WHEREAS, The Corporation of the City of Kingston (the “Vendor”) is considering the possibility of transferring the approximately 1.76 acre development opportunity referred to as Block 4 of the North Block District (the “Property”);
WHEREAS, on the website www.kingstonblock4.ca, information is being made available on a confidential basis to assist prospective bidders in deciding whether they wish to bid on the possible future acquisition of the Property through a Request for Expression of Interest (“RFEOI”) process;
WHEREAS, the undersigned Potential Proponent is interested in seriously evaluating the possibility of acquiring the Property and may submit to the Vendor an Expression of Interest (“EOI”) submission;
WHEREAS, in order for the Potential Proponent to evaluate the feasibility of acquiring the Property, the Vendor is prepared, from time to time, to provide or disclose to the Potential Proponent certain information and materials that the Vendor considers proprietary and confidential, subject to the terms and conditions provided herein;
AND WHEREAS, the Potential Proponent is agreeable to handling and treating Confidential Information (defined below) provided to, or obtained by, the Potential Proponent Parties (defined below), on the terms and conditions provided herein.
NOW THEREFORE, in consideration of the Vendor providing certain access to and information in respect of the Property and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Potential Proponent hereby covenants, undertakes, declares, and agrees as follows:
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The recitals set out above are integral to this Agreement and contain important acknowledgements by the Potential Proponent, and are hereby incorporated into and made a part of this Agreement.
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The Potential Proponent, on its own behalf and on behalf of its agents, employees, directors, officers, consultants and any person for whom the Potential Proponent is responsible at law (collectively the “Potential Proponent Parties”), agrees and undertakes to keep in confidence any and all financial or other information, plans, reports and analysis obtained from the Vendor or its respective agents and consultants with respect to the Property and all documents and information related thereto, whether disclosed orally, in writing, electronically, or in any other form (the “Confidential Information”) and the Potential Proponent shall not use any Confidential Information for any purpose other than preparing an EOI for the potential acquisition of the Property by the Potential Proponent. Without limiting the generality of the foregoing, “Confidential Information” includes any and all environmental information, assessments, reports, studies, records and/or tests, third party records, facts or opinions connected to the Property.
Nothing herein contained shall restrict or prohibit the Potential Proponent from disclosing the Confidential Information to its professional advisors and lenders and their respective professional advisors (only if required), provided that upon request of the Vendor, the Potential Proponent shall notify the Vendor of the names of such advisors or lenders, as the case may be, and in any event they agree in writing to be bound to the same extent as the Potential Proponent by this Confidentiality Agreement prior to receiving any Confidential Information.
Upon notice from the Vendor, the Potential Proponent shall forthwith return to the Vendor or confirm destruction of all Confidential Information and all copies thereof made and/or distributed by the Potential Proponent together with all analysis or summaries which may contain the Confidential Information, or any portion thereof. Notwithstanding the foregoing, the Potential Proponent’s obligations set out in this Agreement shall survive any termination or expiration of this Agreement for any reason. All Confidential Information received during the term of this Agreement shall be subject to all of the confidentiality obligations set forth herein.
For the purposes of this Confidentiality Agreement, Confidential Information shall not include: (i) public information or information in the public domain at the time such information is obtained by the Potential Proponent; (ii) information which becomes public through no fault or act of the Potential Proponent Parties; (iii) information required to be disclosed by law, but only to the extent of such required disclosure and provided that the Vendor is first given notice of such required disclosure in accordance with this section; and (iv) information received in good faith from a third party lawfully in possession of the information and not in breach of any confidentiality obligations. In the event that Confidential Information is required to be disclosed by law, the Potential Proponent shall provide the Vendor with prompt prior written notice of its obligation to disclose so that the Vendor may seek a protective order or other appropriate remedy concerning the disclosure of its Confidential Information and/or waive compliance with the confidentiality provisions of this Agreement. The Potential Proponent shall also take reasonable steps, to the extent permitted by law, to remove from the Confidential Information that is required to be disclosed, any information that is commercially sensitive to the Vendor.
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The Potential Proponent shall indemnify the Vendor and hold harmless the Vendor from any and all costs, damages and expenses (including legal fees and disbursements on a full indemnity basis) which may arise from the unauthorized disclosure or use of the Confidential Information. The Potential Proponent acknowledges that if this Confidentiality Agreement is breached the Vendor would be irreparably harmed and cannot be made whole by monetary damages alone. Accordingly, the Vendor, in addition to any other remedy to which it may be entitled by law or in equity, shall be entitled to seek an injunction to prevent breaches of this Confidentiality Agreement, and an order compelling specific performance of this Confidentiality Agreement. The Potential Proponent shall reimburse the Vendor for all costs, damages and expenses (including legal fees and disbursements on a full indemnity basis basis), incurred by the Vendor if it enforces the obligations of the Potential Proponent and the Potential Proponent Parties hereunder.
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The Potential Proponent agrees that the supplying of the Confidential Information by the Vendor is provided for information purposes only on a “without prejudice” basis and the Vendor admits no liability as a result of supplying the Confidential Information or any information contained therein. The Vendor does not warrant or certify that the information contained in the Confidential Information is true and correct and the Vendor is not liable to the Potential Proponent Parties in any way for any error, omission or inaccuracy contained in the Confidential Information. The Potential Proponent acknowledges and agrees that it has relied and will continue to rely entirely and solely on its own investigations and information with respect to the Property.
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The Potential Proponent, on behalf of itself and all other Potential Proponent Parties, hereby covenants and undertakes that, the Potential Proponent, immediately upon discovering that the terms of this Agreement have been breached by the Potential Proponent or any Potential Proponent Parties, shall:
- notify the Vendor in writing of such breach; and
- cooperate fully in any investigation by the Vendor of such breach; and
- take all reasonable steps required by the Vendor to mitigate the effects of any such breach.
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To the extent permitted by law, in the event that the Vendor brings an action against the Potential Proponent to enforce the terms of this Agreement, the Potential Proponent shall reimburse the Vendor for all of the Vendor's legal fees and disbursements incurred in such action on a full indemnity basis.
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The Potential Proponent agrees that it shall not claim to have any rights, title or ownership in the Confidential Information or any derivatives, discoveries or inventions based on or derived from the Confidential Information, and that rights, title and ownership in the Confidential Information or any derivatives, discoveries or inventions based on or derived from the Confidential Information shall, as between the parties, rest with the Vendor.
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The Potential Proponent’s obligations contained in this Agreement shall continue for the shorter of: (i) perpetually; and (ii) the maximum duration permitted by applicable statute and/or common law.
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This Agreement comprises the full and entire undertaking of the Potential Proponent concerning the Confidential Information. This Agreement supersedes any prior understandings or agreements, regardless of form, with respect to the Confidential Information. This Agreement may be executed in any number of counterparts. Each executed counterpart shall be deemed to be an original. All executed counterparts taken together shall constitute one agreement.
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This Agreement may be signed electronically by checking the box below and submitting it on behalf of the Potential Proponent, or may be downloaded and/or printed and transmitted by facsimile or by .pdf copy or email or such similar device and the reproduction of signatures by facsimile or .pdf or email or such similar device will be treated as binding as if originals and each party hereto undertakes to provide each and every other party hereto with a copy of the Agreement bearing original signatures forthwith upon demand.
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This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and this Agreement shall be treated, in all material respects, as an Ontario contract. No amendment of this Agreement shall be binding unless executed in writing by the Vendor. No failure or delay by the Vendor in exercising any right, power or privilege hereunder shall operate as a waiver of such right, power or privilege. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision hereof.
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In the event that any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the maximum extent possible.
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The Potential Proponent has either obtained independent legal advice prior to executing this Confidentiality Agreement or by its own free act decided not to obtain independent legal advice with respect to this Confidentiality Agreement.