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HomeMy WebLinkAboutResolution 4553 i�- z,V4) o siv. 41.) o =- . : o. CITY of ORONO �'�A}�, ,, / ��1 I '� RESOLUTION OF THE CITY COUNCIL \k.esH.D% NO. G 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 digitized 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 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 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 November 8, 1999 the City Council approved Resolution No.4379 extending the agreement with an expiration date of December 31, 2000. NOW,THEREFORE,be it resolved that the City Council authorizes extension of the agreement through December 31, 2001. Adopted by the City Council of the City of Orono this 23th day of October, 2000. ATTEST: i 4 . ,At. 4 /7,,L.c._ Linda S. Vee, City Clerk Ga 'el Jabbour, Ma r Page 1 of 1 . � � . � x��'��� � � � � � . � � � A�reement No. A18439 HENNEPN COUNTY . . . CONDITIONAL USE LICENSE 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 27�0 Kelley Parkway, . . . .Crystal Bay,�Minnesota.5.5323. . . _ ._ ' `VITNESSETH � ' VYHEREAS,the County has developed electronic forms 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 ab eeable to provide to the Entity the EPDB, and . . , WHEREAS,the parties agree that the execution of this Agreement is necessary in order to adequately protect said EPDB; and VJ�IEREAS,the County eYClusively ow-ns the EDPB which is the subject of this . Agreement and has the authority and legal right to grant Entity a license to have and use the EPDB as provided in this Aa eement; and _ � `V�REAS,the EPDB is trade secret or confidential informatiori under the Minnesota � � � � Government Data Practices Act and is govemed by Minnesota Statutes sections 375.86 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, intendi.n�to be legally bound,hereby agree as follows: � � . Form 1 (10/98) <- � • ..�eCt10II 1 • SCOPE OF AGREEiV�NT 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 LI�I�IITED LICENSE 2.1 The County hereby grants the Entity a non-exclusive,nontransferable and nonassignable limited use license to use the EPDB which includes self developed computer software 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 temiinated sooner, in accordance with the provisions hereof. Section 3 � ACKNOWLEDGMENT OF PROPRIETARY INFORMATION RESERVATION OF TITLE � 3.1 The Entity acknowled�es and a?rees that the EPDB is the e,cclusive property of the � • County,includin?,but not limited to; any and all indexes, and includes commercially � valuable i.nformation which reflect the efforfs 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 further . acknowledges and agrees the EPDB is a creative selection, coordination, arran;ement anci method 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 pattem, compilation,method,technique, process, data base or system developed with significant expenditure of funds by County under Minn. Stat. § 13.03. The Entity agrees that the County owns and reserves aIl rights,protection and benefits afforded under federal copyright law in all EPDB furnished 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 respecting � said EPDB, and that the Entifiy�vill abide by all relevant laws,rules,regulations and decisions which afford protection to the County for its confidential and trade secret � information and said copyright. This Agreement does not effect any transfer of title in�� � 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. • 2 . � . �,.. � 45 � �� � � Section 4 . . PROTECTION OF PROPRIETARY INFORi1�IATION � � 4.1 Obligations of Confidentiality,Limitations 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 unique design, arranaement 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 riahts 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 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 Entity employees. All employees having access to the EPDB shall be informed of the requireme�ts 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 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 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 Counfiy. 4.2 Secure Handling. The Entity shall require that all EPDB be kept in a secure location at 27�0 Kelley Parkway, Crystal Bay,NI�i T 55323 and maintained in a manner so as to . � reasonably preclude unauthorized persons 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 negli;ently allow its employees, a?ents or independent contractors to copy, sell, disclose or other�vise make the EPDB available to others. Entity agrees to . immediately notify the County by telephone and in�vriting if Entity becomes aware of - any unauthorized duplication, sale or other disclosure. Entity further a�rees to prevent � � unauthorized disclosure by taking appropriate security measures including,but not Iimited to,providing physical security for copies of the EPDB and taking all steps Entity takes to protect information,data or other tan?ible and intangible property of its own+yn�� Entity re�ards as proprietary, confidential or nonpublic. Except for off-site backup,th� 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 �tiTitten consent of the County,which consent shall not be unreasonably withheld. � • 43 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�n� 3 o- � � 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 m�nner that is contrary to the provisions of this Agreement so long as the County shall ha�-e provided the Entity�vith 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 shall sur�-ive termination of this Agreement for any reason and shall remain in effect for a�long as the Entity continues to possess or control any EPDB furnished by the Counri-. In addition,the County shall remain entitled to enforce its copyright and propriety inter�sts in all EPDB. � Section 5 . � ` " TERtiI,TERiI�IINATION 5.1 The Entity and the COUNTY a�ee that this Agreement is in effect during the period commencin'January 1, 1999 a�d termivating December 31, 1999. This Agreement shall commence from the date hereof.unless sooner temunated by either party with cause upon three (3) calendar days' written notice to the'other. The expiration or temlination of this � Agreement shall automaticall��and wzthout further action by the County terminate and . extiriguish the license. In the e�•ent of any such expiration or termination,the County � • shall have.the right to take imnediate possession of said EPDB, and all copies thereof � wherever located, and without demand or notice. `Vithin five (5) days after expuation or termination of this Agreement;the Entity shall retum the EPDB and all copies thereof to • the County, or upon request b5-the County,the Entity shall destroy all of the same and all copies thereof and certify in«riting to the County that the same has been destroyed. 5.1.1 It is agreed that any right or renedy provided for herein shall not be considered as the exclusive right or remedy but shall be considered to be in addition to any other right or remedy hereunder or allowed br la�v, equity or statute. 5.1.2 The County's failure to insist upon strict performance of any covenant, aa eement or stipulation of the A�eement, or to exercise any right herein contai.ned shall not be a . waiver or relinquishment of such covenatrt, agreement, stipulation or right, unless the County stipulates thereto in�rTivng. Any such written consent shall not constitute a waiver or relinquishment of such covenant, ajreement, stipulation or right. . . . ' � 4 , . . � � � e�Do� � • Section 6 INJUNCTIVE RELIEF � 6.1 The Entity acknowledges and a�ees that unauthorized disclosure or use of the EPDB or . any part thereof could cause irrepazable harm and si�nificant injury to the County,which � � �may be difficult to measure�vith 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 undertakin�s,in addition to any other equitable or legal remedies which may be available. Section 7 � OTHER TERitiZS AlYD COYDITIONS 7.1 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency,joint venture,partnership or other form of business association between the parties hereto. . • 7.2 No�Vaiver. No delay or omission by either party hereto to exercise any right or power occLUring 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 uriless 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 construed 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 available to either party at la�v, in equity,or othenvise. 73 Governing Lasv. This A�reement shall be governed by and construed in accordance with the laws of the State of Minnesota. � 7.4 Entire Agreement. This License Ao eement constitutes the entire Agreement between � . the parties, and there are no understandin�s or aa eeinents relative hereto other than those . � that are expressed herein. No change,waiver, or discharge hereof shall be valid unless in ' � writing and executed by the party a?ainst whom such chan�e,waiver, or discharge is sought to be enforced. � � 7.5. No Assibnment. Neither party shall assi?n, sublet or transfer this Agreement, either in �vhole or in part,without the prior written consent of the other parry, and any attempt to do so shall be void and of no force and effect. 7.6 THE ENTITY AGREES THAT THE COUNTY IS FURl�tISHING THE EPDB O� � AN "AS IS" BASIS,`YITHOUT ANY SUPPORT`YHATSOEVF,R,AND � ' «ITHOUT REPRESENTATION OR ANY EXPRESS OR II�IPLIED 5 . .. ,_ . -_' WA,RRA.NTIES,I�tCLUDING BUT NOT IN ANY MANNER.LIitiIITED TO, � • FITNESS FOR PARTICULAR PURPOSE,I�RCHANTABILITY OR THE � ACCUR.ACY ANll CONIPLETENESS OF THE EPDB. . THE COU�ITY'S SOLE LIABILITY Ai�tD THE ENTITY'S EXCLUSIVE. � . RE�IEDY FOR ANY SUBSTAlrTIAL DEFECT`VHICH I11�IPAIRS THE USE OF � THE EPDB FOR THE PURPOSE STATED HEREIN SHALL BE THE RIGHT TO TERII�IINATE THIS AGREEMENT. THE COUNTY DOES NOT`i�ARRANT THAT THE EPDB ARE ERROR FREE. . THE EPDB`VERE DEVELOPED FOR THE 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 OR DIRECTION OR PRECISION IN THE DEPICTION OF GEOGRAPffiC � FEATURES. . ' THE COUNTY DISCLAIMS ANY OTHER WARRANTIES,EXPRESS OR - .INIPLIED,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 dama�e arisin�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 A�reement and the results thereof to the extent authorized by law and shall not be responsible for the acts or omissions of the other parry under the Agreement and the results thereof. The parties' respective liabilities shall be govemed 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 parry's failure to fulfill its obligations under this Agreement. 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 follows: . . � � . ' To the Entity: City of Orono � � . 27�0 Kelley Pazkway - Cr�tal Bay, MN 55323 � � � � 6 • • r . . .., .� 5 ���� • � To Hennepin County: . Hennepin County Aciministrator � A-2300 Govemment 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 Director,Taxpayer Services Deparhnent A-600 Govemment Center (060) . � Minneapolis,lVl�i t 55487-0060 7.9 Whereas Clauses. The matters set forth in the"Whereas" clauses on page one of this Agreement aze incorporated into and made a part hereof by this reference. 7.10 Survival of Provisions. It is expressly understood and agreed 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 context are intended � . �to survive the performance thereof by the Entity and the County; shall so survive the � completion of performance and termination or cancellation of this Ajreement. 7.11 Authority. The person or persons executing this License Agreement 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 Agreement is a legal,valid and binding . obligation and is enforceable in accordance with its terms. � . � . • .�. . � ' COUNTY ADl�1I�TISTRATOR APPROVAL � ENTITY,havi.ng signed this a�eement, and the County havi.ng duly approved this ab eement on the�day of 19�, and pursuant to such approval,the proper ' � . County officials having signed 's contract,the parties hereto agree to be bound by the .� provisions herein set forth. . � . � � � � � � � Approved as to form COLTNTY OF HENNEPIN � and . ution . 3TA F N�NNES TA c ' By: ssistant o tto ey . Assistant/Depu /County Administrator Date: CITY OF ORONO � By: � ` � Mayor . � � � � � � � w . . And: _ � '`�— ' � - City Clerk/ ager � Form 1 (10/98) 8 �