HomeMy WebLinkAboutResolution 5093 , `
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RESOLUTION OF THE CITY COUNCIL
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A RESOLUTION AUTHORIZING THE CITY OF ORONO
TO EXECUTE AN AGREEMENT FOR THE USE OF
MINNEHAHA CREEK WATERSHED MANAGEMENT MODEL
WHEREAS,the Minnehaha Creek Watershed District has developed a Watershed
Management Model and which is described in the Minnehaha Creek Watershed District License
Agreement attached and hereby made a part hereof; and
WHEREAS, the City of Orono desires to use this Minnehaha Creek Watershed
Management Model in the course of conducting the City's business; and
WHEREAS, the parties agree that the execution of this agreement is necessary to
adequately protect said Minnehaha Creek Watershed Management Model; and
NOW, THEREFORE, be it resolved that the City Council of Orono, Minnesota
authorizes execution of this agreement.
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Adopted by the City Council of Orono this 8th day of December, 2003.
ATTEST:
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Linda S. Vee, City Clerk Barbara A. Peterson Mayor
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• LICENSE AGREEMENT
MINNEHAHA CREEK WATERSHED MANAGE�IENT MODEL
Licensee: City of Orono
THIS LICENSE AGREEMENT is entered into by the Minnehaha Creek Watershed District("District"),
a political subdivision of the State of Minnesota,and The City of Orono("User").
WHEREAS the District has developed a model consisting of geographic-based data that may be used to
determine hydrologic,hydraulic and water quality conditions at all specific points within the watershed
under specified land use and land cover scenarios("Minnehaha Creek«'atershed Management Model,"or
MCWMM);
WHEREAS the MCWMM has been developed for application to watershed-wide planning as well as to �
the evaluation of the local consequences of development or public infrastructure projects;
WHEREAS the MCWNIM has been developed with public resources,and it is the District's intent that the
MCWMM be made available to other public bodies to provide the greatest public benefit for purposes of
water resource planning,management and protection;
WHEREAS the District finds that wide usage of the MCWMM by public bodies within the watershed has
watershed-wide benefit,wishes to promote such use,and therefore has determined not to charge other
public bodies for use of the MCWMM;
WHEREAS the District and User have a shared interest in the District's maintenance of current
geographic-based data within the MCV✓MM so that the MCWMM continues to reflect existing conditions
at the time of use;and '
• WHEREAS the District has determined that the MCWMM data are classified as"trade secret
information,"nonpublic data and otherwise data not subject to disclosure under the Minnesota Data
Practices Act,Minnesota Statutes Chapter 13;
NOW THEREFORE, in consideration of the foregoing,the District and User agree as follows:
1. Use of MCWMM Data
1.1 Authorized Uses.User is granted a nonexclusive,nontransferable and nonassignable license to use the
MCWMM. This license shall be in effect only during compliance by User and its agents,consultants and
contractors(ACC's)with the terms and conditions of this License Agreement. User and,pursuant to section
13, its ACC's may use the MCWMM in the form pro'vided by the District for User's own authorized public
purposes and for no other purpose.User and its ACC's may modify or�ansfer the MCWMM data,or
merge the MCWMM data into other data bases,only for User's authorized public purposes. User and its
ACC's may operate on the MCWMM data using such proprietary or public software as it independently is
authorized to use and may disclose or distribute the products of that operation,but it may not disclose or
distribute the MCWMM data in the same or substantially the same form as received from the District.
User may duplicate the MCWMM data for use by User and its ACC's,provided the central processing
units on which the MCWMM data are maintained support only equipment operated by User and its ACC's,
and the MCWMM data are used only for User's own authorized public purposes. Except for off-site
backup pursuant to established procedures,User and its ACC's shall not remove the MCWMM data from
their place of business.
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• 1.2 Unauthorized Uses.User and its ACC's shall not use the MCWMM data on behalf of any individual,
organization,corporation,government entity,or any other party other than User. User's ACC's shall use
the MCWMM data only in the conduct of User's business and for User's authorized public purposes. User
and its ACC's shall not duplicate or disclose the MCWMM data to any third parties unless such use,
duplication or disclosure is expressly authorizeci in writing by the District. User and its ACC's shall not
charge third parties for the availability of the MCWMM data. This shall not prevent User and its ACC's
from charging third parties as otherwise authorized for its software costs,staff time or other ancillary costs
associated with modeling and analysis using the MCWMM data.
User acknowledges that the District has declared the applicability of copyright protection to the MCWMM
data. User shall conform to all legal requirements consistent with the copyright status of the data as
declared by the District.
1.3 Third Party Access. If it is necessary for User to make the MCWMM data available to an outside ACC
for User's authorized public purposes,User must obtain from each ACC and provide to the District a signed
copy of the Watershed Management Model Third-Pariy Certification attached to and incorporated into this
License Agreement as Attachment A,and must receive a written authorization from the District.
1.4 Data Security.User and its ACC's agree to take all necessary and reasonable steps to ensure the
MCWMM data are not disclosed or made accessible in whole or in part to third parties except as may be
authorized in this License Agreement. User and its ACC's agree they will not knowingly or negligently
allow their employees or agents to copy,sell,disclose or otherwise make the MCWMM data available to
others. User and its ACC's agree to immediately notify the District by telephone and in writing of any
unauthorized sale or other disclosure.User and its ACC's further agree to prevent unauthorized disclosure
through appropriate security measures including,but not limited to,providing physical security for copies
of the MCWMM data and taking all steps that they take to protect tangible and intangible data products of
� their own that they reQard as proprietary,confidential or nonpublic.
• 1.5 Data Practices Act User shall treat the MCWMM data as nonpublic data not subject to public
disclosure under the Data Practices Act and shall advise any requestor of the data classification
accordingly. User shall notify the District immediately of any challenge to User's withholding of the
MCWMM data and shall not release the MCWMM data,or any part thereof,pursuant to the Data Practices
Act without written authorization from the District.
1.6 Reservation of Rights.The MCV✓MM data are the exclusive property of the District,which retains all
right,title and interest in the MCWMM data, including the right to license the data to other users. Any
right or remedy provided to the District in this License Agreement shall be nonexclusive and in addition to
any other right or remedy available to the District in law or eyuity.
1.7 Errors and Omissions.User timely shall advise the District in writin�of any errors or omissions it
finds within the MCWMM data.
1.8 Annual Report. User shall submit to the District annually by January 31 a report containing the
following information: (a)a description of each change in land use, land cover and stormwater
conveyancing infrastructure since the date of the previous annual report that may affect the outcome of
hydrologic,hydraulic or water quality modeling within the drainage area where the change has occurred,
including all information necessary for the District to maintain the currency of the MCWMM;(b)a text
description of User's use of the MCVJMM data since the date of the previous annual report;and(c)the
name and contact information for the User's representative(s)who may be contacted for further
information regardin�the matters in the report.
2.License Agreement Term and Termination
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2.1 Term.The term of this License Agreement shall commence upon execution of this License Agreement
• by both parties and shall end on the January 31 first following commencement. Notwithstanding,the
License Agreement shall renew automatically from year to year provided that the District has received the
annual report required by paragraph 1.8.
2.2 Termination for Cause.NotwiEhstanding section 2.1,the District may terminate this License
Agreement at any time on written notice to User if User fails to comply with the terms and conditions of
this License Agreement,and may terminate the License Agreement without cause on 30-day notice to User.
2.3 Return or Destruction of MCWMM Data. When this License Agreement has been terminated, User
must either destroy all copies of the MCWMM data and provide to the District written certification of the
destruction,or return all copies of the MCV✓NIM data to the District.
3.Limited Warranty and Disclaimers
3.1 Limited Warranty.The MCWMM data provided by the District are made available to User subject to
the following limitations and restrictions:
(a)User is responsible for the installation and use of the MCWMM data and the results or consequences
obtained from User's installation or use of the MCWMM data.
(b)The District does not warrant that the MCWMM data are error free,and disclaims any other warranties,
express or implied,respecting this License Agreement or the MCWMM data.
(c)THE MCWMM DATA,AND ASSOCIATED MANUALS,REFERENCE MATERIALS AND
TECHNICAL DOCUMENTATION(IF ANY),ARE PROVIDED "AS IS"WITHOUT ANY
SUPPORT WHATSOEVER AND WITHOUT WARRANTY AS TO THEIR PERFORMANCE,
• MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.THE ENTIRE
RISK AS TO THE RESULTS AND PERFORMANCE OF THE MCWMM DATA IS
ASSUMED BY USER.
(d)THE DISTRICT SHALL NOT BE LIABLE FOR ANY INDIRECT,SPECIAL,INCIDENTAL,
COMPENSATORY OR CONSEQUENTIAL DAMAGES,LOSS OF PROFIT,OTHER
FINANICAL LOSS,LOSS OF DATA,OR ANY OTHER DAMAGE OF ANY KIND ARISING
OUT OF USER'S USE OR ATTEMPTED USE OF THE MCWMM DATA,OR ANY THIRD
PARTY CLAIMS THAT MAY RESULT FROM THE USE OF THE MCWMM DATA,EVEN
IF THE DISTRICT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL
LOSS OR DAMAGE.
3.2 Sole Remedies.User's sole and exclusive remedy for breach of these limited warranties shall be to
return the MCWMM data to the District within sixty(60)days of receipt.The District shall replace or
repair the MCWMM data at its discretion and return the MCWMM data to User.
3.3 Indemnification. User shall indemnify,defend and hold harmless the District, its officers,board
members,employees and agents from any and all actions,costs,damages and liabilities of any nature
related to User's use of the MCWMM data,to the degree they are the result of User's or an ACC's
negligence,or other action or inaction by User or an ACC that is the basis for User's or an ACC's liability
in law or equity.Nothing in this License Agreement shall be construed to waive any immunity applicable
to the District or User or otherwise to create a right in any third party.
4.General Terms and Conditions
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• 4.1 Whereas Clauses. All recitals included in this License Agreement are incorporated into and
considered a part of the Agreement.
4.2 Amendment.The terms of this License Agreement may be amended only by written agreement of the
District and User. .
4.3 Governing Law.This License Agreement shall be governed by and interpreted according to the laws .
of the State of Minnesota.
4.4 Waiver.No waiver of any violation of this License Agreement shall constitute a waiver of any
subsequent violation,whether of the same or of any other term. Subsequent performance of any of the
terms of this License Agreement shall not constitute a waiver of any preceding violation,regardless of the
other party's knowledge of the preceding violation at the time of subsequent performance.The delay or
omission of any party's exercise of any right arising from any default shall not affect or impair the party's
rights regarding the same or future default.
4.5 No Agency. The District and User are independent parties for all legal purposes hereunder,and
nothing herein shall be construed to create an agency,joint venture,partnership or other form of business
association between the parties.
4.6 Assignment.User shall not assign,sublet or transfer this License Agreement in whole or in part,
without the prior written consent of the District.Any attempt to assign,sublet or transfer this License
Agreement without prior written consent shall be void and of no force or effect.
4.7 Correspondence. Correspondence regarding this License Agreement or the MCWMM data shall be
directed as follows:
� To the District:
Modeling Coordinator
Minnehaha Creek Watershed District
18202 Minnetonka Boulevard
Deephaven MN 55391
To User:
Greg Gappa
City of Orono
P.O. Box 66
Crystal,MN 55323-0066
4.8 Survival of Provisions.All obligations of User regarding use and protection of the MCWMM data,all �
indemnification obligations and limitations on all warranties in this License Agreement shall survive
termination of the Agreement.
4.9 Authority.The person or persons executing this License Agreement on behalf of User represent that
they are duly authorized to execute this License Agreement on behalf of User and represent and warrant
that this License Agreement is a legal,valid and binding obligation enforceable according to its terms.
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• INTENDING TO BE LEGALLY BOU1�1D by the foregoing terms:
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—� Linda S.Vee,City Clerk Barbara A.Peterson, Nfayor
Date: December 8,2003
(Attach Resolution of Governing Body Authorizing Signature)
MINNEHAHA CREEK WATERSHED DISTRICT
District Administrator
Date:
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