1b SWMP Update
CITY OF
CHANHASSEN
7700 Market Boulevard
PO Box 147
Chanhassen, MN55317
Administration
Phone: 952.227.1100
Fax: 952.227.1110
Building Inspections
Phone 952.227.IIBO
Fax: 952.227.1190
Engineering
Phone: 952.227.1160
Fax: 952.227.1170
Finance
Phone: 952.227.1140
Fax: 952.227.1110
Park & Recrealion
Phone 952.227.1120
Fax: 952.227.1110
Recreation Certler
2310 Coulter Boulevard
Phone: 952.227.1400
Fax 952.227.1404
Planning &
Nalural Resources
Phone: 952.227.1130
fax: 952.227.1110
Public Works
1591 Park Road
Phone: 952.227.1300
Fax: 952.227.1310
Senior Center
Phone 952.227.1125
Fax 952.227.1110
Web Site
www.ci.chanhassen.mn.us
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MEMORANDUM
To: Todd Gerhardt, City Manager
From: Lori Haak, Water Resources Coordinator ~
Date: May 16,2005
Re: License Agreement for the Minnehaha Creek Watershed Management
Model for Surface Water Management Plan Update
Ô~.
ACTION REOUESTED
City staff recommends the City Council adopt the attached resolution
authorizing the Mayor to sign the License Agreement for the Minnehaha
Creek Watershed Management Model.
VOTE
Adopting the resolution requires a simple majority of City Council members
present.
BACKGROUND
The contract for the update of the Surface Water Management Plan (SWMP)
was awarded at the November 8, 2004 City Council meeting. Part of this
contract is the update of the City's surface water management model.
Watershed districts, like Minnehaha Creek Watershed District (MCWD),
frequently have their own surface water management models. The data from
the MCWD model will assist the City's consultant, Short Elliott Hendrickson
(SEH), in making sure its model is consistent with the MCWD's model.
MCWD requires cities within the MCWD to sign a license agreement prior to
providing the modeling data to the municipalities. The agreement is attached
(Attachment 2). The City Attorney reviewed the agreement and did not
recommend any changes to the language therein.
SEH will be required to sign Attachment A of the license agreement
("Watershed Management Model Third-Party Certification") prior to
receiving the model from the MCWD or the City.
The City of Chanhassen. A growing community wi!h clean lakes, quality schools, a charming downtown, thriving businesses, winding trails, 311d beautiful parks. A great place to live, work, and play
,i,j
Todd Gerhardt
May 16,2005
Page 2 of 2
RECOMMENDATION
Staff.recommends that the City Council adopt the following motion:
"The Chanhassen City Council adopts the attached resolution authorizing the Mayor to
sign the License Agreement for the Minnehaha Creek Watershed Management Model."
ATTACHMENTS
1. Resolution Authorizing the Signature of the License Agreement for the Minnehaha
Creek Watershed Management Model.
2. License Agreement for the Minnehaha Creek Watershed Management Model.
G:\ENGlLoriISWMPI2004 SWMP UpdateIMCWD Model CC Report.doc
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
DATE:
RESOLUTION NO:
MOTION BY:
SECONDED BY:
A RESOLUTION AUTHORIZING THE MAYOR TO SIGN THE LICENSE
AGREEMENT FOR THE MINNEHAHA CREEK WATERSHED MANAGEMENT
MODEL
WHEREAS, the contract for the Surface Water Management Plan Update was awarded on
November 8, 2004; and
WHEREAS, Task 3.4 of the contract is the update of the 1994 SWMP HydroCAD model;
and
WHEREAS, the Minnehaha Creek Watershed Management Model will provide the City's
consultant with the ability to ensure the accuracy of the updated HydroCAD model; and
WHEREAS, the Minnehaha Creek Watershed District requires municipalities to sign the
license agreement before the model is made available to them.
NOW, THEREFORE, BE IT RESOLVED that the Chanhassen City Council hereby
authorizes the Mayor to sign the license agreement for the Minnehaha Creek Watershed
Management Model.
Passed and adopted by the Chanhassen City Council this 16th day of May, 2005.
ATTEST:
Todd Gerhardt, City Manager
Thomas A. Furlong, Mayor
YES
NO
ABSENT
LICENSE AGREEMENT
MINNEHAHA CREEK WATERSHED MANAGEMENT MODEL
Licensee:
THIS LICENSE AGREEMENT is entered into by the Minnehaha Creek Watershed
District ("District"), a political subdivision of the State of Minnesota, and
, a ("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 Watershed 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 MCWMM 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 MCWMM 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 (ACe's) with the terms and conditions of
this License Agreement. User and, pursuant to section 1.3, its ACC's may use the
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MCWMM in the form provided by the District for User's own authorized public purposes
and for no other purpose. User and its ACC's may modify or transfer 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.
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 authorized 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-Party Certification attached to and incorporated into this License Agreement as
Attachment A, and must recei ve a written authorization from the District.
1.4 Data Security. User and its ACe'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
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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 regard 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 MCWMM 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 equity.
1.7 Errors and Omissions. User timely shall advise the District in writing 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 MCWMM 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 regarding the matters in the report.
2. License Agreement Term and Termination
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. Notwithstanding 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.
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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 MCWMM 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
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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
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:
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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.
INTENDING TO BE LEGALLY BOUND by the foregoing terms:
Print title:
Date:
(Attach Resolution of Governing Body Authorizing Signature)
MINNEHAHA CREEK WATERSHED DISTRICT
President
Date:
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tiÌ
ATTACHMENT A
WATERSHED MANAGEMENT MODEL THIRD-PARTY CERTIFICATION
hereby requests authority to exercise rights to use the
Minnehaha Creek Watershed District's Watershed Management Model (MCWMM) as an
agent, consultant or contractor to under the License Agreement
executed on between and the Minnehaha Creek
Watershed District. In assuming that authority, and in consideration therefore,
hereby represents and affirms that it has received and is familiar
with the cited License Agreement, that its authority is limited by the terms of the
Agreement, and that it is fully subject to all limitations, obligations and liabilities set
forth in that Agreement to the same extent as if it were a signatory thereto.
[NAME of ENTITY]
By
(Type or print name and title)
Date:
(Notary Acknowledgment)
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