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HomeMy WebLinkAboutResolution 4746 . ti � �—'_ . �� �� � � � � o 0 ��b. - CITY of ORONO . � � �� �,'�' RESOLUTION OF THE CITY COUNCIL ��`4�f'ESg� NO. � `� 4 � �_ A RESOLUTION AUTHORIZING THE CITY OF ORONO TO EXTEND AN AGREEMENT FOR THE USE OF HENNEPIN COUNTY'S ELECTRO1vIC PROPRIETARY DATA BASE w WHEREAS, the County has developed an electronic proprietary geographical digitized data base which was designed using an automated mapping facility software product which proprietary geographical digitized data base is hereinafter refened 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 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 Counry is agreeable to provide to the City the EPDB described in Exhibit A; and WHEREAS,the parties agree that the execution of this Agreement is necessary in order to adequately protect said EPDB. WHEREAS, on July 12, 1999 the City Council approved Resolution No. 4321 authorizing execution of the agreement with an expiration date of December 31, 1999; and WHEREAS,on October 23,2000 the City Council approved Resolution No. 4553 extending the agreement with an expiration date of December 31, 2001. NOW,THEREFORE,be it resolved`that the City Council authorizes extension of the agreement through December 31,2002. Adopted by the City Council of the City of Orono this 14th day of January, 2002. ATTEST: • � � �? �/� � inda S. Vee, City Clerk , Barbaza A. Peterson, Mayor Page 1 of 1 . � �� '� � .�x ` e . . . � . • � . . � 6-'� s • . ' A�eementNo. A18439 � � . . . � HEI�NEP�COLTNTY . CONDITIONAL USE LICENSE AGREEMENT THIS AGREEMENT,made by and between the COUNTY OF��EPIN,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 Govemment Center,Minneapolis,Minnesota 55487-0073 and the address of Entity is 27�0 Kelley Pazkway, Crystal Bay,Nlinnesota 55323. . . � � `�ITNESSETH � � � V�IEREAS,the County has developed electronic forms of certain data bases and an electronic proprietary geographical digitized data base hereinafter referred to as"EPDB"; and Wt-�REAS,the Entity desires to use the County's EPDB in the course of conductin�the • Entity's business; and .� ,� � � WHEREAS, in acknowled�nent of the Entity's above-stated purpose,the County is � a?reeable to provide to the Entity the EPDB, and . . tiVHEREAS,the parties agree that the execution of this A�reement is necessary in order � to adequately protect said EPDB; and . � � WHEREAS,the County e:cclusively ow�s the EDPB which is the subject of this A�reement and has the authority and legal right to grant Entity a license to have and use the EPDB as provided in this A�reement; and _ WHEREAS,the EPDB is trade secret or confidential information under the Minnesota . � Govemment Data Practices Act and is governed by I�iinnesota Statutes sections 37�.86 and � 13.03 as well as other applicable state and federal law. � � �� NOW THEREFORE,in consideration of the premises,as well as the obligations herein made and undertaken,the parties hereto,intendin�to be legally bound,hereby aa ee as follows: � � , . Form 1 (10/98) � � .. 474 � •• Section 1 � - SCOPE OF AGREEMENT � 1.1 This License A?reement 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 LI1I�IITED LICENSE 2.1 The County hereby grants the Entity a non-exclusive,nontransferable a.nd nonassi�able � limited use license to use the EPDB which includes self developed computer softwaze under Mi.nn. Stat. § 37�.86. Said licease shall commence on the.date of approval of this Agreement by the County and shall extend throughout the term of the A?reement unless terminated sooner,in accordance with the provisions hereof. . . � Section 3 ACKI�'OWLEDGl�1ENT OF PROPRIETARY INFOI211�IA.TION RESERVATION OF TITLE � � 3.1 The Entity acknowled�es and a�ees that the EPDB is the e:cclusive property of the - County,including,but not limited to; any and all indexes,and includes commercially � valuable i.nformation which reflect the efforts of skilled development experts and required the investment of considerable amounts of time and money, and that 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 fiuther acknowledses and a�rees the EPDB is a creative selection, coordination, arran�ement ana method of arrangement of data which is identified as being subject to copyri?ht � protection; is self-developed computer softwaze under Muin. Stat. § 375.86 and is an entire or substantial and discrete portion of a pattem,compilation,method,technique, process, data base or system developed with significant expenditure of funds by County under Minn. Stat. § 13.03. The Entity a�ees that the County o�vns and reserves all � rights,protection and benefits afforded under federal copyright law.in all EPDB fumished � to the Entity as unpublished�vorks, as well as all rights,protection and benefits afforded � under any other law relatin�to confidential and/or trade secret information respectin' 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 aad said copyri�ht. This Agreement does not effect any transfer of title in�� to any EPDB of the County. The Entity acknowled?es 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 ivith others to assert any right,title, or interest in � . • any EPDB of the County. 2 •, � . 47' 4 � _ ' Section 4 � PROTECTION OF PROPRIETARY INFORII�IATION � � � 4.1 Obliaations of Confidentiality,Limitations of Use. The Entity shall neither disclose, . , furnish, sell,resell,transfer,duplicate,reproduce nor disseminate,�in�vhole or in part,the � � � � EPDB of the County and its unique design, arran;ement 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 obtain access thereto in connection with the Entity's exercise of its ri�hts under this A�eement.The Entity may have and use the EPDB on a corporate-wide basis and shall have the ri?hts to use the EPDB on a limited number of sites,provided the equipment on which the EPDB is maintained supports only equipment operated by tfie � Entity and the EPDB is used only for the conduct of the Entity's,own intemal business by Entity 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 entity disclose or disseminate any EPDB to any other public or private entity. The obliaations of the Entity to protect confidentiality which are established by this A�eement apply to the EPDB itself and not to any graphic representation or products produced by the Entity while usin�the EPDB. Any authorized consultants, contractors or ajents of Entity must properly execute and file a sepazate EPDB Conditional Use License Agreement with •� � Hennepin County. . � The Entity�expressly agrees to use the County's EFDB in the ordinary course of its • business and all such use shall beaz a notice of copyright by Hennepin County. 4:L Secure Handling. The Entity shall requue that all EPDB be kept ina secure location at 27�0 Kelley Parkway, Crystal Bay,�T 55323 and maintained in a manner so as to reasonably preclude unauthorized persons from havin� access thereto. The Entity shall devote its reasonable efforts to ensure that all persons afforded access to EPDB protect same a;ainst unauthorized use,dissemination or disclosure. Entity agrees it will not . . kno�vin�ly or neglijently allow its employees, a�ents or independent contractors to copy, sell, disclose or othenvise make the EPDB available to others. Entity a?rees to � immediately notify the County by telephone and in�vritin�if Entity becomes awaze of , - any unauthorized duplication, sale or other disclosure. Entity further a�rees to preverit � unauthorized disclosure by taking appropriate security measures includin�,but not . limited to,providin�physical security for copies of the EPDB and takin� all steps Entity� takes to protect information,data or other tan�ible and intan�ible properiy of its own*n�: Entity re?azds as proprietary,confidential or nonpublic. Except for off-site backup,t�e � 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�vithout the prior �rTitten consent of the County,which consent shall not be unreasonably withheld. �� � 4.3 Assistance of the Entity. At the request of the County and e:�pense of the Entity,the � • . Entity shall use good faith and reasonable efforts to assist the County in identifying 2n� 3 � : .. 474 � : . , .. • �' 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 lona as the County shall hare provided the Entity with information reasonably � � :� justifyin�the conclusion of the County that such contrary use may have occurred. �� 4.4 Survival of Confidentiality Obliaations. The Entity's obli?ations respectin� � � confidentiality of the EPDB sb�11 sur�-ive termination of this A�eement for any reason and shall remain in effect for as long as the Entity continues to possess or control any EPDB furnished by the Count�. In addition,the County shall remain entitled to enforce its copyright and propriety interests in all EPDB. ' � • Section 5 TERti�I,TERII�TATION � 5.1 The Entity and the COUNTY a.�ee that this Agreement is in effect during the period commencin�January 1, 1999 a.nd terminating December 3I, 1999. This Aa eement shall commence from the date hereof.unless sooner terminated by either parly with cause upon three (3) calendar days' written notice to the other. The expiration or termination of this � Ao eement shall automaticall�•znd without further action by the County terminate and • extin�uish the license. In the e�•ent of any such expiration or fermination,the County shall have.the right to take imraediate possession of said EPDB,and all copies thereof wherever located, and�vithout demand or notice. `Vithin five(5) days after expiration or termination of this Aa eement;the Entity shall return the E'PDB and all copies thereof to the County,or upon request bS'the County,the Entity shall destroy all of the same and all copies thereof and certify in titiTitin�to the County that the same has been destroyed. 5.1.1 It is a�reed that any right or rer�edy provided for herein shall not be considered as the exclusive right or remedy but shall be considered to be in addition to a.ny other right or remedy hereunder or allowed bs law, equity or statute. 5.1.2 The County's failure to insist upon strict performance of any covenant, aareement or � . . stipulation of tbe A�reement,or to exercise any right herein contained shall not be a . �vaiver or relinquishment of such covenarrt, ajreement, stipulation or ri�ht, unless the Counry stipulates thereto in«�riun�. Any such written consent sha1l not constitute a waiver or relinquishment of such covenant, a�reement, stipulation or ri�ht. . � 4 . . . � �' � s •- Section 6 � Pi tJUI�'CTIVE RELIEF ' 6.1 The Entity acknowledges and a�rees that unauthorized disclosure or use o£the EPDB or � � � any part thereof could cause irrepazabTe harm and si�ificant injury to the County,which � � . may be difficult to measure�vith certainty or to compensate throti�h damages. � � � � � Accordingly,the Entity a�rees that the County may seek and obtai.n a�ainst the Entity and/or any other person or entity injunctive relief a�ainst the breach or threatened breach of the foregoing undertakin�s,in addition to any other equitable or Iegal remedies which may be available. , . Section 7 OTHER TERitiZS AND COYDITIONS 7.1 No Agency. The parties hereto aze independent contractors, and nothing herein shall be construed to create an agency,joint venture,parbaership or other form of business � association between the parties hereto. 7.2 No`�aiver. 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 A;reement shall impair a.ny such right or po�ver 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 a?reements to be observed by the other shall not be construed to be a waiver of any succeedin�breach thereof or of any � covenant, condition, or a?reement herein conta.ined. All remedies provided for in this Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to either party at Iaw, in equity, or othenvise. 7.3 Governing Law. This A?reement shall be govemed by and construed in accordance with the laws of the State of Minnesota. � 7.4 Entire Agreement. This License A?reement constitutes the entire Agreement between the parties, and there aze no understandings or�a?reements relative hereto other than those � � that are expressed herein. No change,waiver, or dischazge hereof shall be valid unless in �vritina and executed by the party a�ainst whom such chan�e,waiver, or dischaige is sou�ht to be enforced. . 7.5. l�'o Assibnment. Neither party shall assign,sublet or transfer this Agreement,either in whole or in part,without the prior written 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 FURi\�ISHING THE EPDB O`T AN "AS IS"BASIS,Z�ITHOUT ANY SUPPORT`YFiATSOEVER,AND � ' ti�ITHOUT REPRESENTATION OR ANY EXPRESS OR II,�IPLIED 5 . , , _ ' � � � � � WA�RRANTIES,INCLUDING BUT NOT I�i 1 ANY 112ANNER.LII�IITED TO, • FITNESS FOR PARTICULAR PURPOSE,MERCHANTABILITY OR THE � ACCURACY AND COI�IPLETEYESS OF THE EPDB. . .THE COLTiV'TY'S SOLE LIABILITY A1vD THE ENTITY'S EXCLUSIVE. ' . REI�IEDY FOR AI�'Y SUBSTAI�TIAL DEFECT�YHICH I1�AIl2.S THE USE OF � THE EPDB FOR THE PURPOSE STATED HEREIV SHALL BE THE RIGAT TO TER�tiIINATE THIS AGREElYIENT. � � THE COUNTY DOES NOT��A�tR.ANT THAT THE EPDB ARE ERROR FREE. . THE EPDB��ERE DEVELOPED FOR THE COUNTY'S OtiYN TitiTERI�IAL BUSINESS PURPOSES AND THE COUNTY DOES NOT REPRESENT TAAT THE EPDB CAN BE USED FOR NAVIGATIONAL,TR.ACKING OR A.NY OTHER PURPOSE REQUIRING EXACTING MEASUREI�N'T OF DISTANCE OR DIRECTION OR PRECISIO�t IN THE DEPICTION OF GEOGRAPHIC - ' FEATURES. . ' THE COUNTY DISCLAII�S ANY OTI3ER WA�R�iNTIES,EXPRESS OR . II�IPLIED,RESPECTI�tG THIS LICENSE AGREEMENT OR THE EPDB. 7.7 In no event shall the County be liable for actual, direct,indirect, special, incidental, • �� ', consequential dama?es (even if the County has been advised of the possibility of such. � dama�e) or lost of profit, loss of business or any other financial loss or any other dama�e arisin� out of performance or failure of performance of this A�eement by the County. � The County and the Entity agree each wiil 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 pariy under the A�reement 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 la�v. This para�raph shall not be construed to baz legal remedies one � party may have for the other party's failure to fulfill its obli?ations under this Aareement. 7.8 Notice. Any notice or demand shall be in writing and shall be sent registered or certified . � . mail to the other party address as follo�vs: � . . ' . To the Entity: City o€Orono � . 27�0 Kelley Pazkway . • Cry�tal Bay,1VNi 55323 � � 6 ' . .. � � � �3 •' . To Hennepin County: . . 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,NIN 55487-0190 � Copy to: Patrick H. O'Connor D'uector,Taxpayer Services Department A-600 Govemment Center (060) . � Minneapolis,NI�i t 55487-0060 7.9 ti�hereas Clauses. The matters set forth in the"Whereas" clauses on pa�e one of this A�eement aze incorporated into and made a part hereof by this reference. 7.10 Survival of Provisions. It is expressly understood and aa eed that the obligations and � warranties of the Entity under Sections 3,4, 5, 6, 7.6,and 7.7 hereof and the obligations and warranties of the Entity and the County which by their sense and cantext are intended � . �to survive the perfornnance thereof by the Entiry and the County, shall so stuvive the � completion of performance and terrrunation or cancellation of�his Agreement. 7.11 Authority. The person or persons executin'this License A�eement on behalf of Entity represent that they aze duly authorized to execute this License Agreement on behalf of Entity and represent and warrant that this License Ao eement is a legal,valid and bindin� obligation and is enforceable in accordance with its terms. . � - . 7 � . . � • . . . .. _ � � � � � � ' COUNTY ADZILYISTRATOR APPROVAL ENTITY,having signed this a�reement,and the County havi.n�duly approved this � a�eement on the�day of 19�,, and pursuant to such approval,the proper . � �County officials having signed 's contract,the parties hereto a�ree to be bound by the . .' provisions herein set forth. .� - . � � � � ' � � . Approved as to form COLTNTY OF HENNEPIN and . ution STA F MINNES TA . � � � • By: sistant o tto ey Assistant/Depu /County Administrator � Date• � CITY OF ORONO � ' By: . � � . Mayor . � . _ � . . � And: - � ' City Clerk/ a?er ' � ' Form 1 (10/98) 8 �