HomeMy WebLinkAboutC-2388 - License Agreement regarding Parking Control Management System0
O� 4ALM Se
v
c�trxo rT�
Office of the Director
of Finance (714) 323 -8229
May 26, 1983
0 •
City of Palm Springs
C A L I FORNIA
BOX 1196. 92462
Wanda E. Anderson
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92663 -3884
RE: Parking Control Management Systems License Agreement
Dear Ms. Anderson:
Enclosed is the approved agreement between the City of Palm Springs and
the City of Newport Beach for the Parking Control Management Systems License
Agreement purchase.
Kenny Yokoi, our Data Processing Manager, will be in contact with your
City's data processing personnel to arrange final details for payment and
transmittal of the system.
Thank you for your assistance in enabling the City of Palm Springs to acquire
your fine Parking Control Management System,
y truly yours,
i
t
`ilAUL ARD
Finance irector
PRH:sva
Enclosure
E
lo
It
I .,_ e . 'IT
El
�I
MINUTE ORDER NO. 3237
C�
AWARDING CONTRACT FOR THE PURCHASE OF A
PARKING CITATION MANAGEMENT SYSTEM TO THE
CITY OF NEWPORT BEACH, CALIFORNIA, FOR
$6,500.
I HEREBY CERTIFY that this Minute Order, awarding
a contract to the City of Newport Beach, California,
for the purchase of a parking citation management
system for $6,500, was adopted by the City Council
of the City of Palm Springs, California, in a meeting
thereof held on the 18th day of May, 1983.
JUDITH SUMICH
City Clerk
G 2
• ORIGINAL
LICENSE AGREEMENT
30 r1 z
. THIS AGREEMENT, made and entered into this 2qfjday
of , 1983, by and between THE CITY OF NEWPORT BEACH, a
Municipal Corporation and Charter City (hereinafter "Licensor ")
yd,-a, EXa,�,"eDP'
and THE CITY OF PALM SPRINGS, a GheT-t-e7r City and Municipal
Corporation (hereinafter "Licensee ") is made with reference to
the following facts, the materiality and existance of which is
stipulated and agreed by the parties hereto:
A. Licensor has developed a computer program for the
management of parking and citations issued by a municipality;
B. This computer program has been designated by
Licensor as the Parking Citation Management System (hereinafter
PCMS) and the system allows a municipality to keep track of
parking citations from the date of issuance to the date on which
the citations are cleared, a process which may take as long as
two years and may involve numerous separate actions by various
State and local agencies;
C. The PCMS, which consists of approximately 40 pro-
grams, each of which must interface with the other programs in
the system for correct operation, was developed only after the
expenditure, by Licensor, of approximately $40,000.00, and the
0
0
expenditure of approximately 3,200 hours by employees of
Licensor;
D. Licensor proposes to authorize the use of the PCMS
by Licensee and to do so upon receipt of consideration which will
serve to defray the costs and expenses heretofore incurred by
Licensor;
E. Licensor may wish to engage in efforts to market
the PCMS to other municipalities and will agree to authorize the
use of the PCMS by Licensee only upon obtaining appropriate
assurance that the system will not be disclosed or revealed by
Licensee and that Licensor retains all rights to market and /or
sell the system.
F. Licensee is willing to accept the right to utilize
the PCMS upon the terms and conditions contained within this
License Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of Licensor
Subject to the terms and conditions contained here-
in, Licensor agrees as follows:
(a) To provide Licensee with copies of source
modules for the PCMS sufficient to allow Licensee to fully imple-
ment the PCMS into Licensee's existing computer system;
(b) To assist Licensee in implementing the PCMS
2 76 h
0
0
L.j
into Licensee's current computer system, provided, however, any
services rendered by Licensor, or the employees, agents,
representatives or officers thereof, in excess of eight (8) hours
on Licensee's site, not inclusive of travel time, shall be
reimbursed by Licensee at the rate of $45.00 per hour, per
person, and provided further, that Licensee shall reimburse
Licensor for any and all expenses incurred by Licensor or its
employees, agents, representatives or officers;
(c) Licensor shall promptly provide Licensee with
any amendment to, addition to, alteration of, refinement of, or
expansion of, the PCMS, which has been developed by Licensor, or
its officers, agents, employees or representatives, and which, in
the opinion of Licensor, will assist Licensee in the operation of
the PCMS.
(d) Licensor shall also promptly provide Licensee
with any amendment to, addition to, alteration of, refinement of,
or expansion of, the PCMS, which has been developed by any firm,
person, entity or corporation to which rights to the PCMS have
been granted by Licensor, which amendment, addition, alteration,
refinement or expansion has been provided to Licensor.
2. Duties of Licensee
Licensee agrees as follows:
(a) Licensee shall pay to Licensor the sum of
3
0 0
$6,500.00 within fifteen days from the date on which Licensee re-
ceives the source modules for the PCMS;
(b) Licensee further agrees to reimburse Licensor,
at the rate of $45.00 per hour, per person, for all services
rendered by Licensor, or the officers, agents, representatives or
employees thereof, in excess of eight (8) hours on Licensee's
site, not inclusive of travel time,, which are related, in any
way, to the operation or implementation of the PCMS, and Licensee
further agrees to reimburse Licensor for any expenses incurred by
Licensor or its officers, agents, employees or representatives
that are, in any way, related to the duties and obligations of
Licensor pursuant to this agreement.
3. Use of System
The Licensee hereby acknowledges and agrees that
Licensor is the owner of all proprietary rights in and to the
PCMS, and each and every part thereof, and the material and
information that is now, or hereafter, provided or revealed to
Licensee under this agreement and relating to the PCMS. Licensee
further acknowledges that the PCMS, and the material and informa-
tion of which it is comprised, is being revealed to Licensee in
confidence. Licensee understands and agrees that it acquires no
rights whatsoever pursuant to this agreement to sell, market,
transfer, convey, disclose or reveal the PCMS or any portion or
4 �,
0
0
part thereof to any other person or entity, and that the rights
it receives pursuant to this agreement are limited to the right
to use the PCMS in the performance of municipal functions.
Accordingly, Licensee agrees as follows:
(a) Neither Licensee nor its officers, employees,
agents or representatives shall disclose, reveal, sell, market,
convey any portion of the PCMS to any other person or entity and
Licensee hereby covenants and agrees to keep and respect the
confidence pursuant to which the PCMS has been disclosed to
Licensee;
(b) Licensee shall not, either during or after the
term of this agreement, do anything, or aid or assist or
encourage any other person or party to do anything, which would
infringe upon, harm, injure, or contest the rights of Licensor
with regard to the PCMS, or any component thereof.
4. Term
This agreement shall continue in full force and
effect, unless and until, terminated as provided in paragraph
five (5) below.
S. Default and Termination
Duties After Termination
(a) Termination by Licensee
Licensee may terminate this agreement, at any
I 5
0 9
time, by giving to Licensor written notice of such termination
not less than 30 days prior to the date of termination. Licensee
shall not, in the event of such termination, be relieved from
performance of the covenants and promises which are set forth in
paragraphs 2, 3, 6, 7, and 9 of this Agreement. In the event of
termination by Licensee, Licensee shall retain the rights to use
the PCMS, but Licensor shall no longer be obligated to perform
any of the duties required by this Agreement, including, but not
limited to, the obligation to provide Licensee with refinements
to the PCMS and the obligation to provide services to assist
Licensee in the operation or implementation of the PCMS.
(b) Termination by Licensor
(1) In the event that Licensee fails to make
any payment of money owed to Licensor, when due, and such default
is not totally cured within 30 days after Licensor gives written
notice of such default to Licensee, then Licensor may terminate
this agreement at any time thereafter by giving written notice of
such termination to Licensee, and, further, Licensor may pursue,
against Licensee, any legal remedies then available to Licensor;
(2) In the event that Licensee fails to per-
form any obligation imposed upon Licensee by virtue of the terms
and conditions set forth in paragraph 3, Licensor may terminate
this agreement at any time thereafter by giving written notice of
6 .+
0 0
such termination and Licensee shall have no right to cure such
default in performance.
6. Liability
Licensor has made no representations or promises to
Licensee that implementation of the PCMS in the computer system
maintained by Licensee will result in any benefit whatsoever to
Licensee. Licensor has also made no representations to Licensee
concerning the suitability of the PCMS for the computer system
maintained by Licensee and Licensor shall, in no way, be respon-
sible nor liable for any loss, claim, injury or damage that may
be incurred by Licensee that is, in any way, related to the PCMS
or the implementation thereof. Licensee further agrees to hold
Licensor harmless, and indemnify and defend Licensor, with regard
to any claim, loss, litigation or damage that may be alleged to
have resulted from the PCMS, or the implementation, operation or
use thereof by Licensee.
7. Non - Exclusive
Licensee stipulates and agrees that the right con-
ferred upon it by this agreement are non - exclusive, and in no way
restrict the ability of Licensor to sell, transfer, market, fran-
chise, or otherwise convey, to any other person, or entity, the
PCMS, or any component thereof, or any of the ideas upon which
the PCMS is based.
7
i •
8. New Information
In the event that Licensee, during the use, opera-
tion or implementation of the PCMS in its computer system
creates, develops or discovers programs, procedures, techniques
or ideas which, if implemented into the system will in any way
enhance the system, then Licensee shall promptly disclose same to
Licensor. Licensor shall have the sole and exclusive right to
incorporate those programs, procedures, techniques or ideas or
into the PCMS and the sole and exclusive right to market, sell,
transfer or franchise said programs, procedures, techniques or
ideas transferred to it pursuant to this paragraph.
9. Assignment
Neither this agreement, nor any interests therein
shall be assigned by Licensee unless the prior written consent
thereto is first had and received from Licensor. Due to the
nature of the interest of Licensor, Licensor shall have no
obligation whatsoever to give its consent and the parties hereto
agree that Licensor may withhold its consent for any, or no,
reason.
10. Adherence to Programs
Licensee agrees that it will adhere, in all res-
pects, to the instructions, standards, directions and specifi-
cations provided by Licensor in the use, operation and implemen-
tation of the PCMS into its computer system.
L
U
11. Severability of Provisions
If any provision of this agreement is held to be
illegal or invalid by any tribunal in a final decision from which
no appeal is, or can be taken, such provision shall be deemed
modified to eliminate the invalid element and, as so modified,
such provision shall be deemed a part of this agreement as though
originally included herein. The remaining provisions of this
agreement shall not be effected by such modification.
12. Extent of Agreement
This agreement represents the entire agreement
between Licensor and Licensee and supersedes all prior negotia-
tions, representations or agreements, either written or oral.
This agreement may be amended by a written instrument signed by
Licensor and Licensee.
13. Notices
All notices under this agreement shall be in writ-
ing and may be given by personal delivery or by mail, first
class, postage pre -paid, addressed to Licensor at:
City of Newport Beach
3300 Newport Blvd.,
Newport Beach, California 92663
Attention: Data Processing
or to Licensee at:
City of Palm Springs
3200 E. Tahquitz - McCallum Way
Palm Springs, California 92262
Attention: Data Processing
7
0 0
or at such other address as either party may designate in a no-
tice to the other. Any notice given by mail shall be considered
given when deposited in the U.S. Mail, postage pre -paid and ad-
dressed as provided herein.
APPROVED AS TO FORM:
obert H. Burnham
City Attorney
City of Newport Beach
Licensee
THE CITY OF NEWPORT BEACH
By • A"
Licensor
THE CITY OF PALM SPRINGS
By
Norman King, (;Aty Manager
APPROVED AS TO FORM: -
' A JUDITH SU1lirt
CLERK
William J. Adavmvs
City Attorney
City of Palm Springs
APPROVED BY THE CITY COUNCj�J /7
AGP /PCMS DYJ�ET. NO.
/// � ., 141 � •
10
E
0
CITY OF NEWPORT BEACH
P.O. BOX 1768, NE %%'PORT BEACH, CA 92663 -3884
April 29, 1983
City of Palm Springs
3200 E. Tahquintz- McCallum Way
Palm Springs, CA 92262
Attn: Data Processing Dept.
OFFICE OF THE CITY CLERK
(714) 640 -2251
Subject: Parking Control Management Systems License Agreement
Enclosed are the original and 2 copies of the Modification to the
Parking Control Management Systems License Agreement between the
City of Newport Beach and the City of Palm Springs. The Modification
was approved by the City Council on April 25, 1983.
Please execute the original and copies. Retain one copy for your
records and return the other two to our office.
If you have any questions, please do not hesitate to call.
Sincerely,
Wanda E. Andersen
City Clerk
WEA:lr
enclosures (3)
cc: Data Processing Dept.
3300 Newport Boulevard, Newport Beach
LICENSE AGREEMENT
THIS AGREEMENT, made and entered into thisiil day
of 1983, by and between THE CITY OF NEWPORT BEACH, a
Municipal Corporation and Charter City (hereinafter "Licensor ")
and THE CITY OF PALM SPRINGS, a Charter City and Municipal
Corporation (hereinafter "Licensee ") is made with reference to
the following facts, the materiality and existance of which is
stipulated and agreed by the parties hereto:
A. Licensor has developed a computer program for the
management of parking and citations issued by a municipality,;
B. This computer program has been designated by
Licensor as the Parking Citation Management System (hereinafter
PCMS) and the system allows a municipality to keep track of
parking citations from the date of issuance to the date on which
the citations are cleared, a process which may take as long as
two years and may involve numerous separate actions by various
State and local agencies;
C. The PCMS, which consists of approximately 40 pro-
grams, each of which must interface with the other programs in
the system for correct operation, was developed only after the
expenditure, by Licensor, of approximately $40,000.00, and the
0
I]
expenditure of approximately 3,200 hours by employees of
Licensor;
D. Licensor proposes to authorize the use of the PCMS
by Licensee and to do so upon receipt of consideration which will
serve to defray the costs and expenses heretofore incurred by
Licensor;
E. Licensor may wish to engage in efforts to market
the PCMS to other municipalities and will agree to authorize the
use of the PCMS by Licensee only upon obtaining appropriate
assurance that the system will not be disclosed or revealed by
Licensee and that Licensor retains all rights to market and /or
sell the system.
F. Licensee is willing to accept the right to utilize
the PCMS upon the terms and conditions contained within this
License Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of Licensor
Subject to the terms and conditions contained here-
in, Licensor agrees as follows:
(a) To provide Licensee with copies of source
modules for the PCMS sufficient to allow Licensee to fully imple-
ment the PCMS into Licensee's existing computer system;
(b) To assist Licensee in implementing the PCMS
2
0
into Licensee's current computer system, provided', however, any
services rendered by Licensor, or the employees, agents,
representatives or officers thereof, in excess of eight (8) hours
on Licensee's site, not inclusive of travel time, shall be
reimbursed by Licensee at the rate of $45.00 per hour, per
person, and provided further, that Licensee shall reimburse
Licensor for any and all expenses incurred by Licensor or its
employees, agents, representatives or officers;
(c) Licensor shall promptly provide Licensee with
any amendment to, addition to, alteration of, refinement of, or
expansion of, the PCMS, which has been developed by Licensor, or
its officers, agents, employees or representatives, and which, in
the opinion of Licensor, will assist Licensee in the.operation of
the PCMS.
(d) Licensor shall also promptly provide Licensee
with any amendment to, addition to, alteration of, refinement of,
or expansion of, the PCMS, which has been developed by any firm,
person, entity or corporation to which rights to the PCMS have
been granted by Licensor, which amendment, addition, alteration,
refinement or expansion has been provided to Licensor.
2. Duties of Licensee
Licensee agrees as follows:
(a) Licensee shall pay to Licensor the sum of
3
0
$6,500.00 within fifteen days from the date on which Licensee re-
ceives the source modules for the PCMS;
(b) Licensee further agrees to reimburse Licensor,
at the rate of $45.00 per hour, per person, for all services
rendered by Licensor, or the officers, agents, representatives or
employees thereof, in excess of eight (8) hours on Licensee's
site, not inclusive of travel time,, which are related, in any
way, to the operation or implementation of the PCMS, and Licensee
further agrees to reimburse Licensor for any expenses incurred by
Licensor or its officers, agents, employees or representatives
that are, in any way, related to the duties and obligations of
Licensor pursuant to this agreement.
3. Use of System
The Licensee hereby acknowledges and agrees that
Licensor is the owner of all proprietary rights in and to the
PCMS, and each and every part thereof, and the material and
information that is now, or hereafter, provided or revealed to
Licensee under this agreement and relating to the PCMS. Licensee
further acknowledges that the PCMS, and the material and informa-
tion of which it is comprised, is being revealed to Licensee in
confidence. Licensee understands and agrees that it acquires no
rights whatsoever pursuant to this agreement to sell, market,
transfer, convey, disclose or reveal the PCMS or any portion or
4
0
part thereof to any other person or entity, and that the rights
it receives pursuant to this agreement are limited to the right
to use the PCMS in the performance of municipal functions.
Accordingly, Licensee agrees as follows:
(a) Neither Licensee nor its officers, employees,
agents or representatives shall disclose, reveal, sell, market,
convey any portion of the PCMS to any other person or entity and
Licensee hereby covenants and agrees to keep and respect the
confidence pursuant to which the PCMS has been disclosed to
Licensee;
5. Default and Termination
Duties After Termination
(a) Termination by Licensee
Licensee may terminate this agreement, at any
5
(b) Licensee
shall not, either during
or after the
term of
this agreement,
do anything, or aid or assist or
encourage any other person
or party to do anything,
which would
infringe
upon, harm, injure, or contest the rights
of Licensor
with regard to the PCMS, or
any component thereof.
4. Term
This agreement shall continue in full force and
effect,
unless and until,
terminated as provided
in paragraph
five (5)
below.
5. Default and Termination
Duties After Termination
(a) Termination by Licensee
Licensee may terminate this agreement, at any
5
0 0
time, by giving to Licensor written notice of such termination
not less than 30 days prior to the date of termination. Licensee
shall not, in the event of such termination, be relieved from
performance of the covenants and promises which are set forth in
paragraphs 2, 3, 6, 7, and 9 of this Agreement. In the event of
termination by Licensee, Licensee shall retain the rights to use
the PCMS, but Licensor shall no longer be obligated to perform
any of the duties required by this Agreement, including, but not
limited to, the obligation to provide Licensee with refinements
to the PCMS and the obligation to provide services to assist
Licensee in the operation or implementation of the PCMS.
(b) Termination by Licensor
(1) In the event that Licensee fails to make
any payment of money owed to Licensor, when due, and such default
is not totally cured within 30 days after Licensor gives written
notice of such default to Licensee, then Licensor may terminate
this agreement at any time thereafter by giving written notice of
such termination to Licensee, and, further, Licensor may pursue,
against Licensee, any legal remedies then available to Licensor;
(2) In the event that Licensee fails to per-
form any obligation imposed upon Licensee by virtue of the terms
and conditions set forth in paragraph 3, Licensor may terminate
this agreement at any time thereafter by giving written notice of
11
• 0
such termination and Licensee shall have no right to cure such
default in performance.
6. Liability
Licensor has made no representations or promises to
Licensee that implementation of the PCMS in the computer system
maintained by Licensee will result in any benefit whatsoever to
Licensee. Licensor has also made no representations to Licensee
concerning the suitability of the PCMS for the computer system
maintained by Licensee and Licensor shall, in no way, be respon-
sible nor liable for any loss, claim, injury or damage that may
be incurred by Licensee that is, in any way, related to the PCMS
or the implementation thereof. Licensee further agrees to hold
Licensor harmless, and indemnify and defend Licensor, with regard
to any claim, loss, litigation or damage that may be alleged to
have resulted from the PCMS, or the implementation, operation or
use thereof by Licensee.
7. Non - Exclusive Use
Licensee stipulates and agrees that the right con-
ferred upon it by this agreement are non - exclusive, and in no way
restrict the ability of Licensor to sell, transfer, market, fran-
chise, or otherwise convey, to any other person, or entity, the
PCMS, or any component thereof, or any of the ideas upon which
the PCMS is based.
E
0 0
8. New Information
In the event that Licensee, during the use, opera-
tion or implementation of the PCMS in its computer system
creates, develops or discovers programs, procedures, techniques
or ideas which, if implemented into the system will in any way
enhance the system, then Licensee shall promptly disclose same to
Licensor. Licensor shall have the sole and exclusive right to
incorporate those programs, procedures, techniques or ideas or
into the PCMS and the sole and exclusive right to market, sell,
transfer or franchise said programs, procedures, techniques or
ideas transferred to it pursuant to this paragraph.
9. Assignment
Neither this agreement, nor any interests therein
shall be assigned by Licensee unless the prior written consent
thereto is first had and received from Licensor. Due to the
nature of the interest of Licensor, Licensor shall have no
obligation whatsoever to give its consent and the parties hereto
agree that Licensor may withhold its consent for any, or no,
reason.
10. Adherence to Programs
Licensee agrees that it will adhere, in all res-
pects, to the instructions, standards, directions and specifi-
cations provided by Licensor in the use, operation and implemen-
tation of the PCMS into its computer system.
9
0
11. Severability of Provisions
If any provision of this agreement is held to be
illegal or invalid by any tribunal in a final decision from which
no appeal is, or can be taken, such provision shall be deemed
modified to eliminate the invalid element and, as so modified,
such provision shall be deemed a part of this agreement as though
originally included herein. The remaining provisions of this
agreement shall not be effected by such modification.
12. Extent of Agreement
This agreement represents the entire agreement
between Licensor and Licensee and supersedes all prior negotia-
tions, representations or agreements, either written or oral.
This agreement may be amended by a written instrument signed by
Licensor and Licensee.
13. Notices
All notices under this agreement shall be in writ-
ing and may be given by personal delivery or by mail, first
class, postage pre -paid, addressed to Licensor at:
City of Newport Beach
3300 Newport Blvd.,
Newport Beach, California 92663
Attention: Data Processing
or to Licensee at:
City of Palm Springs
3200 E. Tahquitz- McCallum Way
Palm Springs, California 92262
Attention: Data Processing
E
0
or at such other address as either party may designate in a no-
tice to the other. Any notice given by mail shall be considered
given when deposited in the U.S. Mail, postage pre -paid and ad-
dressed as provided herein.
APPROVED AS TO FORM:
Robert H. Burnha
City Attorney
City of Newport Beach
APPROVED AS TO FORM:
William J. Adams
City Attorney
City of Palm Springs
AGP /PCMS
Licensee
THE CITY OF NEWPORT BEACH
By
Licensor
THE CITY OF PALM SPRINGS
By
Norman King, City Manager
10
OFFICE OF THE CITY ATTORNEY
April 18, 1983
BY THE CITY COUNCIL
CITY OF NEWPORT BEACH
OR 2 51983
Agenda Item No, E3 (C)
To: Honorable Mayor & Members of the City Council
From: Robert H. Burnham - City Attorney
Re: Agreemwnt kith City of Palm Springs to License Parking
Control ifieYtance system
On January 19, 1983, the City Council approved the form
and content of a License Agreement pursuant to which the City of
Palm Springs would be authorized to utilize the Parking Control
Maintenance System developed by our Data Processing staff. The
License Agreement approved by the City Council was then
transmitted to representatives of the City of Palm Springs for
their review.
The City of Palm Springs has advised us that, with one
major exception, the proposed agreement is acceptable to them.
The major exception is the provision in the original
agreement which obligated the City of Palm Springs to pay
$250,000 in the event they disclosed or revealed the PCMS to any
other person or entity. After determining that their position
was firm in this regard, this office revised the agreement to
eliminate the liquidated damages provision and to clarify, and
strengthen, provisions of the agreement which prevent the City of
Palm Springs from taking any action which would interfere with
the ability of the City of Newport Beach to market this system.
• •
We have attached a copy of the revised License
Agreement to this memo and it is our opinion that the revised
agreement adequately protects the interests of the City. We have
also recirculated a copy of the previous memorandum on this
subject.
RECOMMENDATIONS
It is recommended that the City Council approve the
form and content of the License Agreement attached to this
memorandum, and authorize the Mayor and City Clerk to execute the
agreement after it has been approved by appropriate
representatives and officials of the City of Palm Springs.
R bert H. Burnham
City Attorney
V
_.
3 v
Agenda Item No.
MEMORANDUM
OFFICE OF THE CITY ATTORNEY
January 18, 1983
To: Honorable Mayor & Members of the City Council
From: Robert H. Burnham - Acting City Attorney
Re: Parking Control Maintenance System
Agreement with the City of Palm Springs
BACKGROUND
Ted Kramp and his staff have developed a computer
system (PCMS) to manage and control parking citations issued by
Enforcement Personnel of the City of Newport Beach. Development
of the PCMS resulted from the expenditure of approximately 3,200
hours of staff time, direct expenditures approximating $5,000.00,
and related expenditures in the area of $35,000.00.
Implementation of the PCMS results in savings, to the
City of Newport Beach, of approximately $125,000.00, money
previously paid to a contractor to manage parking citations. The
PCMS also generates up to $75,000.00 in additional revenue
because of the ability of the City to more closely monitor and
control disposition of parking citations. It is reasonable to
assume that similar savings would accrue to other agencies able
to implement this system.
The City of Palm Springs has expressed a keen interest
in obtaining the PCMS. Mr. Kramp and representatives of Palm
Springs have, subject to Council approval, tentatively agreed to
terms for the disclosure of the system.
At the request of Mr. Kramp, this office has prepared a
"License Agreement ", a copy of which is attached to this
memorandum as Exhibit "A ". The important provisions of this
Agreement can be summarized as follows:
r
1. The City of Palm Springs would pay $6,500.00 to the City
of Newport Beach;
2. The City of Newport Beach would provide all of the
information necessary for them to implement the PCMS
into their computer and limited assistance with respect
to implementation; and
3. A liquidated damages provision in the sum of $250,000.00
in the event of any disclosure, by the City of Palm
Springs, of the contents of the PCMS.
The reason for the significant penalty for disclosure
of the contents of the system is the interest expressed by Sperry
Univac in possibly purchasing the_PCMS system and associated
concepts. Without such a provision, the value of the PCMS to the
City of Newport Beach would be lost.
RECOMMENDATION
It is recommended that the City Council approve the
format and concept of the "License Agreement" and authorize the
Mayor and City Clerk to execute the Agreement after it has been
approved by the City of Palm Springs.
RHB /pr
MMP /Parking
2
Robert A. Burnham
Acting City Attorney
R]
LICENSE AGREEMENT
THIS AGREEMENT, made and entered into this , day
of , 1983, by and between THE CITY OF NEWPORT BEACH, a
Municipal Corporation and Charter City (hereinafter "Licensor ")
and THE CITY OF PALM SPRINGS, a Charter City and Municipal
Corporation (hereinafter "Licensee ") is made with reference to
the following facts, the materiality and existance of which is
stipulated and agreed by the parties hereto:
A. Licensor has developed a computer program for the
management of parking and citations issued by a municipality;
B. This computer program has been designated by
Licensor as the Parking Citation Management System (hereinafter
PCMS) and the system allows a municipality to keep track of
parking citations from the date of issuance to the date on which
the citations are cleared, a process which may take as long as
two years and may involve numerous separate actions by various
State and local agencies;
C. The PCMS, which consists of approximately 40 pro-
grams, each of which must interface with the other programs in
the system for correct operation, was developed only after the
expenditure, by Licensor, of approximately $40,000.00, and the
9 0
expenditure of approximately 3,200 hours by employees of
Licensor;
D. Licensor proposes to authorize the use of the PCMS
by Licensee and to do so upon receipt of consideration which will
serve to defray the costs and expenses heretofore incurred by
Licensor;
E. Licensor may wish to engage in efforts to market
the PCMS to other municipalities and will agree to authorize the
use of the PCMS by Licensee only upon obtaining appropriate
assurance that the system will not be disclosed or revealed by
Licensee and that Licensor retains all rights to market and /or
sell the system.
F. Licensee is willing to accept the right to utilize
the PCMS upon the terms and conditions contained within this
License Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of Licensor
Subject to the terms and conditions contained here-
in, Licensor agrees as follows:
(a) To provide Licensee with copies of source
modules for the PCMS sufficient to allow Licensee to fully imple-
ment the PCMS into Licensee's existing computer system;
(b) To assist Licensee in implementing the PCMS
2
7
0 0
into Licensee's current computer system, provided, however, any
services rendered by Licensor, or the employees, agents,
representatives or officers thereof, in excess of eight (8) hours
on Licensee's site, not inclusive of travel time, shall be
reimbursed by Licensee at the rate of $45.00 per hour, per
person, and provided further, that Licensee shall reimburse
Licensor for any and all expenses incurred by Licensor or its
employees, agents, representatives or officers;
(c) Licensor shall promptly provide Licensee with
any amendment to, addition to, alteration of, refinement of, or
expansion of, the PCMS, which has been developed by Licensor, or
its officers, agents, employees or representatives, and which, in
the opinion of Licensor, will assist Licensee in the operation of
the PCMS.
(d) Licensor shall also promptly provide Licensee
with any amendment to, addition to, alteration of, refinement of,
or expansion of, the PCMS, which has been developed by any firm,
person, entity or corporation to which rights to the PCMS have
been granted by Licensor, which amendment, addition, alteration,
refinement or expansion has been provided to Licensor.
2. Duties of Licensee
Licensee agrees as follows:
(a) Licensee shall pay to Licensor the sum of
3
e 0 0
$6,500.00 within fifteen days from the date on which Licensee re-
ceives the source modules for the PCMS;
(b) Licensee further agrees to reimburse Licensor,
at the rate of $45.00 per hour, per person, for all services
rendered by Licensor, or the officers, agents, representatives or
employees thereof, in excess of eight (8) hours on Licensee's
site, not inclusive of travel time,, which are related, in any
way, to the operation or implementation of the PCMS, and Licensee
further agrees to reimburse Licensor for any expenses incurred by
Licensor or its officers, agents, employees or representatives
that are, in any way, related to the duties and obligations of
Licensor pursuant to this agreement.
3. Use of System
The Licensee hereby acknowledges and agrees that
Licensor is the owner of all proprietary rights in and to the
PCMS, and each and every part thereof, and the material and
information that is now, or hereafter, provided or revealed to
Licensee under this agreement and relating to the PCMS. Licensee
further acknowledges that the PCMS, and the material and informa-
tion of which it is comprised, is being revealed to Licensee in
confidence. Licensee understands and agrees that it acquires no
rights whatsoever pursuant to this agreement to sell, market,
transfer, convey, disclose or reveal the PCMS or any portion or
4
4
part thereof to any other person or entity, and that the rights
it receives pursuant to this agreement are limited to the right
to use the PCMS in the performance of municipal functions.
Accordingly, Licensee agrees as follows:
(a) Neither Licensee nor its officers, employees,
agents or representatives shall disclose, reveal, sell, market,
convey any portion of the PCMS to any other person or entity and
Licensee hereby covenants and agrees to keep and respect the
confidence pursuant to which the PCMS has been disclosed to
Licensee;
(b) Licensee shall not, either during or after the
term of this agreement, do anything, or aid or assist or
encourage any other person or party to do anything, which would
infringe upon, harm, injure, or contest the rights of Licensor
with regard to the PCMS, or any component thereof.
4. Term
This agreement shall continue in full force and
effect, unless and until, terminated as provided in paragraph
five (5) below.
5. Default and Termination
Duties After Termination
(a) Termination by Licensee
Licensee may terminate this agreement, at any
3
us
0 0
time, by giving to Licensor written notice of such termination
not less than 30 days prior to the date of termination. Licensee
shall not, in the event of such termination, be relieved from
performance of the covenants and promises which are set forth in
paragraphs 2, 3, 6, 7, and 9 of this Agreement. In the event of
termination by Licensee, Licensee shall retain the rights to use
the PCMS, but Licensor shall no longer be obligated to perform
any of the duties required by this Agreement, including, but not
limited to, the obligation to provide Licensee with refinements
to the PCMS and the obligation to provide services to assist
Licensee in the operation or implementation of the PCMS.
(b) Termination by Licensor
(1) In the event that Licensee fails to make
any payment of money owed to Licensor, when due, and such default
is not totally cured within 30 days after Licensor gives written
notice of such default to Licensee, then Licensor may terminate
this agreement at any time thereafter by giving written notice of
such termination to Licensee, and, further, Licensor may pursue,
against Licensee, any legal remedies then available to Licensor;
(2) In the event that Licensee fails to per-
form any obligation imposed upon Licensee by virtue of the terms
and conditions set forth in paragraph 3, Licensor may terminate
this agreement at any time thereafter by giving written notice of
N
such termination and Licensee shall have no right to cure such
default in performance.
6. Liability
Licensor has made no representations or promises to
Licensee that implementation of the PCMS in the computer system
maintained by Licensee will result in any benefit whatsoever to
Licensee. Licensor has also made no representations to Licensee
concerning the suitability of the PCMS for the computer system
maintained by Licensee and Licensor shall, in no way, be respon-
sible nor liable for any loss, claim, injury or damage that may
be incurred by Licensee that is, in any way, related to the PCMS
or the implementation thereof. Licensee further agrees to hold
Licensor harmless, and indemnify and defend Licensor, with regard
to any claim, loss, litigation or damage that may be alleged to
have resulted from the PCMS, or the implementation, operation or
use thereof by Licensee.
7. Non - Exclusive Use
Licensee stipulates and agrees that the right con-
ferred upon it by this agreement are non - exclusive, and in no way
restrict the ability of Licensor to sell, transfer, market, fran-
chise, or otherwise convey, to any other person, or entity, the
PCMS, or any component thereof, or any of the ideas upon which
the PCMS is based.
7
iz
0
8. New Information
In the event that Licensee, during the use, opera-
tion or implementation of the PCMS in its computer system
creates, develops or discovers programs, procedures, techniques
or ideas which, if implemented into the system will in any way
enhance the system, then Licensee shall promptly disclose same to
Licensor. Licensor shall have the sole and exclusive right to
incorporate those programs, procedures, techniques or ideas or
into the PCMS and the sole and exclusive right to market, sell,
transfer or franchise said programs, procedures, techniques or
ideas transferred to it pursuant to this paragraph.
9. Assignment
Neither this agreement, nor any interests therein
shall be assigned by Licensee unless the prior written consent
thereto is first had and received from Licensor. Due to the
nature of the interest of Licensor, Licensor shall have no
obligation whatsoever to give its consent and the parties hereto
agree that Licensor may withhold its consent for any, or no,
reason.
10. Adherence to Programs
Licensee agrees that it will adhere, in all res-
pects, to the instructions, standards, directions and specifi-
cations provided by Licensor in the use, operation and implemen-
tation of the PCMS into its computer system.
L'
13
• !
11. Severability of Provisions
If any provision of this agreement is held to be
illegal or invalid by any tribunal in a final decision from which
no appeal is, or can be taken, such provision shall be deemed
modified to eliminate the invalid element and, as so modified,
such provision shall be deemed a part of this agreement as though
originally included herein. The remaining provisions of this
agreement shall not be effected by such modification.
12. Extent of Agreement
This agreement represents the entire agreement
between Licensor and Licensee and supersedes all prior negotia-
tions, representations or agreements, either written or oral.
This agreement may be amended by a written instrument signed by
Licensor and Licensee.
13. Notices
All notices under this agreement shall be in writ-
ing and may be given by personal delivery or by mail, first
class, postage pre -paid, addressed to Licensor at:
City of Newport Beach
3300 Newport Blvd.,
Newport Beach, California 92663
Attention: Data Processing
or to Licensee at:
City of Palm Springs
3200 E. Tahquitz - McCallum Way
Palm Springs, California 92262
Attention: Data Processing
E
or at such other address as either party may designate in a no-
tice to the other. Any notice given by mail shall be considered
given when deposited in the U.S. Mail, postage pre -paid and ad-
dressed as provided herein.
APPROVED AS TO FORM:
Robert H. Burnham
City Attorney
City of Newport Beach
APPROVED AS TO FORM:
William J. Adams
City Attorney
City of Palm Springs
AGP /PCMS
Licensee
THE CITY OF NEWPORT BEACH
Lo
Licensor
THE CITY OF PALM SPRINGS
Norman King, City Manager
�i7
Hu)
r
A.
Agenda Item No. F-9( )
Gm h-`
,� MEMORANDUM
P•S d 1983 OFFICE OF THE CITY ATTORNEY
JA
CCIJHCIL
�IJ January 18, 1983
To: Honorable Mayor & Members of the City Council
From:
Re:
Robert H. Burnham - Acting City Attorney
Ted Kramp and his staff have developed a computer
system (PCMS) to manage and control parking citations issued by
Enforcement Personnel of the City of Newport Beach. Development
of the PCMS resulted from the expenditure of approximately 3,200
hours of staff time, direct expenditures approximating $5,000.00,
and related expenditures in the area of $35,000.00.
Implementation of the PCMS results in savings, to the
City of Newport Beach, of approximately $125,000.00, money
previously paid to a contractor to manage parking citations. The
PCMS also generates up to $75,000.00 in additional revenue
because of the ability of the City to more closely monitor and
control disposition of parking citations. It is reasonable to
assume that similar savings would accrue to other agencies able
to implement this system.
The City of Palm Springs has expressed a keen interest
in obtaining the PCMS. Mr. Kramp and representatives of Palm
Springs have, subject to Council approval, tentatively agreed to
terms for the disclosure of the system.
At the request of Mr. Kramp, this office has prepared a
"License Agreement ", a copy of which is attached to this
memorandum as Exhibit "A ". The important provisions of this
Agreement can be summarized as follows:
1. The City of Palm Springs would pay $6,500.00 to the City
of Newport Beach;
1
2. The City of Newport Beach would provide all of the
information necessary for them to implement the PCMS
into their computer and limited assistance with respect
to implementation; and
3. A liquidated damages provision in the sum of $250,000.00
in the event of any disclosure, by the City of Palm
Springs, of the contents of the PCMS.
The reason for the significant penalty for disclosure
of the contents of the system is the interest expressed by Sperry
Univac in possibly purchasing the PCMS system and associated
concepts. Without such a provision, the value of the PCMS to the
City of Newport Beach would be lost.
RECOMMENDATION
It is recommended that the City Council approve the
format and concept of the "License Agreement" and authorize the
Mayor and City Clerk to execute the Agreement after it has been
approved by the City of Palm Springs.
RHB /pr
MMP /Parking
2
Robert H. Burnham
Acting City Attorney
LICENSE AGREEMENT
THIS AGREEMENT, made and entered into this _ day
of , 1983, by and between THE CITY OF NEWPORT BEACH, a
Municipal Corporation and Charter City (hereinafter "Licensor ")
and THE CITY OF PALM SPRINGS, a Charter City and Municipal
Corporation (hereinafter "Licensee ") is made with reference to
the following facts, the materiality and existance of which is
stipulated and agreed by the parties hereto:
A. Licensor has developed a computer program for the
management of parking and citations issued by a municipality;
B. This computer program has been designated by the
City as the Parking Citation Management System (hereinafter PCMS)
and the system allows a municipality to keep track of parking
citations from the date of issuance to the date on which the
citations are cleared, a process which may take as long as two
years and may involve 40 separate actions by various State and
local agencies;
C. The PCMS, which consists of approximately 40 pro-
grams, each of which must interface with the other programs in
the system for correct operation, was developed only after the
expenditure, by Licensor, of approximately $40,000.00, and the
3
`I
standard for determining the validity of a provision in a con-
tract liquidating damages for the breach thereof and that this
contract is not one for the purchase or rental of services for
personal, family or household purposes. The parties also sti-
pulate and agree that it would be impracticable or extremely
difficult to fix the actual damage sustained by Licensor in the
event of the disclosure by Licensee, or any employee, agent,
representative or officer of Licensee, and that the liquidated
damages provided herein approximate, to the extent possible, the
actual damages that would be sustained by Licensor in the event
of a breach by Licensee.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of Licensor
Subject to the terms and conditions contained here-
in, Licensor agrees as follows:
(a) To provide Licensee with copies of source
modules for the PCMS sufficient to allow Licensee to fully imple-
ment the PCMS into Licensee's existing computer system;
(b) To assist Licensee in implementing the PCMS
into Licensee's current computer system, provided, however, any
services rendered by Licensor, or the employees, agents,
representatives or officers thereof, in excess of eight (8)
hours, shall be reimbursed by Licensee at the rate of $45.00 per
3
4
standard for determining the validity of a provision in a con-
tract liquidating damages for the breach thereof and that this
contract is not one for the purchase or rental of services for
personal, family or household purposes. The parties also sti-
pulate and agree that it would be impracticable or extremely
difficult to fix the actual damage sustained by Licensor in the
event of the disclosure by Licensee, or any employee, agent,
representative or officer of Licensee, and that the liquidated
damages provided herein approximate, to the extent possible, the
actual damages that would be sustained by Licensor in the event
of a breach by Licensee.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of Licensor
Subject to the terms and conditions contained here-
in, Licensor agrees as follows:
(a) To provide Licensee with copies of source
modules for the PCMS sufficient to allow Licensee to fully imple-
ment the PCMS into Licensee's existing computer system;
(b) To assist Licensee in implementing the PCMS
into Licensee's current computer system, provided, however, any
services rendered by Licensor, or the employees, agents,
representatives or officers thereof, in excess of eight (8)
hours, shall be reimbursed by Licensee at the rate of $45.00 per
3
hour, and provided further, that Licensee shall reimburse
Licensor for any and all expenses incurred by Licensor or its
employees, agents, representatives or officers;
(c) Licensor shall provide Licensee with any
amendment to, addition to, alteration of, refinement of, or
expansion of, the PCMS, which has been developed by Licensor, or
its officers, agents, employees or representatives, and which, in
the opinion of Licensor, will assist Licensee in the operation of
the PCMS.
2. Duties of Licensee
Licensee agrees as follows:
(a) Licensee shall pay to Licensor the sum of
$6,500.00 within five days from the date on which Licensee re-
ceives the source modules for the PCMS;
(b) Licensee further agrees to reimburse Licensor,
at the rate of $45.00 per hour, for all services rendered by
Licensor, or the officers, agents, representatives or employees
thereof, in excess of eight (8) hours, which are related, in any
way, to the operation or implementation of the PCMS, and Licensee
further agrees to reimburse Licensor for any expenses incurred by
Licensor or its officers, agents, employees or representatives
that are, in any way, related to the duties and obligations of
Licensor pursuant to this agreement.
4
J
6 4
3, Use of System
The Licensee hereby acknowledges and agrees that
Licensor is the owner of all proprietary rights in and to the
PCMS, and each and every part thereof, and the material and
- information that is now, or hereafter, provided or revealed to
Licensee under this agreement and relating to the PCMS. Licensee
further acknowledges that the PCMS, and the material and informa-
tion of which it is comprised, is being revealed to Licensee in
confidence. Accordingly, Licensee agrees as follows:
(a) Neither Licensee nor its officers, employees,
agents or representatives shall disclose or reveal any portion of
the PCMS to any other person or entity and Licensee hereby cove-
nants and agrees to keep and respect the confidence pursuant to
which the PCMS has been disclosed to Licensee;
(b) Neither Licensee nor any officer, agent, em-
ployee or representative thereof, shall, in any way, duplicate or
copy the PCMS, or any portion thereof, or any component thereof;
(c) Licensee shall not, either during or after the
term of this agreement, do an
9 , anything, g, or aid or assist any other
party to do anything, which would infringe upon, harm, or contest
the rights of Licensor with regard to the PCMS, or any component
thereof.
5
I
6 6
4. Term
This agreement shall continue in full force and
effect, unless and until, terminated as provided in paragraph
below.
5. Default and Termination
(a) Termination by Licensee
Licensee may terminate this agreement, at any
time, by giving to Licensor written notice of such termination
not less than 30 days prior to the date of termination. Licensee
shall not, in the event of..such termination, be relieved from the
covenants and promises contained within this agreement that re-
late to the use of the system and which are set forth in para-
graph _ of this agreement.
(b) Termination by Licensee
(1) In the event that Licensee fails to make
any payment of money owed to Licensor, when due, and such default
is not totally cured within 30 days after Licensor gives written
notice of such default to Licensee, then Licensor may terminate
this agreement at any time thereafter by giving written notice of
such termination to Licensee, and, further, Licensor may pursue,
against Licensee, any legal remedies then available to Licensor;
(2) In the event that Licensee fails to per-
form any obligation imposed upon Licensee by virtue of the terms
9
•
and conditions set forth in paragraphs _ and _, franchisor may
terminate this agreement at any time thereafter by giving written
notice of such termination and Licensee shall have no right to
cure such default in performance. Further, in the event of such
a breach Licensee shall be obligated to
g pay to Licensor, the sum ,
of Two Hundred Fifty Thousand Dollars ($250,000.00) which sum
shall be due and payable within 30 days from the date on which
I
i notice of the breach is mailed to Licensee.
6. Liability
i
Licensor has-made no representations or promises to
Licensee that implementation of the PCMS in the computer system
maintained by Licensee will result in any benefit whatsoever to
Licensee. Licensor has also made no representations to Licensee
concerning the suitability of the PCMS for the computer system
maintained by Licensee and Licensor shall, in no way, be respon-
sible nor liable for any loss, claim, injury or damage that may
be incurred by Licensee that is, in any way, related to the PCMS
or the implementation thereof. Licensee further agrees to hold
Licensor harmless, and indemnify and defend Licensor, with regard
to any claim, loss, litigation or damage that may be alleged to
I
have resulted from the PCMS, or the implementation, operation or
use thereof by Licensee.
7
7. Non - Exclusive Use
0
Licensee stipulates and agrees that the right con-
ferred upon it by this agreement are non - exclusive, and in no way
restrict the ability of Licensor to sell, transfer, market, fran-
chise, or otherwise convey, to any other person, or entity, the
PCMS, or any component thereof, or any of the ideas upon which
the PCMS is based.
8. New Information
In the event that Licensee, during the use, opera-
tion or implementation of the PCMS in its computer system
creates, develops or discovers programs, procedures, techniques
or ideas which, if implemented into the system will in any way
enhance the system, then Licensee shall immediately disclose same
to Licensor. Licensor shall have the sole and exclusive right to
incorporate those programs, procedures, techniques or ideas or
into the PCMS and the sole and exclusive right to market, sell,
transfer or franchise said programs, procedures, techniques or
ideas transferred to it pursuant to this paragraph.
9. Assignment
Neither this agreement, nor any interests therein
shall be assigned by franchisee unless the prior written consent
thereto is first had and received from Licensor. If such consent
is given, franchisee shall continue to be obligated for the per-
0
/D
formance of franchisee's obligations hereunder, notwithstanding
the grant of such consent. Due to the nature of the interest of
Licensor, Licensor shall have no obligation whatsoever to give
its consent and the parties hereto agree that Licensor may with-
hold its consent for any, or no, reason.
10. Adherence to Programs
Licensee agrees that it will adhere, in all
respects, to the instructions, standards, directions and specifi-
cations provided by Licensee in the use, operation and implemen-
tation of the PCMS into its-computer system.
11. Severability of Provisions
If any provision of this agreement is held to be
illegal or invalid by any tribunal in a final decision from which
no appeal is, or can be taken, such provision shall be deemed
modified to eliminate the invalid element and, as so modified,
such povision shall be deemed a part of this agreement as though
originally included herein. The remaining provisions of this
agreement shall not be effected by such modification.
12. Extent of Agreement
This agreement represents the entire agreement
between Licensor and Licensee and supersedes all prior negotia-
tions, representations or agreements, either written or oral.
This agreement may be amended by a written instrument signed by
Licensor and Licensee.
9
13. Notices
All notices under this agreement shall be in writ-
ing and may be given by personal delivery or by mail, first
class, postage pre -paid, addressed to Licensor at:
City of Newport Beach
3300 Newport Blvd.,
Newport Beach, California 92663
Attention: Data Processing
or to Licensee at:
City of Palm Springs
3200 E. Tahquitz
McCallum Way
Palm Springs, California 92262
Attention: Data Processing
or at such other address as either party may designate in a
notice to the other. Any notice given by mail shall be consider-
ed given when deposited in the U.S. Mail, postage pre -paid and
addressed as provided herein.
/P-
Licepsee
City of Newport Beach
Licensor
City of Palm Springs
By
10