HomeMy WebLinkAboutResolution 6113 . �
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O ;� O CITY of ORONO
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+-3 '� y�=,�'; � RESOLUTION OF THE CITY COUNCIL
�� � :.� Gtiti No. 6 1 1 3
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A RESOLUTION AUTHORIZING THE CITY OF ORONO
TO EXTEND AN AGREEMENT FOR THE USE OF
HENNEPIN COUNTY'S ELECTRONIC PROPRIETARY DATA BASE
WHEREAS,the County has developed an electronic proprietary geographical
information data base which was designed using an automated mapping facility software product,
which proprietary geographical digitized data base is hereinafter referred to as "Electronic
Proprietary Data Base" (EPDB) and which is described in the Hennepin County Conditional Use
License Agreement attached hereto as Exhibit A and hereby made a part hereof; and
WHEREAS,the City of Orono desires to use the County's EPDB, and the City
has retained the consulting engineering firm of Bolton& Menk, Inc. to provide services to the
City, and the City and Bolton& Menk, Inc. desire to use the County's EPDB in the course of
conducting the City's business; and
WHEREAS,the City of Orono desires to use the County's EPDB, and the City
will continue to use services provided by the engineering firm of Stantec (formerly Bonestroo)
for City projects, and the City and Stantec (formerly Bonestroo) desire to use the County's EPDB
in the course of conducting the City's business; and
WHEREAS,the County intends that any additions and modifications to the
EPDB relating to the County remain wholly compatible with the County's EPDB for the period
of the copyright and information added to the data base by either the County or the City shall be
made available to either party; and
WHEREAS, in acknowledgment of the Entity's above stated purpose,the County
is agreeable to provide to the City and Bolton&Menk, Inc. and Stantec (formerly Bonestroo)
access to the EPDB described in Exhibit A; and
WHEREAS parties agree that the execution of this Agreement is necessary in
order to adequately protect said EPDB; and
WHEREAS on July 12, 1999 the City Council approved Resolution No.4321
authorizing execution of the Hennepin County EPDB Conditional Use License Agreement; and
NOW, THEREFORE,be it resolved that the City Council authorizes extension
of the Hennepin County EPDB Conditional Use License Agreement through December 31, 2012.
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O ��� O CITY of ORONO
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�-3 =� �+ RESOLUTION OF THE CITY COUNCIL
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� � No. 6113
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Adopted by the City Council of the City of Orono this 13th day of February, 2012.
ATTEST:
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Linda S. Vee, City Clerk Lili Tod McMillan, Mayor
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Exhibit A
Agreement No. A18439
HENNEPIN COUNTY
CONDITI(3NAL USE LTCENSE AGREEMENT
THIS AGREEMENT,made by and between the COUNTY OF HENNEPIN,Taxpayer
Services Department,a body politic and corporate under the laws of the State of Minnesota,
hereinafter referred to as the"County",and the City of Orono,hereinafter referred to as the
"Entity". For purposes of this Agreement,the address of the County is A703 Government
Center,Minneapolis,Minnesota 55487-0073 and the address of Entity is 2750 Kelley Parlcway,
Crystal Bay,Minnesota 55323. �
WITNESSETH
WHEREAS,the County has developed electronic forms of certain data bases and an
electranic proprietary geographical digitized data base hereinafter referred to as"EPDB";and
WHEREAS,the Entaty desires to use the County's EPDB in the course of conducting#he
Entity's business; and
WHEREAS,in acknowledgment of the Entity's above-sta.ted purpose,the Couniy is
agreeable to provide to the Entity the EPDB, and
VUHEREAS,the parties agree that the execution of this Agreement is necessary in order
to adequately protect said EPDB; and
�NHEREAS,the County exclusively owns the EDPB which i�the subject ofthis
Agreement and has the authoriry and legal right to grant Entity a license to have and use the
EPDB as provided in tlus Agreement;and
WHEREAS,the EPDB is trade secret or confidential information under the Minnesota
Gavemment Data Practices Act and is governed by Minnesota Statutes sec�ions 375.86 and
13.03 as well as other applicable state and federal law.
NOW T�-IEREFORE,in consideration of the premises,as well as the obligations herein
made and undertaken,the parties hereto,intending to be legally bound,hereby agree as follows:
Form 1 (10/98)
Sectionl � � 1 3
SCOPE OF AGREEMENT
1.1 This License Agreement shall apply to the EPDB,which Hennepin County will provide
to Entity,after a specific request has been made to County.
Section 2
GRANT OF LIMTTED LICENSE
2.1 The County hereby grants the EntiTy a non-exclusive,nontransferable and nonassignable
limited use license to use the EPDB wbich includes self developed computer softwaxe
under Minn. Stat. § 375.86. Said license shall commence on the date of approval of this
Agreement by the County and shall extend throughout the term of the Agreement unless
terminated sooner,in accordance with the provisions hereof.
Section 3
ACKNOWLEDGMENT OF PROPRIETARY INFORMATION
RESERVATION OF TITLE
3.1 The Entity acknawledges and agrees that the EPDB is the exclusive property of the
County,including,but not limited to,any and all indexes,and includes commercially
valuable information which reflect the efforts of sldlled development experts and required
the investment of considerable amounts of time and money,and t11at the County has
treated the EPDB as trade secret and confidential information,which County entrusts to
the Entity in confidence ta use in the conduct of the Entity's business. The Entity fiarther
acknowledges and agrees the EPDB is a creative selection,coordination,arrangement and
method of arrangement of data which is identified as being subject to copyright
protection; is self-developed computer soflware under Minn. Stat. § 375.86 and is an
entire or substantial and discrete portion of a pattern, compilation,method,technique,
proccss,cla.ta base or system developed with significan#expendiiure of funds by County
under Minn. Sta#. § 13.03. The Entity agrees that the County owns and reserves all
rights,protection and benefits afforded under federal copyright law in all EPDB fiunished
to the Entity as unpublished works,as well as all rights,protsction and benefits afforded
under any other law relating to confidential and/or trade secret information respecting
said EPDB,and that the Entity will abide by all relevant la.ws,rules,regulations and
decisions which afford protection to the County for its conf'idential and trade secret
information and said copyright. This Agreement does not affeet any transfer of title in or
to any EPDB of the County. The En�ity acknowledges that it is granted only a limited
right of use of such EPDB,wluch right is not coupled with an interest,and the Entity
shall not assert nor cause or cooperate with others to assert any right,title,or interest in
any EPDB of the County.
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Section 4
PROTECTION UF PROPRIETARY INFORMATION
4.1 Obligations of Con�identiality,Limitations of Use. The Entity shall neither disclose,
furnish, seil,resell,transfer,duplicate,reproduce nor disseminate,in whole or in part,the
EPDB of the County and its unique design,arrangement or method of arrangement in its
electronic form furnished to the Entity to(1) any other person,firm,entity,organization,
or subsidiary,except as expressly authorized hereunder; or(2) any employee of the Entity
who does not need to obta.in access thereto in connection wit31 the Entity's exercise af its
rights under this Agreement. The Entity may have and use the EPDB on a corporate-wide
basis and shall have the rights to use the EPDB on a limited number of sites,provideci the
equipment on which the EPDB is maintained supports only equipment operated by the
Entity and the EPDB is used only for the conduct of the Entity's own internal business by
Entiry employees. All employees having access to the EPDB shall be informed of the
requirements contained in Section 4 herein. The Entity shall not otherwise copy or
reproduce any EPDB of the County. Under no circumstances may the entiiy disclose or
disseminate any EPDB to any other public or private entity. The obligations of the Entity
to protect confidentiality which are established by this Agreement apply to the EPDB
itself and not ta any graphic representation or products produced by the Entity while
Using the EPDB. Any authorized consultants, contxactors or agents of Entity must
properly execute and file a separate EPDB Conditional Use License Agreement with
Hennepin CounTy.
The Entity expressly agrees to use the County's EPDB in the ordinary course of its
business and all such use shall bear a notice of copyright by Hennepin County.
4.2 Securc Handling. The Entity shali require that all EPDB be kept in a secure location at
2750 Kelley Parkway,Crystal Bay,MN 55323 and m.aintained in a manner so as to
reasonably preclude unauthorized persons from having ac.cess thereto. The Entity shall
devote its reasonable efforts to ensure that all persons afforded access to EPDB protect
same against unauthorized use,dissemination or disclosure. Entity agrees it will not
lmowingly or negligen�ly allow its employees, agents or independent contractars to copy,
sell,disclose or otherwise make the EPDB available to others. Entity agrees to
immediately notify the County by telephone and in writing if Entity becomes aware of
• any unauthorized duplication,sale or other disclosure. Entity further agrees to prevent
unauthorized disclosure by taking appropriate security measures including,but not
lirnited to,providing physical security for copies of the EPDB and taking all steps Entity
takes to protect information,data or other tangible and intangible property of its own that
Entity regards as proprietary, confidential or nonpublic. Except for off-site backug,the
Entity shall not remove or cause or allow to be removed from the Entity's place of
business or the place of business of any EPDB or any copy thereof without the prior
wrttten consent of the County,which consent shall not be unreasonably withheld.
4.3 Assistance of the Entity. At the request of the County and expense of the Entity,the
Entity shall use good faith and reasonable efforts to assist the County in identifying any
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use, copying,or disclosure of any EPDB by any current or former Entity personnel--or
anyone else who may have come in possession of said EPDB while the same was in the
Entity's possession—in any manner that is contrary to the provisions of this Agreement
so long as the County shall have provided the Entity with information reasonably
justifying the conclusion of the County that such cantrary use may have occurred.
4.4 Survival of Confidentialily Obligations. The Entity's obligations respecting
confidentiality of the EPDB shail survive termination of this Agreement for any reason
and shall remain in effect for as long as the Entity continues to possess or control any
BPDB furnished by the County. In addition,the County shall r�main entitled to enforce
its copyright and propriety interes�s in all EPDB.
Section 5
TERM,TERM.[NATION
, 5.1 The Entity and the COUNTY agree that this Agreement is in effect during the period
commencing January 1, 1999 and terminating December 31, 1999. This Agreement shall
commence from the date hereof,unless sooner terminated by either party with cause upon
three(3)calendar days' written notice to the other. The expira.tian or termination of this
Agreement shall automatically and without further action by the Couniy terminate and
extinguish the Iicense. In the event of a.ny such expiration or termination,the County
sha11 have the right ta take immediate�possession of said EPDB,and all copies thereof
wherever loca.ted,and without demand or notice. Withi.n five(5)days after expiration or
termination of this Agreement,the Entity shall return the EPDB and all copies thereof to
the Couniy, ar upon request by the County,the Entity shall destroy all of the same and all
copies thereof and certify in writing to the County that the same has been destroyed.
5.1.1 It is agreed that any right or remedy provided for herein shall not be considered as tlxe
exclusive right or remedy but shall be considered to be in addition to any other right or
remedy hereunder or allowed by law, equity or statute.
5.1.2 The County's fa.ilure to insist upon strict performance of any covenant,agreement or
stipula�ion of the Agreement,or to exercise any right herein contained shall not be a
waiver or relinquishment of such covenant,agreement,stipulation or right, unless the
County stipulates thereto in writing. Any such written consent shali not constitute a
waiver or relinquishment of such covenant,agreement,stipulatian or right.
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Section 6
INJUNCTIVE RELIEF
6.1 The Entity acknowledges and agrees that unauthorized disclosure or use of the EPDB or
any part fhereof could cause irreparable hazm and significant injury to the County,which
rnay be difficult to measure with certainty or to compensate through damages.
Accordingly,the Entity agrees that the County may seek and obtain against the Entity
and/or any other person or entity injunctive relief against the breach or threatened breach
af the foregoing undertakings,in addition to any other equitable or legal remedies which
may be available.
Section 7
OTHER TERMS AND CONDITIONS
7.1 No Agency. The parties hereto are independent contractors,and nothing herein shall be
construed to create an agency,joint venture,partnership or ofher form of business
association between the parties hereto.
7.2 No Waiver. No delay or omission by either party hereto to exercise any right or power
occurring upon any noncompliance or default by the other parly with respect to any of the
terms of tl�is Agreement shall impair any such right or power or be conshued to be a
waiver thereof unless the same is consented to in wriTing. A waiver by either of the
parties hereto of any of the covenants, conditions,or agreements to be observed by the
other shall not be consirued to be a waiver of any succeeding breach thereof or of any
covenant,condition,or agreement herein contained. All remedies provided for in this
Agreement shall be cumulative and in addition to,and not in lieu of, any other remedies
availabie to either party at law,in equity, or otherwise.
73 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.
7.4 Entire Agreement. This License Agreement constitutes the entire Agreement between
the parties,and there aze no understa.ndings or agreements relative hereto other tha.n those
that are expressed herein. No change, waiver,or discharge hereof shall be valid unless in
writing and executed by the party against whom such change,waiver,or discharge is
saught to be enforced.
7.5. No Assignmen� Neither party shall assign,sublet or transfer this Agreement,either in
whole or in part,without the prior rvritten consent of the other party,and any attempt to
do so shall be void and of no force and effect.
7.6 THE ENTITY AGREES THAT THE COUNTY IS FURNiSffiNG TFIE EPDB ON
AN"AS IS"BASI5,WITHOUT ANY SUPPORT WHATSOEVER,AND
WITHOUT REPRESENTATION OR ANY EXPRESS OR IMPLIED
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6113
WARRANTIES,INCLUDING BUT NOT IN ANY MANNER LIlVIITED TO,
FITNE"�S FOR PARTICULAR PURPOSE,MERCHANTABILITY OR THE
ACCURACY AND COMPLETENESS OF THE EPDB.
THE COUNTY'S SOLE LIABILTTY AND THE ENTITY'S EXCLUSIVE
REMEDY FOR ANY SUBSTANTIAL DEFECT WffiCH IMPAIRS THE USE OF
THE EPDB FOR THE PURPOSE STATED HEREIN SIiALL BE THE RIGHT
TO TERMINATE THIS AGREEMENT.
THE COUNTY DOES NOT WARRANT THAT THE EPDB ARE ERROR FREE.
THE EPDB WERE DEVELOPED FOR TI�E COUNTY'S OWN INTERNAL
BUSINESS PURPOSES AND THE COUNTY DOES NOT REPRESENT THAT
THE EPDB CAN BE USED FOR NAVIGATIONAL,TRACKING OR ANY
OTHER PURPOSE REQUIRING EXACTING MEASUREMENT OF DISTANCE
C}R DIRECTION OR PRECISIUN IN TH� DEPICTION OF GEOGRAPHIC
FEATURES.
THE COUNTY DISCLAIMS ANY OTHER WARRANTIES,EXPRESS OR
IIVIPLIED,RESPECTING THIS LICENSE AGREEMENT OR THE EPDB.
7.7 In no event shall the County be liable for actual, direct,indirect,special,incidental,
consequential damages (even if the County has been advised of the possibility of such
damage) or lost of profit,loss of business or any other financial loss or any other damage
arising out of performance or failure of performance of this Agreement by the County.
The County and the Entity agree each will be responsible for their own acts and
omissions under this Agreement and the resutts thereof to the extent authorized by law
and shall not be responsible for the acts or omissions of the other party under the
Agreement and the results thereof. The parties' respective liabilities shall be governed by
the provisions of the Municipal Tort Claims Act,Minnesota Statutes Chapter 466,and
other applicable law. This paragraph shall not be consh�ued t�bar legal remedies one
party may have for the other party's failure to fixlfill its obligations under this Agreement.
7.8 Notice. Any notice or demand shall be in writing and sha11 be sent registered or certified
mail to the other party address as follows:
To the Entity: City of Orono
2750 Kelley Parkway
Crystal Bay,MN 55323
6
. � 6113
To Hennepin Counry:
Hennepin County Administrator
A-2300 Government Center (233}
Minneapolis,MN 55487-0233
Copy to: Robert L.Hanson
Hennepin County Chief Information Officer
A-1900 Government Center (190)
Minneapolis,MN 55487-0190
Copy to: Patrick H. O'Connor
Director,Taxpayer Services Department
A-600 Government Center (060)
Minneapolis,NIN 55487-0060
7.9 Whereas Clauses. The matters set forth in the"Whereas"clauses on page one of this
Agreement are 'vncorporated into and ma.de a part hereof by this reference.
7.1 Q SurvivaI of Provisions. It is expressly understood and agreed that the obligations and
warranties of the Entity under Sections 3,4, 5, b,7.6, and 7.7 hereof and the obligations
and warranties of the Entity and the County which by their sense and context are intended
to survive the performance thereof by the Entity and the County,shall so survive the
campletion of performance and#ermination or cancellation of this Agreement.
7.11 Authority. The person or persons execudng this License Agreement an behalf of Entity
represent that they are duly authorized to execute this License Agreement on behalf of
Entity and represent and war.rant that this License Agreement is a legal,valid and binding
obligation and is enforceable in accordance with its terms.
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COUNTY ADMINISTRATOR APPROVAL
ENTITY,ha�ing signed this agreement,and the County having duly approved this
agreement on the�day of � 19�,and pursuant to such approval,the proper
County officials hauing signed 's contract,the parties hereto agree to be bound by the
provisions herein set forth.
Approved as to form COLTNTY OF HENNEPIN
an ution STA F NIINNE TA
c
By:
sistant o tt ey Assistant/Dep /County Administrator
Date:
CITY OF ORONO
By:
Mayor
And: ,
City Clerk/ ger
Form 1 (10/98} 8