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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