M E M O / N O T E D E S E R V I C E

To / Destinataire Mayor and Members of Council File/N° de fichier:

File Number:

From / Expéditeur John Jensen, Director, Rail Implementation

Office

Subject / Objet Ottawa Light Rail Transit (OLRT) Project

Update Date: May 23, 2012

This memo is to provide an update on the OLRT project including information on the property

negotiation process for station entrances and connections to private properties, an amendment to the

procurement process and the next phase of property expropriation. Mayor Watson has asked that a

copy of a general Non-Disclosure Agreement (NDA) used in property negotiations be attached to this

memo for your reference.

In May 2009, City Council stated a goal to secure integrated station entrances and connections with

businesses and landowners adjacent to the OLRT project alignment where desirable for transit users.

Accordingly, Council directed a Request-for-Information to be sent to local businesses and landowners

near the OLRT alignment. As a result negotiations aimed at securing the integration opportunities have

been initiated with six (6) property owners along the tunnel portion of the alignment.

The City is negotiating with several property owners for connections while at the same time

conducting an international competition with three world class teams of international companies, each

developing different and competing proposals to design and construct the OLRT system. Each team

has been charged with taking the City’s preliminary design through to full system design with a set

price they will be held to if successful. As such, each team needs to meet with property owners to

ensure that the connections they design work as proposed and that the price of these elements can be

validated as part of their bids. The Non-Disclosure Agreements (NDAs) protect the integrity of the

procurement process so that these commercially confidential design elements remain absolutely

confidential. This same type of Non-Disclosure Agreement also governs utility companies that receive

information about each team’s approach to the design and construction in order to discuss plans to

construct around or relocate private telecommunications or gas utilities. This must occur to provide

firm information for pricing utilities.

It is essential that the confidentiality of each team’s approach to design and construction be

maintained. This drives competitive tension as each procurement team is given the freedom to develop

innovative solutions without risk of their ideas or planned innovations being shared with rival teams.

In short, confidentiality is essential to protect the integrity of the procurement process. Ensuring that

this confidentiality is respected is one of the reasons that Council directed Infrastructure Ontario to be

our procurement lead and that an independent fairness commissioner is providing independent

oversight.

Council should be aware that there have been no discussions regarding the appropriate location of

stations with any property owners, including Cadillac Fairview. No consideration or concession of any

type has been discussed with any proponent regarding zoning, approvals or planning of station

locations. Discussions have solely focused on securing property and an agreement to integrate station

entrances where it would serve the transit user.

Negotiations with Cadillac Fairview

The Rideau LRT Station was always going to have an integrated entrance into the Rideau Centre. The

original location underneath the Canal connected to the Rideau Centre and the new location

underneath Rideau Street will continue to have a Rideau Centre entrance. The City has been in

discussions with Cadillac Fairview to explore entrance locations both for the original location of

Rideau Station and more recently for the shifted location. This makes good transit sense as the Rideau

Centre and surrounding community is a significant transit destination - the Rideau Centre today is a

major part of the current bus rapid transit network.

Work on the revised location of Rideau Station began in July of last year. Passenger flows and

catchments were examined, utility and construction challenges were identified, and discussions were

undertaken with the competing proponents. Council’s direction to seek ways to reduce station depth at

the Rideau Station was pursued fully and all issues were explored before the decision to revise the

station location was made. Discussions with Cadillac Fairview about an entrance option further east on

Rideau occurred only after it was determined that the shift was desirable from a transit service

perspective. As part of determining if it was feasible to move the station into the Rideau right-of-way

it was necessary to examine utility and constructability issues as well as any implications for

maintaining the connection to the Rideau Centre.

Negotiations will continue on all possible building connections to the new OLRT system as instructed

by Council. Final plans and agreements enabling any of these possible building connections will only

be possible once a final proponent is selected as each will have identified their own solutions for

delivering the project.

The precise location of the Rideau Station platform and its entrances will be determined once the City

has detailed designs and has selected a successful team in the ongoing competition. As per your

direction, the details of all property negotiations and agreements will be reported to Council once all

OLRT property has been acquired.

Next Phase of Property Expropriation

Over the next two weeks the City will be sending out notices of expropriation for the next group of

affected properties along the OLRT alignment.

Throughout this process the City will continue to undertake negotiations with impacted landowners

and tenants in a parallel effort to reach settlements that are fair to all parties. As per Council direction,

details on these agreements will be reported to Council once all property for the OLRT project has

been secured.

Procurement Update

In order to ensure all efficiencies can be realized through the full integration of the two projects, and at

the request of the proponents, the teams have been provided with an additional six weeks to prepare

their final submissions, which are due September 10, 2012.

The time line for final approval by Council in late 2012 remains unchanged with construction slated to

start in early 2013 and full system operation planned for 2018.

Nancy Schepers and I are available to meet at your discretion to provide any further details you may

require.

John Jensen

Director

Rail Implementation Office

Enclosures (1)

cc: Nancy Schepers, Deputy City Manager, Planning and Infrastructure

CONFIDENTIAL DISCLOSURE AGREEMENT

THIS AGREEMENT is made this __________ day of __________, 201__

BETWEEN

CITY OF OTTAWA having as its primary mailing address 110 Laurier Avenue West, Ottawa,

Ontario, K1P 1J1 (the “City”);

AND

_________________________________ whose principal place of business is ________

__________________________(the “Company”).

WHEREAS

A. The parties wish to disclose to each other Confidential Information for the Purpose.

B. The parties wish to regulate how the Confidential Information is to be treated and used while in

the possession or control of the Receiving Party so as to protect the interests of the Disclosing Party.

IN CONSIDERATION of the mutual covenants set forth herein and for other good and valuable

consideration (the receipt and sufficiency of which is hereby confirmed), the parties hereby covenant

and agree as follows:

1. Definitions. The following words and phrases wherever they are used in this Agreement shall

have the meanings ascribed to them below:

a. “Applicable Laws” means any domestic or foreign statute, law (including common and civil

law), code, ordinance, rule, regulation, restriction or by-law (zoning or otherwise); any

judgement, order, writ, injunction, decision, ruling, decree or award; any regulatory policy,

practice or guideline having the force of law; any published administrative position having the

force of law; or any franchises, licences, qualifications, authorizations, consents, certificates,

registrations, exemptions, waivers, filings, grants, notifications, privileges, rights, orders,

judgments, rulings, directives, permits and other approvals, all of any governmental authority,

binding on or affecting the person referred to in the context in which the term is used or binding

on or affecting the property of that person.

b. “Confidential Information” comprises any and all information which is supplied by or on

behalf of the Disclosing Party to the Receiving Party (whether before or after the date of this

Agreement), either in writing, orally or in any other form, directly or indirectly from or pursuant

to discussions with the Disclosing Party or which is obtained through observations made by the

Receiving Party. “Confidential Information” also includes all analyses, compilations, studies

and other documents whether prepared by or on behalf of a party which contain or otherwise

reflect or are derived from such information;

c. “Disclosing Party” means the party hereto which supplies Confidential Information;

d. “Proper Use” means use of Confidential Information wholly necessarily and exclusively for the

Purpose.

e. “Purpose” means discussions relating to evaluating the feasibility of __________________

_________________________________________________________________________

f. “Receiving Party” means the party hereto to which Confidential Information is supplied.

2. Confidentiality. Each party, in respect of Confidential Information for which it is the receiving

Party, shall:

a. hold in confidence any Confidential Information and use such Confidential Information

only for the Proper Use;

b. take all reasonable measures to maintain the confidentiality of the Confidential

Information;

c. keep such Confidential Information and copies of it separate from its own Confidential

Information and marked as confidential and proprietary to the Disclosing Party;

d. not disclose to any person or publish Confidential Information or any part thereof except

with the express prior written consent of the Disclosing Party; and

e. not disclose to any person the fact that Confidential Information has been exchanged

between the parties or that discussions in respect of the Purpose are taking place between

the parties.

3. Advisors/Professionals. The Receiving Party shall ensure, in respect of its officers, employees,

contractors, consultants, agents and advisors, that:

a. the Disclosing Party’s Confidential Information is only disclosed to such of them who

strictly need to know it for the Proper Use;

b. they are aware of the confidential nature of the Disclosing Party’s Confidential

Information and of the obligations under this Agreement and are bound under equally

restrictive terms; and

c. it accepts responsibility for each of them as if their activities in relation to the

Confidential Information were carried out by the Receiving Party itself.

4. Exceptions. The obligation to maintain the confidentiality of Confidential Information does not

apply to Confidential Information:

a. which the Disclosing Party thereof confirms in writing is not required to be treated as

Confidential Information;

b. which is or comes into the public domain otherwise than through any disclosure

prohibited by this Agreement;

c. to the extent any person is required to disclose such Confidential Information by

Applicable Laws, including the Municipal Freedom of Information and Protection of

Privacy Act (Ontario);

d. is independently developed without use of the Disclosing Party's Confidential

Information, as demonstrated by the Receiving Party’s written records,

e. is rightfully received from a person without obligation of confidence or is disclosed

without similar restrictions to a person by the Disclosing Party owning the Confidential

Information;

f. to the extent consistent with any City policy, procedure, resolution or by-law; or

g. as the City may require for the exercise or enforcement of its rights under this

Agreement, or following the termination of this Agreement (provided that the City shall

take all reasonable steps to limit such disclosure and any subsequent disclosure of such

Confidential Information).

The burden of proving that any of the foregoing exclusions apply to a disclosure of Confidential

Information is on the Receiving Party.

5. Public Announcements. Unless otherwise required by any Applicable Laws (but only to that

extent), the Company will not make or permit to be made any public announcement or disclosure

whether for publication in the press, radio, television or any other medium of the City’s Confidential

Information or any matters relating thereto.

6. MFIPPA. The Company acknowledges that information provided to the City is subject to

disclosure under the Municipal Freedom of Information and Protection of Privacy Act (Ontario) and

that any confidential, proprietary, commercial, scientific or similar information, the disclosure of which

would reasonably cause the Company injury, should be identified as such when provided to the City.

In respect of such information, the Company shall also provide the City with the rationale setting forth

reasons why such information should not be released under this legislation or successor legislation.

7. Ownership. Any Confidential Information disclosed hereunder shall remain the sole property of

the Disclosing Party thereof and must only be used by the Receiving Party for the Proper Use. Any

copy of the Disclosing Party’s Confidential Information made by the Receiving Party, or any

documents derived from the Confidential Information, including but not limited to, any notes,

drawings, recordings of demonstrations, or notes of oral disclosures shall become the property of the

Disclosing Party immediately upon creation and will be promptly returned or destroyed in accordance

with Section 10.

8. Further Agreements. Neither party shall be obliged by this Agreement to enter into any further

agreement. Nothing contained herein shall be construed as granting the Receiving Party any right in or

licence to use for any other purpose any intellectual property rights, or any invention, discovery or

improvement made or acquired, before or after the date of this Agreement relating to the Confidential

Information.

9. Term. The Receiving Party's obligation of confidence and limitations upon use of Disclosing

Party’s Confidential Information received hereunder shall expire five (5) years from the date the

discussions relating to the Purpose cease, as shall be evidenced by written notice thereof given by one

party to the other, or such prior date as is consented to in writing by the parties. The obligations of

this Section 9 shall survive any termination of this Agreement.

10. Return/Destroy. At any time if so requested by the Disclosing Party, the Receiving Party will

promptly return or destroy as it may prefer, all of the Confidential Information received hereunder and

all copies thereof except one copy which may be retained by the Receiving Party’s legal counsel for the

purpose of determining continuing obligations hereunder. Within the same timeframe, any internal

documents incorporating any part of the Confidential Information shall be destroyed. If so requested

by the Disclosing Party, the Receiving Party shall supply a statutory declaration that the requirements

of this Section have been complied with. The obligations of this Section 10 shall survive any

termination of this Agreement.

11. Representations. Each party represents to the other that it has the full authority and right to

enter into this Agreement and to disclose its Confidential Information and that such disclosure will not

violate the rights of any third party. In addition each party acknowledges that its Confidential

Information provided hereunder in no way constitutes or gives rise to or will be deemed to constitute or

give rise to any representation or warranty as to the accuracy or completeness thereof or as to the non-

occurrence of any changes in circumstances surrounding the subject matter of this Agreement since the

dates as of which the Confidential Information is provided.

12. Injunctive Relief. Each Receiving Party hereby acknowledges that unauthorised disclosure or

use of the Disclosing Party’s Confidential Information could cause irreparable harm and significant

injury to the Disclosing Party which may be unascertainable. Accordingly each Receiving Party agrees

that the Disclosing Party shall have the right to seek and obtain immediate injunctive relief from any

breach of this Agreement in addition to any other rights or remedies it may have.

13. Miscellaneous

a. No Waiver. The failure to exercise or delay in exercising a right or remedy under this

Agreement shall not constitute a waiver of that right or remedy or a waiver of any other

rights or remedies.

b. Assignment. None of the rights or obligations contained in this Agreement may be

assigned or transferred without the prior written consent of the other party.

c. Entire Agreement. This Agreement sets forth the entire agreement and understanding

between the parties as to the subject matter hereof and supersedes all previous

agreements between them relating to the subject matter of the Agreement.

d. Successors and Assigns. Subject to the foregoing, this Agreement shall be binding upon

the Parties, their respective successors and permitted assigns.

e. Amendment. None of the terms of this Agreement shall be amended or modified except

in writing signed by both parties.

f. Reliance. Each party acknowledges that, in entering into this Agreement, it has not

relied on any representation, warranty, collateral contract or other assurance, except

those set out in this Agreement and waives all rights and remedies which, but for this

clause, might otherwise be available to it in respect of any such representation, warranty,

collateral contract or other assurance, provided that nothing in this Section 13.f shall

limit or exclude any liability for fraud.

g. Law. This Agreement shall be construed and enforced in accordance with the laws of

the Province of Ontario and the laws of Canada.

h. Counterparts. This Agreement may be executed in any number of counterparts, each of

which shall be deemed to be an original and all of which taken together shall constitute

one and the same agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their

duly authorized representatives as of the date first written above.

CITY OF OTTAWA ____________________________________

Per: ______________________________ Per: ______________________________

Name: Name:

Title: Title:

Per: ______________________________ Per: ______________________________

Name: Name:

Title: Title:

I/We have authority to bind the City. I/We have authority to bind the Company.