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HomeMy WebLinkAboutLGL-005-16Legal Services Report If this information is required in an alternate accessible format, please contact the Municipal Clerk at 905-623-3379 ext. 2102. Report To: General Government Committee Date of Meeting: September 26, 2016 Report Number: LGL-005-16 File Number: Department File #2010-08-25 By-law Number: Report Subject: Port Granby Confidentiality Agreement Recommendations: 1.1 That Report LGL-005-16 be received; and 1.2 That Council authorize the Mayor and the Clerk to sign the Confidentiality Agreement attached to this Report (Attachment No. 1). Municipality of Clarington Page 2 Report LGL-005-16 Report Overview Canadian Nuclear Laboratories Ltd. has requested that the host municipalities execute a Confidentiality Agreement respecting the Port Hope Area Initiative project. Staff support the request. 2. Background 2.1 On March 29, 2001, Clarington and Her Majesty The Queen in Right of Canada (“Canada”), along with the Municipality of Port Hope and the former Township of Hope, entered into an agreement for the clean-up and long-term safe management of low-level radioactive waste located within Port Hope and Clarington (the “Agreement”). 2.2 Under the Agreement, Canada was entitled to establish a “federal operating agency” to act on its behalf. Such an agency was established in 2012 as the Port Hope Area Initiative Management Office, which was initially managed by Atomic Energy of Canada Limited. Subsequently, in November of 2014, the management of the Port Hope Area Initiative Management Office was transferred to Canadian Nuclear Laboratories Ltd. (“CNL”). 2.3 The Agreement provides that Clarington and Canada will develop and maintain communications and professional working relationships throughout the life of the project and that they will consult and cooperate with each other in order to expedite the completion of the project. 2.4 In order to facilitate such communications and cooperation, CNL has requested that the Agreement attached to this Report (Attachment No. 1) be entered into in order to ensure that all confidential information exchanged during or in relation to any discussions concerning the project and other matters provided for in the Agreement are not disclosed to or discussed with third parties, without the other party’s prior consent. 3. Discussion 3.1 Every agreement that Clarington has entered into with Canada (through its operating agency) in relation to the project after the original Agreement was signed has contained confidentiality clauses. Examples include the “Agreement for the Construction, Maintenance and Use of Municipal Roads for the Port Municipality of Clarington Report LGL-005-16 Page 3 Granby Project” dated April 11, 2012 and the “Agreement for the Construction, Maintenance and Use of Lakeshore Road and Nichols Road South for the Port Granby Project” dated April 25, 2014. 3.2 Individual confidentiality agreements have also been signed to deal with the tender documentation relating to the Project. 3.3 The Confidentiality Agreement attached to this report (Attachment No. 1) does two things. First, it removes any uncertainty with respect to documents that come into our possession relating to the project. Second, it sets out an accurate description of what our obligation is under the Municipal Freedom of Information and Protection of Privacy Act respecting information that is supplied to us with an expectation of confidentiality. It does not make something confidential that is not otherwise confidential. 3.4 Staff support CNL’s request to enter into the confidentiality agreement. 4. Concurrence 4.1 The Interim CAO has reviewed this report and supports the recommendations. 5. Conclusion 5.1 Strategic Plan Application – not applicable Submitted by: Reviewed by: Andrew C. Allison, B. Comm, LL.B Curry Clifford, MPA, CMO Municipal Solicitor Interim CAO Staff Contact: Andrew C. Allison, 905-623-3379 ext. 2013 or aallison@clarington.net Attachment: Attachment 1 – Proposed Port Granby Confidentiality Agreement Attachment #1 to Report LGL-005-16 Template Version. 2012-02-14 R0 Page 1 of 5 CONFIDENTIALITY AGREEMENT THIS AGREEMENT made the day of 2016. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (“CLARINGTON”) and CANADIAN NUCLEAR LABORATORIES LTD., a company established under the laws of Canada having its main offices in Chalk River, Ontario (“CNL”) RECITALS: A. On March 29, 2001 CLARINGTON and Her Majesty The Queen in Right of Canada (“Canada”), along with the Municipality of Port Hope, entered into an agreement for the cleanup and long- term safe management of low-level radioactive waste located within Port Hope and Clarington, (the “Cleanup Agreement”). This cleanup is known as the Port Hope Area Initiative (PHAI) project. B. The Cleanup Agreement provides that CLARINGTON and Canada shall develop and maintain excellent communications and professional working relationships throughout the life of the PHAI project (Article 5.2) and they shall consult and cooperate with each other in order to expedite the completion of the PHAI project (Article 5.4). C. The Cleanup Agreement also provides that Canada may establish a “Federal Operating Agency” to act on behalf of Canada to fulfill Canada’s obligations pursuant to the Cleanup Agreement. Such an agency was established in 2012 as the Port Hope Area Initiative Management Office, which was initially managed by Atomic Energy of Canada Limited. Subsequently, in November of 2014, the management of the Port Hope Area Initiative Management Office was transferred to CNL. D. To facilitate such communications and cooperation CLARINGTON and CNL wish to ensure that all confidential information exchanged during or in relation to any discussions concerning the PHAI project and other matters provided for in the Cleanup Agreement are not disclosed to or discussed with third parties, without the other party’s prior consent. NOW THEREFORE, in consideration of the premises and the mutual obligations hereinafter described, and intending to be legally bound, the parties agree as follows: 1. Definition Confidentiality Agreement Template Version. 2012-02-14 R0 Page 2 of 5 (a) "Confidential Information" means all or any part of the corporate, strategic, environmental cleanup and construction plans, drawings, specifications and schedules, and other information provided by one party to the other in accordance with Paragraph 2, whether disclosed prior to or after the signing of this Confidentiality Agreement, except that Confidential Information will exclude information that: (i) at the time of its disclosure is generally available in the public domain; or (ii) enters the public domain and becomes generally available at any time after disclosure other than through an act or omission of the Recipient; or (iii) the Recipient can demonstrate by competent evidence was already known to it at the time of its disclosure (except that if portions of such information were not known to it, then these portions will be Confidential Information); or (iv) after its disclosure, is disclosed to the Recipient by a third party which third party has the unrestricted right to make such disclosure to the Recipient; or (v) the Recipient is forced to disclose to the public or a third party by order of a court, governmental or regulatory authority having jurisdiction over the Recipient or pursuant to the application of freedom of information legislation, provided that the Recipient provides the Discloser with prompt notice of any efforts to compel disclosure and reasonably co-operates with the Discloser’s lawful attempts to prevent disclosure or to obtain a protective order; (b) “Discloser” means the party disclosing Confidential Information; and (c) “Recipient” means the party receiving Confidential Information. 2. Disclosure of Confidential Information Confidential Information disclosed in writing or in any other tangible format including computer files must be marked “Confidential Information” or words to that effect. Confidential Information disclosed orally must be identified as Confidential Information at the time of its disclosure. 3. Use of Confidential Information Each party shall only use the other party’s Confidential Information for purposes of discussing the PHAI project. Confidential Information disclosed by a party shall remain the sole and exclusive property of such party. 4. Maintenance of Confidentiality Confidential Information received by a party shall not be disclosed to any individuals other than the directors, officers, employees, agents, contractors and consultants of such party (and in the case of CNL, Atomic Energy of Canada Limited and its directors, officers, employees, agents and consultants) who need access to such Confidential Information for purposes of discussing or carrying out the PHAI project. Each party shall ensure that such directors, officers, employees, agents, contractors and consultants who receive access to Confidential Information are aware of the obligations of confidentiality and non-use Confidentiality Agreement Template Version. 2012-02-14 R0 Page 3 of 5 contained in this Agreement and take all reasonable steps to ensure that the use of such information is on a confidential basis, including having third party agents, contractors and consultants enter into a similar written confidentiality agreement that applies to the PHAI project. The parties shall also maintain in confidence the discussions between them pertaining to the PHAI project. 5. Return of Confidential Information Upon the request of a party, each party will return to the other all copies of Confidential Information provided to or made by it; provided, however, that either party may retain an archival copy of all Confidential Information received by it to document its obligations of nondisclosure and limited use hereunder. Such archival copies shall continue to be treated as Confidential Information. 6. Rights and Damages The Discloser and Recipient both acknowledge that any breach of this Agreement by Recipient, its directors, officers, employees, agents and consultants will be deemed to cause the Discloser irreparable harm for which damages are not an adequate remedy. Accordingly, each of the Discloser and Recipient agrees that in the event of any such breach or threatened breach by one of them, the other party, in addition to other remedies at law or in equity that it may have, shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including without limitation, injunctive relief or specific performance or both. 7. No Warranty The Recipient acknowledges and agrees that neither the Discloser nor its representatives makes any express or implied representation or warranty as to the accuracy or completeness of any Confidential Information provided to the Recipient. Neither Discloser nor its representatives will be liable to the Recipient or its representatives with respect to or resulting from the use (or the results of such use) or misuse of any Confidential Information furnished hereunder or any errors or omissions in such Confidential Information. However, the Discloser will not intentionally provide the Recipient with false or misleading information. 8. Notices Any notices required or permitted under this Agreement shall be in writing and either delivered personally or by courier to a party or sent by facsimile and shall be effective on the day of receipt of the notice if received during normal business hours of the addressee, and if not received during such normal business hours then on the first business day of the addressee after receipt. The addresses of the parties to which all notices shall be forwarded are as follows: to : Municipality of Clarington 40 Temperance Street, Bowmanville, ON L1C 3A6 Attention: Chief Administrative Officer Facsimile: (905) 623-3379 Confidentiality Agreement Template Version. 2012-02-14 R0 Page 4 of 5 to: Canadian Nuclear Laboratories Port Hope Area Initiative Management Office 115 Toronto Road, Port Hope, ON, L1A 3S4 Attention: Director, Project Delivery and Senior Legal Counsel Facsimile: (905) 885-9344 10. Agreement Binding This Agreement is binding upon the parties and their respective subsidiaries, successors and permitted assigns. 11. No Further Obligations This Agreement shall not impose any obligations on either party to enter into any further agreements of any description with the other nor prohibit either party from pursuing, either independently or with any third party, any business opportunities that the parties may discuss, provided that neither party shall disclose the other party’s Confidential Information in any such discussions. 12. Assignment Neither party may assign any of its rights under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld; provided, however, that either party may assign any of its rights hereunder, without such consent, to its parent company, its affiliates, or its bank or other financial institution, and in the case of CNL, to Atomic Energy of Canada Limited. No such assignment shall relieve the assignor from any of its obligations hereunder. 13. Entire Agreement This Agreement constitutes the entire agreement between the parties with respect to Confidential Information. 14. Governing Law This Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of Ontario, without regard to its conflict of laws principles. 15. Severability If any term of the Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining terms hereof shall remain in full force and effect. Each party agrees that this Agreement embodies the entire understanding between the parties and supercedes any and all prior arrangements, whether oral or written, entered into by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. Confidentiality Agreement Template Version. 2012-02-14 R0 Page 5 of 5 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON CANADIAN NUCLEAR LABORATORIES LTD. Per: Per: Adrian Foster, Mayor Bryan Tyers Director, Project Delivery, Port Hope Area Initiative Management Office Per: Per: C. Anne Greentree, Municipal Clerk Craig Hebert General Manager, Port Hope Area Initiative Management Office