and located within the Municipality of Kincardine". . . ./2 e e e - Page 2 Bruce Power, OPG Amended Confidentiality Agreement By-law No. 2005 - 004 2. That the Mayor and Treasurer 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, OPG Amended Confidentiality Agreement By-law". READ a FIRST, SECOND and THIRD TIME and FINALLY PASSED this 12th day of January, 2005. Ao, J. A - Mayor ~-~-==~ ? -\ ~\ 0. . ~ Clerk 'i ~ · · · ) This is Schedule" iL "to ~ No..:Jnr.ñ~sed 1he.li1-~ o~~ CONFIDENTIALITY AGREEMENT . Mayor THIS AGREEMENT IS MADE AS OF THE 1ST DAY OF MARCH, 2004 BETWEEN BRUCE POWER L.P., a limited partnership formed under the Laws of the Province of Ontario and having its principal place of business at P.O. Box 3000, Building B06, 177 Tie Road, Municipality of Kincardine, R.R. #2, Tiverton, Ontario NOG 2TO (hereinafter referred to as the "Company") and ONTARIO POWER GENERATION INC. (hereinafter referred to as "OPG") and THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (hereinafter referred to as the "Recipient") (collectively referred to as the "parties" and individually a "party") WHEREAS it is the statutory obligation of the Municipal Property Assessment Corporation ("MPAC") to make various assessments of buildings, structures and land at the nuclear power facility owned by OPG or affiliated companies and leased and operated by the Company located near Tiverton, Ontario (the "Site"), including assessments for stranded debt purposes, pursuant to the Assessment Act and the Electricity Act. 1998 (the "Assessment"); AND WHEREAS in order for MP AC to perform the Assessment, it wil\ become necessary, ITom time to time for OPG to obtain ITom the Company and then to disclose to MP AC information, documentation, site plans or drawings that the Company or OPG considers to be of a confidential nature; AND WHEREAS the Recipient is a statutory party to any appeals or reconsideration of the Assessment, the Company and OPG wish to define their rights and obligations with respect to any and all such information provided to the Recipient by MP AC or the Company or OPG; AND WHEREAS as part ofa settlement of appeals of the Assessment for taxation years 1999 to 2002 between OPG and the Recipient, the Company and OPG in future years may disclose to the Recipient, information, documentation, site plans or drawings that the Company or OPG considers to be of a confidential nature; " ....~- -2- AND WHEREAS the Company and OPG wish to defme their rights and obligations with respect to any and all information provided to the Recipient; . NOW THEREFORE in consideration ofthe foregoing recitals, the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereby declare, covenant and agree as follows: 1. "Confidential Information" shall be defined as any and all data and information in any format or form, electronic, written, visual or oral, relating to the business, affairs or operations of the Company or OPG, which at any time may be communicated or revealed to the Recipient, either directly or indirectly by the Company or OPG or any of their representatives, including, but not limited to, site plans, drawings, contracts, reports, memoranda, legal documentation, financial data, present or future business plans or strategies, customer dat¡¡, technology, design techniques, and all other information not generally ascertainable ITom public or published information. The Recipient agrees that Confidential Information is to be treated as confidential information within the meaning of section 10 of the Municipal Freedom of Information and Protection of Privacy Act. Confidential Information will not include information which: . (a) has rightfully been in the possession of the Recipient prior to the date of disclosure of such information by the Company or OPG hereto (for certainty, information disclosed to the Recipient for purposes related to property tax assessments prior to the date written above shall be considered Confidential Information); (b) has been in the public domain prior to the date of disclosure of such information by the Company or OPG hereto; (c) has become part of the public domain by publication or by other means except by means of an unauthorized act or omission on the part of the Recipient; (d) has been lawfully obtained by the Recipient ITom a third party independent of the Company or OPG who, to the knowledge of the Recipient, is not under any obligation of confidence to the Company or OPG hereto; and, (e) is required to be disclosed by order of Court or governmental authority. 2. The Recipient agrees to disseminate the Confidential Information only to its respective directors or elected members of Council, officers, employees, or professional advisors including, without limitation, legal counsel and property tax advisors, if any, directly .. . ill\7()lved\Vith the appeals or consideration of any Assessment, and anyone else who is approved in writing by the Company or OPGiiS appropriate prior to dissertllrtatìort; . (collectively, the "Representatives"), and who agree to be bound by the covenants set out herein. The Recipient agrees to be responsible for and accepts liability in respect of any breach of the provisions herein including the unauthorized disclosure or use of the Confidential Information or any part thereof by any of its Representatives. ....- -. .....~: , . . -e--p-- " - 3 - 3. The Recipient and its Representatives shall receive and maintain the Confidential Information in the strictest of confidence and shall only use the Confidential Information for the limited purpose of enabling the Recipient to review or appeal the Assessment and for no other purpose or use, and shall not disclose the Confidential Information or any part thereto to any other person or entity except for OPG and its professional advisors including, without limitation, legal counsel and property tax advisors, except in accordance with the covenants herein. 4. The Recipient and its Representatives agree that the Confidential Information is and shall remain the property of the Company or OPG and shall not copy or reproduce any written materials comprising a part of the Confidential Information without the Company's or OPG's prior written consent as appropriate, except as may be necessary to review or appeal the Assessment. 5. At the option of the Company or OPG and upon its request, the Recipient and its Representatives shall promptly return or destroy all notes, memoranda, correspondence, documents and any other Confidential Information, including all copies thereof, either furnished hereunder or prepared by the Recipient or its Representatives (at the option of the Recipient, any notes or memoranda prepared by a representative of the Recipient which include information derived ITom the Confidential Information will be destroyed). Any destruction of such Confidential Information shall be confirmed in writing upon the request of the Company or OPG. 6. Without the prior written consent of the Company or OPG as appropriate, which will not be refused unreasonably, the Recipient will not disclose to any person, with the exception of (a) OPG and its professional advisors including, without limitation, legal counsel and property tax advisors; (b) MPAC; and (c) the Ministry of Finance, the fact that the Confidential Information has been made available to the Recipient and then only upon furnishing the Company or OPG with immediate written notice. 7. The Recipient agrees that a breach of any of the covenants set out herein shall have material and adverse consequences to the Company or OPG and that damages arising ITom the said breach may be difficult to quantify. Accordingly, the Recipient agrees that should it, or any of its Representatives, breach any provision herein, that in addition to any other right or remedy at law or in equity, the Company or OPG shall be entitled to an immediate injunction or other appropriate order to restrain any such breach by the Recipient without quantifying the damage sustained by the Company or OPG. 8. The Recipient hereby agrees to indemnify, defend and hold the Company or OPG harmless ITom and against any and all loss, cost, expense, liability, claim or cause of action, including legal.feesand other costs of litigation incurred in connection with.such claims, which the Company or OPG may incur or be subject to arising ITom the breach of any provision of this agreement by the Recipient. 9. If any provision herein is determined to be invalid or unenforceable in whole or in part, it shall be deemed not to effect the validity of the remaining provisions and each section herein is hereby declared to be a separate and distinct provision. ,'I- . . . ( - 4- IN WITNESS HEREOF the parties have, by their duly appointed representatives who each have the authority to bind the parties, executed this Agreement as of the date first noted above. BRUCE POWER L.P., by its General Partner, Bruce Power Inc. .' By: By: -Þ~ ~r1""'¿ Brian ArmStrong General Counsel & ColpOLate Secretary GENERATION INC. BRUCE pOWER LA.W DIVISION Appnwe<!: ..a.P Date: t'ù* "d,M By: Fred Long. VP Financial Planning & TaJ<aUon THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE By: ß¡€ø.. ./. Á.~ ,- By: 'b--~ z.~ ~ Name: Glenn R. Sutton Title: Mayor Duly Authorized Name: Brench French Title: Treasurer .' -',,- """1: ".,' .... " .. ..