HomeMy WebLinkAboutCAO-006-11 Clarington REPORT
Leading the Way
CHIEF ADMINISTRATIVE OFFICE
Meeting: GENERAL PURPOSE AND ADMINISTRATION
Date: June 27, 2011 Rase(u.'hb v : C es -400-il
Report#: CAO-006-11 File: By-law#:
Subject: ENVIRONMENTAL ASSESSMENT PEER REVIEW
OPG REFURBISHMENT AT DARLINGTON N.G.S
Recommendation:
1) That Report CAO-006-11 be received; and
2) That the Mayor and Clerk be authorized to execute a confidentiality agreement with
Ontario Power Generation as described in this Report.
Submitted bQ ( G
Franklin Wu, MAOM
Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T(905)623-3379 F(905)623-5717
REPORT NO.: CAO-006-11 PAGE 2
1.0 BACKGROUND
1.1 Council referred the letter (Attachment 1), dated May 10, 2011 from Bill Robinson,
Executive Vice President of Nuclear Refurbishment to Planning and Engineering
Services (MAY 16, COUNCIL, ITEM D-12). The letter indicated that Ontario Power
Generation (OPG) was interested in funding a peer review by the Municipality of the
Environmental Assessment (EA) for Darlington Nuclear Generation Station
Refurbishment and Continued Operation Project.
1.2 In a May 19, 2011 memo to Council, Staff outlined an approach to carrying out the
Peer Review that would meet the timeline established by OPG. Staff prepared a
terms of reference for negotiation with AECOM Engineering Services. Staff are
following the criteria set out in the agreement with AECOM, Article 2 — Services,
and the Purchasing By-law, Article 94 and Schedule "A", Section 5 i. The Director of
Engineering Services is the administrator of the agreement with AECOM and we are
confident that AECOM will be able to provide the services necessary for this contract
or retain the appropriate sub-consultants.
1.3 AECOM have submitted a draft proposal in response to the Terms of Reference and
it is being reviewed by Staff. Generally it appears to meet the requirements set out
in the Terms of Reference. AECOM and the sub consultants have all previously
worked for the Municipality and are familiar with the site, OPG, Clalington and the
peer review process.
1.4 During 2008/9 AECOM purchased a number of smaller firms and consolidated them
under the umbrella of AECOM. This consolidation in the engineering consulting field
was not unique to AECOM a number of engineering firm consolidations occurred
over the past 5 years. This has made it difficult to retain consultants that do not
have a potential conflict of interest, given the number of projects OPG has underway
and the number of specialized fields of study they retain consultant for. AECOM
has assured Staff that if they are in a position where a conflict may occur unaffiliated
REPORT NO.: CAO-006-11 PAGE 3
sub-consultants will carry out the work and those portions of the work will be signed-
off on the disposition sheets under their own letterhead. A number of procedures
have been put in place to ensure that there is a clear division of labour to ensure
Clarington and OPG can be confident that no bias or perceived bias will occur in the
peer review work.
2.0 CONFIDENTIALITY AGREEMENT
2.1 OPG have requested that the Municipality enter into a confidentiality agreement. It
would address the possibility of confidential, proprietary or security information being
released to the Municipality either during negotiations or in connection with the
environmental assessment process. The confidentiality obligation will terminate
when OPG releases such information to the public.
2.2 Regardless of the request from OPG, it is our standard protocol to respect the
confidential nature of the discussions taken place at these meetings. The request
from OPG is reasonable and simply seeks to formalize the informal understanding.
2.3 The Municipality entered into a similar agreement that bound Staff, our consultants,
sub-consultants and members of Council during the peer review for the New Nuclear
Build.
2.4 The confidentiality agreement does not apply to the release by Staff of a report to
Council for its approval of the Peer Review. It will be considered at a public meeting
of Council.
2.5 The Municipal solicitor and OPG's solicitor will collaborate on drafting of the
agreement, similar in form to Attachment 2. Approval of this report will mean that
the Mayor and Clerk are authorized to sign the Confidentiality Agreement on behalf
of the Municipality when the Solicitor is satisfied with it.
ATTACHMENT NO.1 TO
REPORT CAO-006-11
■��� W.FWIII) Robinson
Nta I1 f 1AAY I G PM 3.
ONTARIOPO0-6. ullve Vice President
GENERATION. Nuclear Refurbishment, Projects& Support
• 889 Brock Road,2"4 Floor,Pickering,ON L1 VV 3,12 Tel: 906.839.6746 ext.6700
Btu; 906.424.3146
bIl I.robinaon @opg.com
May 10,2011
File: NK38-CORR-07420-0384613-LOF
Project Identifier; 10-73000
Mayor Adrian Foster
Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Dear Mayor Foster:
Municipal Peer Review-Darlington Nuclear Generating Station Refurbishment and
Continued Operation Proiect Environmental Assessment
I am writing this letter to confirm Ontario Power Generation's(OPG's)Interest In funding the
Clarington municipal peer review of the Environmental Assessment(EA)for Darlington Nuclear
Generation Station Refurbishment and Continued Operation Project.
The peer review is an important part of this EA process. From past experience OPG has found
that Clarington peer reviews have improved the quality ofYthe EA. It is intended that a technical
peer review of OPG's draft environmental impact statement(EIS)and Technical Support
documents(TSDs)will provide the municipality wi(h assurance that the EA is conducted according
to current standards and codes of practice,and that the potential effects of the project on the
municipality have been addressed.
As discussed with staff,OPG will fund the Municipality for costs associated with the peer review
(i.e. to review the TSD's and the EIS,and provide comments to OPG prior to finalization of the
documents)up to a maximum of$80,000. The work is to be completed in 2011. This level of
funding is consistent with the funding provided for screening level EA's. Of course,should there
be any changes in scope we wilt have further discussions.
I trust that this Information addresses your needs. We will work to get the appropriate contractual
details In place. Please feel free to contact me should you wish to sGuss-tile-metteri
detail. DISTRIBtJ N Sincerely, REVIEWED BY
ARIGINAL 1'O:
o COUNCIL COUNCIL a FILE
N DIRECTION INFORMATION
COPY TO:
13111 Robinson ;
Executive Vice President a FAVOR a OFCOUNCIL a GAO
Nuclear Refurbishment, Projects&Support o CortrtuNITV [i CORPORATE ❑ Ei,!ERGENNCY
Ontario Power Generation SERVICES SERVICES SERVICES
a EmitiEERiiIG a MUNICIPAL a OPERATIONS
cc: Vanessa Hughes-011 SE !ICES CLERK'S
Laurie Swami-P82.4 PLANNING U SOLICITOR a TREASURY
Clerk's Department-Municipality of Clarington SERVICES
DNGD:Refurb Doc Mgmt-011 a OMER
MUNICIPAL CLERICS FILE -
ATTACHMENT NO.2 TO
REPORT CAO-006-11
DRAFT: June 21,2011
CONFIDENTIALITY AGREEMENT
This Agreement is made as of June [•], 2011 between
ONTARIO POWER GENERATION INC., a corporation
existing under the laws of Ontario ("OPG"),
and
THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON, a corporation existing under the laws of Ontario
("Clarington").
Recitals
A. OPG is the owner of the Darlington Nuclear Generating Station, a four-unit nuclear
generating station located on the north shore of Lake Ontario in the Municipality of
Clarington, Ontario.
B. OPG plans to refurbish the generating units at the Darlington Nuclear Generating Station
("DNGS Refurb").
C. Clarington wishes to ensure that the DNGS Refurb will be carried out in the public
interest and in the interest of the general welfare of the inhabitants of the Municipality of
Clarington.
D. The DNGS Refurb is subject to a federal environmental assessment (the"EA Process")
and OPG and Clarington desire to engage in Municipal Peer Review(being a specific
part of the EA Process) as part of the EA Process. During the EA Process, OPG(the
"Disclosing-Party")may disclose to Clarington(the"Receiving Party") certain
information(including applications of that information)which is confidential, a trade
secret or otherwise proprietary to the Disclosing Party.
E. The Disclosing Party would not disclose any such information to the Receiving Party or
to any company or other entity associated or affiliated with the Receiving Party or to any
shareholder, director, officer, employee,partner,representative, agent or advisor
(including a financial advisor, legal counsel or accountant) of the Receiving Party
(collectively,the "Representatives")unless the Receiving Party had first executed this
Agreement.
F. The execution of this Agreement by Clarington's Mayor and Municipal Clerk on behalf
of Clarington is authorized by By-law [•] passed by Clarington's Council at its meeting
on [•] 2011.
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For value received,the parties agree as follows.
1. Definition of Confidential Information. The Disclosing Party may disclose to the
Receiving Party certain information(including applications of that information)which is
confidential, a trade secret or otherwise proprietary to the Disclosing Party,which may include
specifically a draft Environmental Impact Statement("EIS") and approximately [•] Technical
Support Documents (collectively,the"Confidential Information"). Such information
constitutes Confidential Information whether disclosed before or after the date hereof
irrespective of whether it is labelled or otherwise identified as"confidential"or"proprietary"
and regardless of the manner or the media in which it is made available. Confidential
Information does not include,however, information that the Receiving Party is able to
demonstrate to the Disclosing Party's satisfaction, acting reasonably,
(a) was or becomes generally known to the public through no fault of the Receiving
Party or any of its Representatives;
(b) as shown by written record was specifically known by the Receiving Party before
disclosure by the Disclosing Party and was not subject to any confidentiality
obligation;
(c) as shown by written record was developed by the Receiving Party independent of
the Confidential Information; or
(d) was or becomes known to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, so long as such source was not subject to
any confidentiality obligation.
2. Ownership and Treatment of Confidential Information. All Confidential Information
remains, at all times,the exclusive property of the Disclosing Party. Except as expressly set out
in this section 2, neither the Receiving Party nor any of its Representatives has any license or
other right to use or disclose any Confidential Information for any purpose whatsoever. The
Receiving Party may use Confidential Information only in connection with the Municipal Peer
Review. The Receiving Party may provide Confidential Information to its Representatives so
long as the Receiving Party ensures that such Representatives only use the Confidential
Information for the purposes permitted under this section 2. Before providing any Confidential
Information to any of its Representatives,the Receiving Party will first inform such
Representative of the confidential nature of the Confidential Information and of the Receiving
Party's obligations under this Agreement. The Receiving Party will use the same means to
protect the confidentiality of the Confidential Information that the Receiving Party uses to
protect its own confidential and proprietary information,but in any event the Receiving Party
will use not less than reasonable means. The Receiving Party shall prepare and maintain a
register of the identity of those persons to whom it has provided Confidential Information as
permitted under this Agreement, and the Receiving Party shall furnish a copy of the said register
to the Disclosing Party upon request.
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3. Required Disclosure of Confidential Information. If the Receiving Party or any of its
Representatives are required by law, or are required or requested in any judicial or administrative
proceeding or by any governmental authority,to disclose any Confidential Information,the
Receiving Party will, and will cause its Representatives to:
(a) provide prompt notice of the existence,terms and circumstances of such
requirement or request to the Disclosing Party so that the Disclosing Party may
seek an appropriate protective order or waive compliance with the terms of this
Agreement;
(b) consult with the Disclosing Party on the advisability of taking legally available
steps to resist or narrow such requirement or request; and
(c) disclose, if disclosure of such information is required, only such information as is
required by law and use the Receiving Party's best efforts, and cause its
Representatives to use their best efforts,to obtain an order or other reliable
assurance that confidential treatment will be accorded to such portion of the
disclosed information as the Disclosing Party designates.
4. Return of Confidential Information. At any time, at the Disclosing Party's request,the
Receiving Party will deliver promptly to the Disclosing Party all, or a Disclosing Party-specified
portion of,the Confidential Information,together with all copies, extracts or other reproductions
in whole or in part of such Confidential Information. In addition, at any time, at the Disclosing
Party's request,the Receiving Party will destroy,promptly and irrevocably:
(a) all such copies, extracts or other reproductions of Confidential Information, or a
Disclosing Party-specified portion of Confidential Information,which cannot,
because of the device on which such Confidential Information is stored,be
removed from the possession of the Receiving Party by delivery to the Disclosing
Party; and
(b) all analyses, compilations, studies, documents,memoranda,notes and other
writings and information whatsoever (regardless of the form,medium or device
on or in which such Confidential Information is written,recorded, stored or
reproduced)prepared by the Receiving Party or its Representatives and which is
based on any of the Confidential Information.
Following such delivery and destruction,the Receiving Party will promptly provide the
Disclosing Party with written confirmation of completion. In any event,the Receiving Party will
complete all such actions within 10 business days of receipt of the Disclosing Party's initial
request. The confidentiality obligations set out in this Agreement will survive any such
destruction.
5. Remedies. The Receiving Party acknowledges that the Disclosing Party would not have an
adequate remedy at law for money damages if the Receiving Party fails to fulfil any of its
obligations under this Agreement. Accordingly,the Disclosing Party will be entitled to any
injunction, specific performance or other remedy in law or equity(without being required to post
a bond or other security), in respect of any breach or threatened breach of this Agreement. The
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Receiving Party will indemnify the Disclosing Parry from all damages, liabilities, costs and
losses (including legal fees and expenses on a dollar for dollar full indemnification basis)
suffered or incurred by the Disclosing Parry and arising in respect of a breach or threatened
breach of any term of this Agreement by the Receiving Party or any of its Representatives (even
after any Representative ceases to be a Representative of the Receiving Party).
6. General Terms. The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and are not to affect the construction or
interpretation of this Agreement. Words importing the singular include the plural and vice versa.
The term"including"means "including without limitation", and the terms "includes"and
"included"have similar meanings. The term"entity"means any individual, sole proprietorship,
partnership, corporation, limited liability company,trust,joint venture, governmental authority
or any other incorporated or unincorporated entity or association of any nature. This Agreement
is governed by, and is to be construed and interpreted in accordance with,the laws of Ontario
and the laws of Canada applicable in Ontario. The parties irrevocably submit to the non-
exclusive jurisdiction of the courts of Ontario in respect of any matter relating to this Agreement.
If any term of this Agreement is or becomes illegal, invalid or unenforceable,the illegality,
invalidity or unenforceability will be deemed severable and will not affect any other term of this
Agreement. For every term of this Agreement,time is of the essence. This Agreement
constitutes the entire agreement between the parties with respect to the subject matter and
supersedes all prior agreements,negotiations, discussions,representations, warranties and
understandings,whether written or verbal. Neither party may assign this Agreement without the
prior written consent of the other party. This Agreement enures to the benefit of and binds the
parties and their respective successors and assigns. No term of this Agreement may be amended
or waived except in writing. No failure to exercise, and no delay in exercising, any right or
remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver
of any breach of any term of this Agreement will be deemed to be a waiver of any subsequent
breach of that term. The Disclosing Party makes no representation or warranty as to the
accuracy or completeness of any of the Confidential Information and the Disclosing Party and its
Representatives will have no liability to the Receiving Party or any of its Representatives in
respect of the use of or reliance on the Confidential Information. The obligations of the
Receiving Party under this Agreement will survive the public filing of the final EIS and
Technical Support Documents. This Agreement may be signed and delivered in any number of
counterparts, each of which when signed and delivered is an original but all of which taken
together constitute one and the same instrument. This Agreement may be delivered by fax.
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The parties have duly executed this Agreement.
ONTARIO POWER GENERATION INC. THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Name: [.]
Title: Mayor
I have authority to bind the Corporation
[•]
Municipal Clerk
We have authority to bind the Municipality