A. The Counterparty intends to bid on the opportunity to enter into an agreement with Metrolinx to redevelop the property municipally known as 433 Front Street West (the “Property”), which Property is located at the future Spadina-Front GO Station (the “Station”) along the Union Station Rail Corridor (the “Project”).
On the website www.433front.com, operated on behalf of Metrolinx by N. Barry Lyon Consultants Ltd. (“NBLC”), Confidential Information (defined below) owned or controlled by Metrolinx will be made available to bidders on a confidential basis to assist them in deciding whether to bid on the opportunity to enter into an agreement to redevelop the Property.
B. Each Party may disclose or provide access to Confidential Information to the other Party to evaluate the feasibility, and to discuss the terms, of the Project and redevelopment of the Property (the “Purpose”).
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Definitions.
In this Agreement, the following terms have the following meanings:
“Confidential Information” has the meaning set out in Section 2;
“Disclosing Party” means the Party that discloses Confidential Information pursuant to this Agreement; and
“including” means “including, without limitation”
“Receiving Party” means the Party that receives Confidential Information pursuant to this Agreement.
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Confidential Information. “Confidential Information” means all information which is confidential in nature or that is treated as being confidential by the Disclosing Party, and which is directly or indirectly provided, disclosed, furnished, or made available to (orally, in writing, electronically, or by any other means) or comes into the knowledge, possession or control of Receiving Party, whether by the Disclosing Party or on the Disclosing Party’s behalf, and whether before or after the Effective Date, including, but not limited to, design drawings and plans related to the Project, any output specifications that relate or pertain to the Project, and any other information that relates or pertains to the Project, regardless of whether or not the information is specifically identified or marked as confidential or proprietary, including any copies or reproductions of it. This Agreement does not apply to Confidential Information which:
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(i) becomes generally available to the public through no fault of the Receiving Party;
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(ii) is already known to or in the possession of the Receiving Party at the time of its disclosure by the Disclosing Party as evidenced by the Receiving Party’s records;
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(iii) was independently developed by the Receiving Party prior to receipt from the Disclosing Party as documented by the Receiving Party’s written records; or
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(iv) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party that is not under other obligations of confidence.
Nothing herein shall require the Disclosing Party to disclose any of its information to the Receiving Party.
The Disclosing Party shall retain all right, title, and interest including all intellectual property rights, in and to the Confidential Information. Neither the execution of this Agreement nor the furnishing of any Confidential Information shall be construed as granting to the Receiving Party, either by implication or otherwise, any interest, title, licence , or other right in or with respect to the Confidential Information.
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Receiving Party’s Obligations. The Receiving Party agrees that the Confidential Information is or is considered to be confidential and proprietary to the Disclosing Party and will be held by the Receiving Party in confidence. The Receiving Party:
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(a) shall keep the Confidential Information confidential and secure using the same means it uses to protect its own confidential information;
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(b) shall not disclose, reveal, publish, disseminate, or provide access to the Confidential Information to any person other than those of its directors, officers, employees, agents, consultants, sub-consultants, counsel, professional advisors, contractors, subcontractors, affiliates, and debt or equity financing sources (collectively, the “Representatives”) with a need to know such Confidential Information in connection with the Purpose provided that before the Receiving Party discloses the Confidential Information to a Representative:
(i) the Receiving Party shall inform such Representative of the confidential and proprietary nature of the Confidential Information,
(ii) the Receiving Party shall only disclose to those Representatives who shall either have entered into a confidentiality agreement with the Disclosing Party on the terms hereof or be otherwise subject to obligations of confidentiality substantially similar to those contained in this Agreement,
(iii) where the Counterparty is the Receiving Party, the Counterparty shall confirm whether any Representative is or has been a member of a pre-qualified proponent (“Proponent”) team responding to the request for proposals (“RFP”) for any Metrolinx construction project prior to disclosing any Confidential Information whatsoever to that Representative, and if the Representative is, intends to become, or has been a member of a Proponent team responding to the RFP for any Metrolinx construction project, the Counterparty shall not disclose any Confidential Information to that Representative without the express written consent of Metrolinx, notwithstanding any other provision of this Agreement;
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(c) upon request shall provide the Disclosing Party the contact details of the persons and entities who are allowed access to the Confidential Information;
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(d) shall take all reasonable steps required to prevent any unauthorized reproduction, use, disclosure, publication, dissemination of, or access to the Confidential Information and shall immediately notify the Disclosing Party if the Receiving Party becomes aware of same;
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(e) shall satisfy and comply with all applicable freedom of information or privacy legislation and any other statute or regulation applicable to the Confidential Information;
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(f) shall use the Confidential Information only in connection with the Purpose;
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(g) if the Counterparty is the Receiving Party and has any questions or comments about any aspect of the design or other component of the Property or Project, shall contact NBLC, who is acting on behalf of Metrolinx with respect to this Property and Project, unless Metrolinx notifies otherwise in writing; and
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(h) at the request of the Disclosing Party, shall, as directed by the Disclosing Party, return or destroy all Confidential Information, including all extracts or copies of it in whatever form, and provide the Disclosing Party with a certificate signed by an officer of the Receiving Party confirming such return or destruction. To the extent that data or electronic records containing Confidential Information are retained by the Receiving Party as required under applicable laws or by the rules or regulations of an applicable regulatory body, those data or records, to the extent not otherwise permanently deleted or overwritten, will not be accessed except for the purposes enumerated above.
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Legally Required Disclosure. If the Receiving Party is required by law, including judicial or administrative process or freedom of information legislation, to disclose any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice to enable the Disclosing Party to seek a protective order and shall cooperate with the Disclosing Party in obtaining any such order. If such order is not obtained and the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party shall disclose only such portions of the Confidential Information to the person compelling disclosure as is required by law and, in connection with such compelled disclosure, Receiving Party shall use its reasonable efforts to obtain from the person to whom disclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is disclosed. Any such required disclosure shall not, in and of itself, change the status of the disclosed information as Confidential Information under the terms of this Agreement.
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Term. This Agreement will be in effect for two years from the date it was signed by the Counterparty (“Execution Date”). The provisions of Section 3 and 4, and any other provisions which by their nature should survive the expiration or termination of this Agreement, shall survive for seven (7) years from the Execution Date. Either Party may terminate this Agreement effective immediately on written notice to the other Party.
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Breach. The Receiving Party acknowledges that a breach by it of any provision of this Agreement may result in immediate and irreparable harm to the Disclosing Party and that monetary damages may not provide a sufficient remedy for any breach, and agrees that in the event of such breach, the Disclosing Party shall, in addition to any other relief, be entitled to seek equitable relief including, without limitation, relief by way of injunction, and such other relief that any court of competent jurisdiction deems appropriate. Each Counterparty acknowledges and agrees that it is jointly and severally liable to Metrolinx for all obligations and liabilities of the Counterparties (or any one or more of them) under this Agreement.
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Additional Protections. The Receiving Party acknowledges that Disclosing Party may require the Receiving Party to provide additional confidentiality covenants satisfactory to the Disclosing Party before providing certain Confidential Information to the Disclosing Party.
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No Publicity. Neither Party shall make any public announcement or press release regarding this Agreement, the Property, Project, or Purpose, any aspect or component of the Confidential Information, or any relationship between the Parties without the other Party’s prior written consent.
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Governing Law. This Agreement shall be governed and construed in accordance with the laws of Ontario and the applicable federal laws of Canada. The Parties consent to the exclusive jurisdiction of the Ontario courts for any dispute arising out of this Agreement.
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Entire Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof.
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Assignment. Neither Party may assign this Agreement or any interests herein without the other Party’s express prior written consent, which shall not be unreasonably withheld.
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Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
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No Implied Waiver. A Party’s failure to insist in any one or more instances upon strict performance by another party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
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Waiver of Liability. All Confidential Information is provided “as is” without warranty, representation or guarantee of any kind as to accuracy, completeness, fitness for use, purpose, non-infringement of third-party rights or any other warranty or representation, express or implied. The Disclosing Party shall not be liable for the Confidential Information or any errors that may be contained in or omissions from the Confidential Information. The Disclosing Party shall not be responsible for any damage, loss, expense or claim of loss arising from or related to use of or reliance by the Receiving Party or any Representative on the Confidential Information.
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Amendment. This Agreement may only be amended, modified, or supplemented by a written agreement signed by the Parties.