HomeMy WebLinkAboutResolution 5573 0 0.4?' CITYof ORONO
ISA RESOLUTION OF THE CITY COUNCIL
10EsK0 NO. 5 5 7 3
A RESOLUTION AUTHORIZING THE CITY OF ORONO
TO EXTEND AN AGREEMENT FOR THE USE OF
HENNEPIN COUNTY' S ELECTRONIC PROPIETARY 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 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 Bonestroo Rosene Anderlik (BRA)to provide services
to the City, and the City and BRA 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 BRA 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, 2007.
Adopted by the City Council of the City of Orono this 22nd day of January, 2007.
ATTEST:
I
Linda S. Vee, City Clerk J s M. White, Mayor
Page 1 of 1
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Agreenient No. A18439 -
HENNEPIN COUNTY � � :5 7 3
-- C—O�gI�FI�OI�A�I�S-�-T�GF�S-F-,�����uLEN=�
� THIS AGREEMENT,made by ai�.d between tl�e COLTNTY OF HENNEPIN, Taxpayer
Services Department, a body politic and corporate under the laws of the State of Min.nesota,
hereinafter refened to as the"County", and the City of Orono, hereinafter referred to as the
� "Entity". For puzposes of this Agreement,the address of the County is A703 Governnzent
Center, Minneapolis,Minnesota 55487-0073 and the address of Entity is 2750 Kelley Parkway,
Crystal Bay,Miimesota 55323. �
W�TNESS�T�II
� WHEREAS,the County has developed electronic fortns of certain data bases and an
electronic proprietary geographical digitized data base hereinafter referred to as "EPDB"; and
WHEREAS,the Entity desires to use the County's EPDB in the course of conducting the
. . Entity's business; and • :
WHEREAS, in acknowledgment of the Entity's above-stated purpose,the County is
. agreeable to provide to the Entity the EPDB, and
WHEREAS,the parties agree that the execution of this �greement is necessary in order
to adequately protect said EPDB; and ,
WHEREAS,the County exclusively owns the EDPB which is the subject of this
� Agreement and lias the authority and legal righ�to grant Entity a license to have and use the
EPDB as provided in this Agreement; and .
WHEREAS,the EPDB is trade secret or conficlential information under the 1Vlinnesota
::� � Government Data Practices 1�ct and is gover�ied by Minnesota Statutes sections 375.86 and �
. 13.03 as well as other applicable state and federal law.
NO�rV THEREFORE, in consideration of the premises, as well as the obligations herein
' made and undertaken,the parties hereto, intending to be legally bound, hereby a�ree as follows:
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Forn� 1 (10/ 98)
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Section 1 •
� ' 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 LIMITED LICENSE
� 2.1 The Couniy hereby grants the Entity a non-exclusive, nontransferable and nonassignable
�limited use license to use the EPDB which includes self developed computer softv✓are
under Minn. Stat. § 375.86. Said license shall commence on the date of approval of this
Agreement by the County and sha11 extend throughout the term of the Agreement unless
terminated sooner, in accordance with the provisions hereof.
Section 3 �
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A,CKNOWLEI)GMENT OF P]l�OP1tYETAII�Y YNFORIVI.A.TION � ' .
RESERVATION OF TITLE
3.1 The Entity acknowledges 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 skilled development experts and required
the investment of considerable amounts of time and money, and tha�the County has
treated the EPDB as trade secret and confidential information, which County entrusts to
. the Entity in confidence to use in the conduct of the Entity's business. The Entity further "
acknowledges and agrees the EPDB is a creative selection, coordination, arrangement and
� rnethod of arrangement of data which is identified as being subject to copyright
protection; is self-developed computer software under Minn. Stat. § 375.86 and is an � ' ,
entire or substantial and discrete portion of a pattern, compilation, method,�technique, � �
, process, data base or system developed witli significant expenditure of funds by County , .
under Minn. Stat. § 13.03. The Entity agrees that the County owns and reserves all �
rights,protection and benefits afforded under federal copyright law in all EPDB fumished
to the Entity as unpublished works, as well as all rights,protection 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 laws,rules, regulations and
• decisions which afford protection to the County for its confidential and trade secret
information and said copyri�ht. This A�reement does not effect any transfer of title in or
to any EPDB of the County. The Entity acknowledges that it is granted only a limited�
. right of use of such EPDB,which right is not coupled with an interest, and the Entity
shall not assert nor cause or cooperate tivith others to assert any right; title, or interest in
any EPDB of the County, :
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� Section 4 5 � �' S 5 ? 3
• ' _ PROTEC7CION OF PROJP�2IETARY INFORMATION
4.1 � Obligations of Confdentiality,Limiitations of Use. The Entity shall neither disclose,
furnish, sell, resell,transfer, duplicate, reproduce nor disseminate, in whole or in part, the �
EPDB of the County and its tulique design, arrangement or method of arrangement in its
•-------------electronic forrn�-fu:mished to::theREntity to�(1)many othe�pexs�on,mfirm,entity., organizatio�l,�,,�._.,,�,_.,,�,..
or subsidiary, except as expressly authorized hereunder; or (2) any employee o£the Entifiy
who does not need to obtain access thereto in connection with the Entity's exercise of 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, provided the
� equipinent on which the EPDB is maintained supports only equipinent operated by the
Entity and the EPDB is used only for the conduct of the Entity's own internal business by
Entity employees. All employees having access to the EPDB shall be infonned of the
requirements contained in Section 4 herein. The Entity shall not otherwise copy or
reproduce any EPDB of fhe Couilty. Under no circumstances may the entity 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 to any graphic representation or products produced by the Entity while
using the EPDB. Any authorized consultants, contractors or agents of Entity must
properly execute and file a separate EPDB Conditional Use License Agreement witll
' Hennepin County. '
• The Enti�y expressly agrees to use the Caunty's EPDB in the ordinary course of its
� business and a11 such use shall bear a notice of copyright by Hennepin County.
4.2 Secure Handling. The Entity shall require that all EPDB be kept�in a secure location at
2750 Kelley Parkway, Crystal Bay, MN 55323 and maintained in a manner so as to
reasonably preclude unauthorized perso��s from having access 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
� knowingly or negligently allow its employees, agents or independent contractors to copy,
sell, disclose or otherwise make the EPDB available to others. Entity agrees to �
� immediately notify the County by telephone and in v�rriting 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
limited 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
�ntity regards as proprieta_ry; confidential or nonpublic. Except for off-site backup, 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 tivithout the prior
written consent of the County, �r�hich consent shall not be unreasonably �°✓ithheld.
• 4.3 �ssistance of the Enti#�. At the request of the Gounty and expense of the Entity, the
Entity shall use good faith and reasonable efforts to assist the County in identif}�inc any
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� � use, copying, or disclosure of any EPDB by any cunrent or fozmer Entity personnel -- or , �
anyone else who may have come in possession of said EPDS 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 contrary use may have occurred.
4.4 Survival of Confidentiality Obligations. The Entity's obligations respecting
confidentiality of the EPDB shall 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
EPDB furnished by the County. In addition, the County shall remain entitled to enforce
its copyright and propriety interests in all EPDB.
Section 5 �
� TERM,T]ERMINATION �
5.1 The Entity and the COLTNTY agree that this Agreement is in effect during the period
cornmencing January 1, 1999 and terminating December 31, 1999. This Agreement shall
cornmence from the date hereof, unless sooner ternninated by either party with cause upon
� three (3) calendar days' written notice to the other. The expiration or termination of this
A.greement shall automatically and without further action by the County terminate and
extinguish the license. In the event of any such expiration or termination, the County •
shall have the right to take immediate possession of said EPDB, and all copies thereof
wherever located, and without demand or notice. Within five (5) days after expiration or . .
termination of this Agreement,the Entity shall return the EPDB and all copies thereof to
the County, or upon request by the County, the Entity shall destroy all of the same and all
copies thereof ancl certify in writing to the County that the same has been destroyed.
5.1.1 It is agreed that any right or remedy pxov�ded�or k�erein shall not be considered as the�
eYClusive 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 failure to insist upon strict performance of any covenant, agreement or
stipulation 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 shall not constitute a
waiver or relinquishment of such covenant, agreement, stipulation or right. �
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� Section 6 5i�'`� �
S �NJUNCTIVE RELIEF
6.1 The Entity acknowledges and agrees that unauthorized disclosure or use of the EPDB or
any part thereof could cause uxeparable harm and significant injuzy to the County,which
may 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
of the foregoing tuldertakings, in addition to any other equitable or legal remedies which
, �may be available.
Section 7
OTHER TERM[S AND CONDITIONS
7.1 1�10 A.gency. The parties hereto are independent coiltractors, and nothing herein shall be
construed to create an agency,joint veiit�ire, partnership or other 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 party with respect to any of the
terms of this Agreement shall impair any such right or power or be construed 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 tlie
other shall not be construed to be a waiver of any succeeding breach thereof or of any
covenant, condition, or agreement herein contained. All rem.edies provided for in this
Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies
available to either paxty at law, in equity, or otherwise.
7.3 Governing L�aw. This Agreement shall be governed by and construed in accordance
with the laws of the State of�innesota. .
7.4 Entire Agree�xent. This License Agreement constitutes the entire��Agreement betweerr
� the parties, and there are no understandings or agreements relative hereto other than those
that are expressed herein. No change, �vaiver, or discharge hereof shall be valid unless in
writing and executed by the party against whom such change,waiver, or discharge is
' sought to be enforced. . �
7.5. I°10 AssAba�me�g. Neither party shall assion, sublet or transfer this l�greement, either in
wnole or in pat�; without the prior wiitte� consznt of the other party, and any attem�t to
do so shall be void and of no force and effect.
7.6 �'I��El�"��T�' AG�E� '�'�iA'T T'�3E C01Ui�t'�'�' �S �'L1RIVTSH[�iVG 'TI�E ���� O:d
• AI�1 "�S i�" �1�.���, 'Y���'�II��J�' �I�i�' �IJ�'�'C➢�.� 'W��'I'S��VE�, AI��I� ,
V6'�'I'�IO'UT' �PR�S�t�''�A4�O�T �4��.IV� ���Pt�.—'SS �31���v��I����
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'. WARRA.NT�ES,INCLUDING BUT NOT IN ANY MANNER LTIVZITED TO, "
FI'TNESS FOR PARTICULAR PURPOSE,MERCHAI�TASILITX OR THE i
A.CCURACY AND COMPLETENESS OF THE EPDB. .
THE COUNTY'S SOLE LIABILITY A.ND THE ENTITY'S EXCLUSIVE �
REMEDY FOR ANY SUBSTANTIAL DEFECT WHICH IMPAIRS THE USE OF
_ . . . TI3E��PllB-FOR��PUR�O�-�S`P�A�L�-D H��Ii�f-S��L-L—BE-`�HE-RI�H�'---
TO TERMINATE THIS AGREEIVZENT.
THE COUNTY DOES NOT WARRANT THAT THE EPDB A.RE ERROR FREE.
7CHE EPD�WERE DEVELOPED FOR THE COUNTY'S OWN INTERNAL
BUSINESS PURPOS�S AND THE COYTNTY DOES NOT REPRESENT THAT
THE EPD$ CAN BE USED FOR NAVIGATIONAL,TRACKING OR ANY
OTHER PURPOSE REQUIRING EXACTTNG MEASUREMENT OF DISTANCE
OR DIRECTION OR PRECISION IN THE DEPIC'�'ION OF GEOGRAP�[][C
FEATURES.
THE COUNTY DISCLATMS ANY OTHER WARRANTIES,EXPRESS OR
YlYI]PI�IED, h�SPEC7CII�G 7t'HIS I,IC�I�TSE r�.G]f�EElVI]ENB' O�2 THE�PJDI�.
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 lo�st of profit, loss of business or any other financial loss or any other dainage
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 results thereof to the extent authorized by law
and shall not be responsible for the acts or omissions of the other party urider the
Agxeement 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 construed to bar legal remedies one
party may have for the other party's failure to fulfill its obligations under this Agreement.
7.8 IVotice. Any notice or demand shall be in writing and shall be sent registered or certified
rnail to the other party address as follows:
To the Entity: City of Orono
� 2750 Kelley Parkway
Crystal Bay, MN 55323
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To Hennepin County: � � � � 5 .5 7tV �
� Hennepin County Administrator � � �
A-2300 Government Center (233)
Minneapolis,MN 55487-0233
Copy to: Robert L. Hanson �
�- - �-- — Hennepin�Co�znty_Chiefln£ormat�..o..r� Offic.er
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, MN 55487-0060
7.9 �Vhereas C�auses. The i�zatters set forth in the "Whereas" clauses on page one of tliis �
Agreement are incorporated into and made a part hereof by this reference.
7.10 Su7rviva� off Prowisio�s. It is e;cpressly tuiderstood and agreed that the obligations and
warranties of the Entity under Sections 3, 4, 5, 6, 7.6, and 7.7 hereof and the obli;ations
' 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 tlie
• ' cornpletion of performance and termination or cancellation of this Agreement.
7.11 Autlaority. The person or persons executing this License Agreement on behalf of Entity
represent that they are duly authorized to execute this License Agreement on behalf of
Entity and represent and warrant that this License Agreement is a legal, valid and binding
obligation and is enforceable in accordance with its terms. '
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� ''� COUNTY ADMI1vISTR.A.TOR APPROVAL �
ENTITY, having 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 having signed is contract, the parties hereto agree to be bound by the
provisions herein set forth. �
Approved as to form COUNTY OF HENNEPIN
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and ution STAT F MINNES TA
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By:
ssistant o tto ey Assistant/Depu /County Administrator
Date:
� � CITY OF ORONO .
By: �\\ �
Mayo� �
r � f� • •
And: ,. U '—�---.�
City Clerk/IVV�:• ager '
� d
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Form 1 (10 /98) o