CR2002-159-HC digitized data agreement
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. October 10, 2002 HOPKINs Council RepOli 2002-159
License Agreement
Hennepin County Digitized Data
Proposed Action
Staff recommends adoption of the following motion: "Move that Council adopt
Resolution No. 2002-91 , authorizing the City to enter into an agreement with Hennepin
County for the use of its geographical digitized data."
Overview
Currently the City is actively involved in the retrieval and storage of City records in a
digitized mode. Hennepin County has developed electronic forms of celiain databases
including an electronic geographical digitized database, which the City can use to meet
its communication goals. The County requires the City to renew its license agreement for
the use of proprietary information. The agreement provides Hem1epin County copyright
protection of its material and ensures that users do not inappropriately use or sell the data.
SuppOliing Information
. License agreement
. Resolution 2002-91
. b 13Jr
Steven G. Bol
Assistant City Engineer
Financial Impact: $ 0.00 Budgeted: YrN NA Source: NA
. Related Documents (CIP, ERP, etc.): NA Notes:
. CITY OF HOPKINS
HENNEPIN COUNTY, MINNESOTA
RESOLUTION 2002-91
RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF HOPKINS AND
HENNEPIN COUNTY AND ITS TAXPA YER SERVICES DEPARTMENT FOR
ELECTRONIC DIGITIZED DATA
WHEREAS, the City of Hopkins wishes to maintain a Geographic Information System
database, and
WHEREAS, a current electronic geographical digitized database is needed to maintain
sllch a system. and
WHEREAS, Hennepin County Department of Taxpayer Services has the necessary
electronic geographical digitized database, and
WHEREAS, Hennepin County has a proprietary interest in the electronic geographical
digitized database, and
. WHEREAS, Helmepin County and the City of Hopkins have entered into a previous
license agreement regarding the County's proprietary interest, Agreement #Al 2109 dated
February 16, 1999 and subsequently renewed this agreement tlllOUgh 2001, and
WHEREAS, Hennepin County proposes have this agreement extend t1110ugh December
31, 2003, unless terminated sooner.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Hopkins,
Minnesota, that the Mayor and City Manager are hereby authorized to sign and execute an
agreement with Hennepin County for the use of its geographical digitized data tlllOUgh
December 31, 2003, unless terminated sooner.
Adopted by the City Council of the City of Hopkins, Minnesota. this 15th day of October, 2002.
Eugene 1. Maxwell, Mayor
ATTEST:
. Teny Obermaier, City Clerk
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Agreement No.
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 Hopkins Public Works hereinafter
referred to as the "Entity". For purposes of this Agreement, the address of the County is A703
Govenunent Center, Minneapolis, Mirmesota 55487-0073 and the address of Entity is 11100
Excelsior Boulevard, Hopkins, Minnesota 55343-3435.
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 infonnation 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:
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Form 1 (09/00)
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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 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. 9375.86. 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
RESERV A TION 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 subj ect to copyright
protection; is self-developed computer software under Minn. Stat. 9 375.86 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. 9 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 infornlation 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.
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. 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 (l) 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 cOlll1ection 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 EPOB 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 EPOB shall be informed of the
requirements contained in Section 4 herein. The Entity shall not otherwise copy or
reproduce any EPOB of the County. Under no circumstances may the entity disclose or
disseminate any EPOB 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 EPDE. Any authorized consultants, contractors or agents of Entity must
properly execute and file a separate EPOB Conditional Use License Agreement with
. Helmepin County.
The Entity expressly agrees to use the County's EPOB 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
11100 Excelsior Boulevard, Hopkins, Minnesota 55343-3435 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 negligently allow its employees, agents or independent contractors to
copy, sell, disclose or otherwise make the EPOB 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 EPOB 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
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. 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 ofthe 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 September 25 and terminating December 31, 2003, 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.
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. 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 sha1l 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
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. 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 IMP AIRS 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 loss 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 Hopkins Public Works
11100 Excelsior Blvd.
Hopkins, MN 55343-3435
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. To Hennepin County: Hennepin County Administrator
A-2300 Government Center (233)
Millileapolis, MN 55487-0233
Copy to: Robert L. Hanson
Hellilepin 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)
Millileapolis, 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 ofthe 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.
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. COUNTY ADMINISTRATOR APPROVAL
ENTITY, having signed this agreement, and the County having duly approved this
agreement on the _ day of , 2002, and pursuant to such approval, the proper
County officials having signed this contract, the parties hereto agree to be bound by the
provisions herein set forth.
Approved as to form COUNTY OF HENNEPIN
and execution STATE OF MINNESOTA
By:
Assistant County Attorney Assistant/Deputy/County Administrator
Date:
CITY OF HOPKINS PUBLIC WORKS
By:
(Title)
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Date:
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Fom1 1 (09/00) 8
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