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HomeMy WebLinkAboutCC RES 01-047 A RESOLUTION APPROVING A CONDITIONAL USE LICENSE AGREEMENT BETWEEN THE CITY OF ST. ANTHONY AND HENNEPIN COUNTY RELATING TO ELECTRONIC DATA Meeting Sheet IIIIIIVIIIVIIIVIIIVIIIVIII IIIIIIII 104716 Box: 31 Folder: RES 2001 Document: CC RES 03-047 A RESOLUTION APPROVING A CONDITIONAL USE LICENSE AGREEMENT BETWEEN THE CIN OF ST. ANTHONY AND HENNEPIN COUNTY RELATING TO ELECTRONIC DATA • CITY OF ST. ANTHONY RESOLUTION 01-047 A RESOLUTION APPROVING A CONDITIONAL USE LICENSE AGREEMENT BETWEEN THE CITY OF ST. ANTHONY AND HENNEPIN COUNTY RELATING TO ELECTRONIC DATA WHEREAS, WSB & Associates, Inc. has requested certain electronic data information (aerial photography and GIS digital background information for St. Anthony) from Hennepin County; and WHEREAS, it is not anticipated there will be any costs for the use of said information. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of St. Anthony hereby approves the Conditional Use Electronic Proprietary Database License Agreement relating to electronic information from Hennepin County on the City of St. Anthony for use by the engineering firm of WSB & Associates, Inc. . Adopted this _13 day of `l j Qhrr- , 2001. JJ Ma ATTEST: A "41L City Clerk Reviewed by Administration: City Manager • Hennepin County Taxpayer Services Department • Survey Division, Suite A-703 612-348-3131,Phone Hennepin County Government Center www.co.hennepin.mn.us Minneapolis,Minnesota 55487-0073 I April 6, 2001 Michael Mornson, City Manager City of St. Anthony 3301 Silver Lake Road St. Anthony, Minnesota 55418-1699 Dear Mr Mornson: • Enclosed is your signed copy of the the Electronic Proprietary Database (EPDB) License Agreement between the City of St. Anthony and Hennepin County. Sincerely, Robert Moulder An Equal Opportunity Employer Recycled Paper • Agreement No. Al 1111 HENNEPIN 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 St. Anthony, 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 3301 Silver Lake Road, St. Anthony,Minnesota 55418-1699. WITNESSETH WHEREAS, 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 agreeable 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 WHEREAS, the County exclusively owns 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 Agreement; and WHEREAS, the EPDB is trade secret or confidential information under the Minnesota Government Data Practices Act and is governed by Minnesota Statutes sections 375.86 and 13.03 as well as other applicable state and federal law. NOW THEREFORE, in consideration of the promises, as well as the obligations herein made and undertaken, the parties hereto, intending to be legally bound, hereby agree as follows: • Form 1 (09/00) 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 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 terminated sooner, in accordance with the provisions hereof. Section 3 ACKNOWLEDGMENT OF PROPRIETARY INFORMATION 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 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, arrangement and 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 pattern, 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 all rights, protection and benefits afforded under federal copyright law in all EPDB furnished 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 copyright. This Agreement 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 with others to assert any right, title, or interest in any EPDB of the County. • 2 Section 4 PROTECTION OF PROPRIETARY INFORMATION 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, 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 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 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 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 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 County. 4.2 Secure Handling. The Entity shall require that all EPDB be kept in a secure location at 3301 Silver Lake Road, St. Anthony, MN 55418-1699 and maintained in a manner so as to reasonably preclude unauthorized persons from having access thereto. The Entityshall 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 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 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 Entity regards as proprietary, 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 any EPDB or any copy thereof without the prior written 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 3 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 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, TERMINATION 5.1 The Entity and the COUNTY agree that this Agreement is in effect during the period commencing February 20, 2001 and terminating December 31, 2001, unless terminated sooner. 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 expiration or termination of this Agreement 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 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 the 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 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. • 4 Section 6 INJUNCTIVE RELIEF 6.1 The Entity acknowledges and agrees that unauthorized disclosure or use of the EPDB or any part thereof could cause irreparable harm and significant injury 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 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 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 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 law, in equity, or otherwise. 7.3 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 are no understandings or agreements 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 against whom such change, waiver, or discharge is sought to be enforced. 7.5. No Assignment. 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 FURNISHING THE EPDB ON • AN "AS IS"BASIS,WITHOUT ANY SUPPORT WHATSOEVER, AND WITHOUT REPRESENTATION OR ANY EXPRESS OR IMPLIED 5 WARRANTIES, INCLUDING BUT NOT IN ANY MANNER LIMITED TO, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY OR THE ACCURACY AND COMPLETENESS OF THE EPDB. THE COUNTY'S SOLE LIABILITY AND THE ENTITY'S EXCLUSIVE REMEDY FOR ANY SUBSTANTIAL DEFECT WHICH IMPAIRS THE USE OF THE EPDB FOR THE PURPOSE STATED HEREIN SHALL BE THE RIGHT TO TERMINATE THIS AGREEMENT. THE COUNTY DOES NOT WARRANT THAT THE EPDB ARE ERROR FREE. THE EPDB WERE 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 GEOGRAPHIC FEATURES. THE COUNTY DISCLAIMS ANY OTHER WARRANTIES,EXPRESS OR IMPLIED,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 results 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 construed to bar legal remedies one party may have for the other party'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 St. Anthony 3301 Silver Lake Road St. Anthony, MN 55418-1699 • 6 COUNTY ADMINISTRATOR APPROVAL • ENTITY,having signed t is a Bement, and the County having duly approved this agreement on the SA day of , 20Q) , and pursuant to such approval, the proper County officials having signed thi contract, the parties hereto agree to be bound by the provisions herein set forth. Approved as to form COUNTY OF HENNEPIN and exe ion STATE OF MINNESOTA By: h. A;/e ' t Co ty ey Assistant/Deputy/County A 10 strator D : CITY OF SAINT ANTHONY By:_ W J A,--- — (Title) City 4nager • Date: 3 (�• o l • Form 1 (09/00) 8 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, MN 55487-0190 Copy to: Patrick H. O'Connor Director, Taxpayer Services Department A-600 Government Center (060) Minneapolis,MN 55487-0060 7.9 Whereas Clauses. The matters set forth in the"Whereas"clauses on page one of this Agreement are 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 Agreement. • 7.11 Authority. 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. This portion of page intentionally left blank • 7