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HomeMy WebLinkAboutRes.3067.04-03-2017 BILL NO. 17-42 RESOLUTION NO. 30 7 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH CLEAR CHOICES CLEAN WATER, LLC, FOR USE OF THE CLEAR CHOICES CLEAN WATER PROGRAM AND MATERIALS, IN THE CITY OF CAPE GIRARDEAU, MISSOURI BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Agreement with Clear Choices Clean Water, LLC, for use of the Clear Choices Clean Water Program and Materials, in the City of Cape Girardeau, Missouri. The Agreement shall be in substantially the form attached hereto as Exhibit A, which document is hereby approved by the City Council, with such changes therein as shall be approved by the officers of the City executing the same. n{ PASSED AND ADOPTED THIS 3 DAY OF ICAPO , 2017 . ry E. ediger, Mayor ATTEST: ( f 4 r 4. t„ 4Bruce Taylor, Deputy City Clerk fl AV k cies t. : � rc„,. f CLEAR CHOICES CLEAN WATER LICENSE AGREEMENT This license agreement is dated of 2017 between CLEAR CHOICES CLEAN WATER, LLC (Clear Choices),an Indiana limited liability company, and CIT" OF CAPE GIRARDEAU (Licensee),a municipal government entity. Clear Choices developed and owns educational materials including websites, documents, records, programs, data, film, articles, memoranda and other promotional materials, to promote wise water stewardship,which are collectively entitled the Clear Choices Clean Water Program (Clear Choices Program). The Licensee desires to license components of the Clear Choices Program from Clear Choices and allow the Licensee Partners to also utilize the Clear Choices Program. The Parties have agreed to enter into this agreement in order to grant the Licensee and the Licensee Partners the non-exclusive rights to utilize the Clear Choices Program. The parties therefore agree as follows: Article I License 1.1 License During the License Period (as defined below), Clear Choices grants to the Licensee a nonexclusive and nontransferable license to use the Clear Choices Program (License).The License includes the following: (1) creation of a unique and personalized subdomain website of Clear Choices Clean Water and up to twelve hours of material customization support and training (2) use and promotion of the interactive subdomain CapeGirardeau.clearchoicescleanwaterorg website and provided logos.The Licensee will be given administrative access to the website on or before March 15, 2017.Within ninety days of being granted administrative access to the website,the Licensee will make the website available to the public, (3) up to four pledge modules for the Licensee's customized website selected from Clear Choices' existing pledge modules with minimal modifications(significant changes to the pledge form mechanics of any pledge can be made for an agreed-to price, as interest may exist); additional pledge modules can be added for$1,500 during the first two years of the License Period and for an agreed-to price after the first two years (4) initial licensee consultation and help incorporating Clear Choices into existing education programs,websites, or both totaling up to twelve hours (S) use of all existing collateral materials that support individual pledges and the program as a whole; these can be customized with modified text, maps, or photos and can be tagged with affiliates'logos(e.g., postcards, posters, billboards, banners,youth education packet materials, etc,); design adjustments using design files provided by Clear Choices can be done in-house by the Licensee or by Clear Choices staff for a separate fee(adjustments must follow procedures Outlined in the license agreement) (6) use of audio-video files such as radio and television spots, including permission to modify these to include Licensee's names and logos at the conclusion of the spot(Licensee should call Clear Choices for pricing about modifications.) (7) use of any new materials developed within the License Period for selected pledge modules; Clear Choices staff is available to help customize and coordinate production of materials as needed for an additional fee; adjustments must follow procedures outlined in this agreement (8) use of logos,taglines, etc, on promotional materials as well as access to existing design files for promotional materials;these can be customized with affiliates' logos(e.g., seed packets, rain gauges, bookmarks, pet waste bags, etc.); design adjustments can be done in-house by the affiliate or by Clear Choices staff for an additional fee (9) prepared social-media posts for use in social media to promote the program year-round (10) opportunity to participate in annual bulk-buy purchases of select promotional material for material cost-savings (11) basic social-indicator survey template to measure and gauge local audience knowledge and values(additional survey development or customization support is available from Clear Choices staff for an additional fee,) (12) subdomain and affiliate location included on the Clear Choices'national homepage (13) inclusion of Licensee's hyperlink on Clear Choices'national website Partners page (14) instruction manual regarding how to mine data from Licensee's administrative interface to aid in development of an annual report of pledges, pollution reduction numbers, etc. as well as how to make changes to the website; (15) Google analytics dashboard and instructions to assist with review of website use statistics and overall program evaluation; (16) Clear Choices Brand Guide to aid in appropriate and consistent use of licensed materials (17) quarterly customer-service support calls to provide program support and share content, strategy, and/or product updates During the License Period,the parties may list each other, as well as the Licensee Partners, as partners on marketing and other related program materials or documents, 1.2 Limitation to Licensee's Territory This License applies during the License Period to the geographic extent of the following territories (Territory): Cape Girardeau city limits, The Licensee may not use the Clear Choices Program outside of the Territory except to the extent that Licensee makes the Clear Choices Program available on the Internet or social media that extends beyond the Territory or people or entities outside of the Territory make pledges. 1.3 License Period This agreement and the License granted to Licensee by Clear Choices will be effective from May 1, 2017, to April 30, 2019(License Period)subject to Licensee's payment of the fees and termination rights stated in this agreement, 1.4 License Fee in consideration of the granting of the License as described in Section 2,the Licensee will pay Clear Choices a total fee of$10,640.An initial payment of$5320 is due on the date the parties sign this agreement.The remainder is due upon completion of the customizable website and administrative access of the website being granted to the Licensee. 1.5 Standards of Use The Licensee agrees to use the Clear Choices Program and its License only in compliance with the following standards: The intent of the Clear Choices Clean Water program is to promote water-pollution prevention, improved water quality, and increased water conservation.The Clear Choices, Clean Water program and any associated materials and items branded as Clear Choices, Clean Water should not be used in any of the following ways: (1) to promote specific commercial sales that provide profit to a commercial or for-profit entity (2) to provide"green marketing' or"green washing"to any product or projects that have a negative environmental impact (3) advocate or lobby for a specific elected official (4) for any other purposes or uses deemed harmful to Clear Choices or to the environment as determined by Clear Choices or its member entity the Upper White River Watershed Alliance Clear Choices reserves the right to review any unusual or new uses of the Clear Choices brand or materials, and such uses are subject to the written approval of Clear Choices, 1.6 Renewal Licensee has an option to extend the License Period by successive terms of twenty-four months. Licensee must provide written notice that it is exercising this option at least sixty days before the end of the License Period,The renewal fee is the greater of 50 percent of the initial license fee and $6,000, unless Clear Choices provides Licensee written notice of a different renewal fee at least ninety days before the end of the License Period.Clear Choices may also terminate or,require changes to the terryis of this agreernent as a condition of renewal by providing Licensee written notice at least ninety days before the end of the License Period, Article 2 Assignments, Sublicenses, and Transfers 2.1 Nonassignability License is personal to the Licensee and cannot be assigned, sublicensed, or transferred without the express written consent of Clear Choices,which Clear,Choices may grant or deny for any reason. If Clear Choices agrees to allow Licensee to assign,transfer,or sublicense the, License, Licensee will deliver to Clear Choices a copy of each sublicense agreement entered into by Licensee.Any sublicense of the License is subject to this agreement. If Licensee desires to transfer the License, the parties will use reasonable efforts to agree to terms of a transfer. 2.2 Licensee Partners Licensee may allow the following similarly situated partner entities in the Territory(Licensee Partners)the right to use the Clear Choices Program: There are no Licensee Partners proposed at the time of this agreement, Licensee will require the Licensee Partners to comply with all applicable terms of this agreement and will provide a copy of this agreement to the Licensee Partners, If the Licensee desires to add any Licensee Partners not listed in this agreement, Licensee most obtain the written approval of Clear Choices,which may be withheld for any reason. 2.3 Nonexclusivity Clear Choices may license the Clear Choices Program to any other entities or individuals. Article 3 Ownership 3.1 Proprietary Designations Clear Choices owns and may create valuable trademarks,service marks, trade names, logos, taghnes,jingles,and other identifiers,which may be registered or unregistered (collectively,the "Proprietary Designations").Clear Choices will retain ownership of and all rights in and to its own Proprietary Designations. Licensee will not register, directly or indirectly,any trademark, service mark, trade name, company name, Internet domain name, or other proprietary or commercial right that is identical or confusingly similar to the Proprietary Designations of Clear Choices or that constitutes a translation of the Proprietary Designations into any other language, 3.2 Ownership of Clear Choices Program Clear Choices retains exclusive ownership of the Clear Choices Program, all related Proprietary Designations,and the customized websites,Whenever Licensee uses, publishes,or displays any part of the Clear Choices Program or Proprietary Designations, it will indicate that the Clear Choices Program and the Proprietary Designations are owned by Clear Choices and comply with any reasonable request of Clear Choices related to the use, publication, or display. 3.3 Derivative Works Should Licensee or any Licensee Partners create derivative works based on or related to the Clear Choices Program (collectively,"Derivative Works"), Licensee rnUSt promptly notify Clear Choices of the creation.Clear Choices will solely own any Derivative Works unless otherwise agreed to in writing by Clear Choices and the Licensee or Licensee Partner, as applicable. Licensee has the right to use the Derivative Works only during the License Period and subject to the terms of this agreement. Clear Choices, as the owner of the Derivative Works, has the right to use any Derivative Works during and after the License Period, Provided, however, that Licensee intends to create a promotional video, website content on its own website, rack cards, and other Derivative Works for which Licensee will retain ownership after the expiration of the License Period,with the condition that, upon the termination of the License, Licensee will remove any references to or logos of Clear Choices and the Clear Choices program from any Derivative Works, before Licensee uses them for any purpose. Clear Choices will retain the right to use any materials or Derivative Works created by Licensee, Article 4 Confidentiality 4.1 Confidential Information The term "Confidential Information"includes all trade secrets, know-how, intellectual property, financial and business information, proprietary information,and other information that is not generally known and that is used in or relates to the parties' businesses, including the customized website and all code and related information. Confidential Information of a party also includes proprietary information of that party's suppliers, customers, clients, partners,website users,and other third parties who have entrusted their information to that party, Confidential Information does not include information that is independently developed by ernployees of the receiving party who have not had access to or use of Confidential Information of the disclosing party or information that is placed in the public domain by the disclosing party. 4.2 Confidentiality Each party will not use Confidential Information of the other party except to carry out obligations under this agreement.The parties will not use each other's Confidential Information other than as provided in this agreement. Each party will use reasonable efforts to cause its agents and employees to be informed of and to agree to be bound by this agreement's confidentiality provisions and applicable data-privacy laws. 4.3 Use of Confidential Information Each party will not disclose Confidential Information of the other party with the following exceptions (1) to their employees for whom access is necessary to carry out the purposes of this agreement, provided that the employer will be responsible for ensuring their employees' compliance with the obligations of this agreement or (2) in compliance with a requirement of a court,government agency, or law, provided that the complying party will notify the disclosing party immediately upon learning of the requirement to allow the disclosing party an opportunity to take action to protect the confidentiality of the Confidential Information, 4.4 Protection of Confidential Information The parties will maintain physical, electronic, and procedural safeguards to protect the confidentiality and integrity of Confidential Information and to prevent unauthorized access to or use of Confidential Information.The parties will use all reasonable efforts to ensure that the storage and transmission of Confidential Information and any electronic communications will be secure. These reasonable efforts include at least the following: (1) use of user identification and access controls designed to limit access to Confidential Information to permitted users (2) industry standard firewalls regulating all data entering the other party's internal data network from any external source (3) industry standard virus-protection programs and techniques to prevent harmful software code from entering the other party's internal data network or affecting Confidential Information (4) appropriate security controls for external connections to the Internet (5) industry standard encryption techniques for transmitting Confidential Information through the Internet 4.5 Unauthorized Use or Disclosure of Confidential Information Unauthorized use or disclosure of Confidential Information will cause irreparable damage to the disclosing party for which there is no adequate remedy at law.The disclosing party is entitled to immediate injunctive relief. If an unauthorized use or disclosure occurs, the receiving Party will immediately notify the disclosing Party, use best commercially reasonable efforts to recover the Confidential Information, and prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief, 4.6 Records During the License Period and for one year after the License Period, Licensee will maintain records sufficient for Clear Choices to determine Licensee's compliance with this agreement.The records will include any use of the Clear Choices Program, including those items specifically listed in Section M. During the License Period and for one year after the License Period, Clear Choices or its agents may audit the agreements and business records of Licensee or any License Partner to verify compliance with this agreement. 4.7 User Privacy Policy Clear Choices will maintain a privacy policy on its website concerning the collection of users' information,The privacy policy on Clear Choices'website current as of the date of this agreement is attached as Exhibit A.The Licensee's customized website will include a publically viewable privacy policy that is identical except that Licensee's identifying and contact information will be included in place of similar information of Clear Choices, Licensee will comply with the privacy policy, Clear Choices may change the privacy policy for any reason. If any changes are made to the privacy policy Clear Choices will notify Licensee. Licensee will promptly incorporate the changes to its privacy policy. Licensee will take all necessary measures to ensure its employees read, understand,and comply with the privacy policy. Article 5 Noncompetition 5.1 Noncompetition Licensee will not engage in any business that is closely related to the Clear Choices Program for two years following the termination of the License.Closely related business includes an environment- related campaign that educates and collects pledges to take action and user information through a website. Licensee will not use Clear Choices'Confidential Information at any time except as provided in this agreement during the License Period. 5.2 Prohibition against Soliciting Clear Choices Employees Licensee will not solicit any employee of Clear Choices to terminate the employment or employ any Clear Choices employee during the employment with Clear Choices during the License Period and for one year after the employment with Clear Choices or its contractors ends, Article 6 Termination 6.1 Termination for Cause If Licensee breaches or defaults on one or more terms or conditions of this agreement and the breach or default is not cured within thirty days after Licensee receives written notice of the breach or default, Clear Choices may terminate this agreement, Clear Choices may extend the thirty-day period an additional thirty days if Licensee is making a good-faith effort to cure the breach or default, Clear Choices may immediately terminate this agreement in the following circumstances: (1) Licensee breaches this agreement by assigning,transferring, or sublicensing this License without first receiving the written permission of Clear Choices (2) Licensee deviates from the standards of use stated in this agreement in a way that will bring material harm or substantially damage the reputation, integrity,or future use of the Clear Choices Program as determined by Clear Choices (3) Licensee does not comply with the confidentiality, privacy, or noncompetition provisions of this agreement 6.2 Effect of Termination Upon termination of this agreement for any reason, (a)the License will immediately terminate, and access to the customized website will end; (b) Licensee will destroy or return to Clear Choices all copies of the Clear Choices Program in Licensee's possession or control and deliver to Clear Choices an affidavit upon request confirming that these actions have been taken; (c) Licensee's subdomain will be disabled, and the Licensee will no longer have use of Clear Choices materials; and (d) Licensee will pay to Clear Choices all Licensee Fees incurred and remaining unpaid as of the date of termination and as stated in this agreement. 6.3 Provisions Surviving Termination Any provisions of this agreement that by their nature survive termination of this agreement will survive termination of this agreement,These include at least provisions relating to ownership, confidentiality, noncompetition, notices, and interpreting and disputing this agreement. 6.4 Notices All notices under this agreement will be made in writing and sent to the party to which the notice is being provided at the address listed below, by certified or registered mail with return receipt requested, or by a national overnight courier service. If the notice is transmitted by mail or overnight courier service,the date of receipt of the notice will be deemed to be two days after the notice is delivered to the U. S. Postal Service or courier service, If to Clear Choices If to Licensee Clear Choices Clean Water, LLC City of Cape Girardeau c/o White River Alliance c/o Stanley Polivick 1052 Woodlawn Avenue 2007 Southern Expressway Indianapolis, Indiana 46203 Cape Girardeau, MO 63701 With a copy to Plews Shadley Racher& Braun LLP Attn:Curt DeVoe 1346 North Delaware Street Indianapolis, 146202 Article 7 Miscellaneous 7.1 Invalidity If any provision of this agreement, or its application to a person or circumstance, is determined to be invalid by the highest court of competent jurisdiction from which there is no right of appeal or from which no appeal is timely made,the invalid provision will be severed from this agreement, and the parties will continue to be bound by the remaining provisions.The invalidity of any part of a provision of this agreement will not affect the validity of the remainder of the provision or the remaining provisions of this agreement, 7.2 Waiver The failure of the parties at any time to require performance by one another of any provision of this agreement will not be deemed a continuing waiver of that provision or a waiver of any other provision of this agreement and will in no way affect the right to require full performance from one another at any time. 7.3 Entire Agreement and Amendment This writing contains the entire agreement between the parties with respect to the matters described and is a complete and exclusive statement.This agreement supersedes all previous agreements.This agreement may not be amended except by a writing signed by both parties. 7.4 Governing Law This agreement will be interpreted and construed in accordance with and governed by the laws of Indiana without regard to its or any other state's conflict-of-laws doctrine.All actions or proceedings arising or in connection with this agreement will be tried and litigated only in the state and federal courts located in Marion County, Indiana. The parties are signing this agreement on the date stated in the introductory clause. CLEAR CHOICES CLEAN WATER, LLC CITY OF CAPE GIRARDEAU, MID By By jill4offmann Molly Hood Executive Director Assistant City Manager Signature page to Clear Choices, Clean Water License Agreement, 9 ATTACHMENTS Exhibit A- Clear Choices Clean Water Privacy Statement Introduction We respect your privacy and are committed to protecting it through our compliance with this privacy statement. This statement describes the types of information we might collect from you or that you might provide when you visit wvvw,dew ch6cesdeanwateir,org ,or one of the websites using a subdomain of the clearchoicesorg primary domain name (Website).This statement does not apply to information collected in any other way, including offline, through other websites, or through other applications. The pages on our website may contain links to sites maintained by third parties. We do not operate or control these third-party sites, which may have different privacy practices. Children under the age of 13 We do not knowingly collect identifiable personal information from children under thirteen. Unless we expressly state otherwise,we do not intend our Website for children under thirteen. Pages designed for use by children under thirteen do not request or collect personal information as defined by the Children's Online Privacy Protection Act, 15 US,C. §§ 6501-06, Children under age thirteen must not provide any identifying information to or on our Website, Personal information that children under thirteen should not provide includes the following: • first and last name • home or other physical address including street name and name of a city or town • e-mail address • telephone number • Social Security number • any other identifier that permits the physical or online contacting of a specific individual • information concerning the child or the parents of that child that combines with any of these listed identifiers If you are under thirteen,do not use or provide any of this information on our Website or on or through any of its features. If we learn we have collected or received personal information from a child under thirteen without verification of parental consent,we will delete that information. If you believe we might have any information from or about a child under thirteen, please contact us. Personal information we collect We collect several types of information from and about users of our Website.The following are examples of the type of information we collect: • information by which you could be personally identified,for instance your name, address,e-mail address,and information related to action pledges • information that is about you but does not identify you • information about your Internet connection,the equipment you use,and usage details We collect this information in the following ways: • directly from you when you provide it to us 10 • automatically as you navigate through our Website,for example Internet-protocol addresses, information collected through cookies,web beacons,and other tracking technologies • from third parties How do we use your personal information? We don't share any of the personal information you provide with others unless we say so in this statement or when we conclude that the law requires it. We may also disclose your personal information if we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Clear Choices, related entities, or affiliates. We use your address to place pins on our Who Else Is Pledging? map that appears on our Website, The pins show the following information: • location of the address you provide • your first name • your city • which pledge you took • our estimated impact of the actions you pledged to take The map pins do not show your street address, zip code, last name, e-mail, or any other information we collect from you. We keep your information in a database for future reference.We may use certain information you provide to communicate with you about educational information, current events, news, or local events and activities that we believe may be of interest to you. If you don't wish to receive this information,you may opt out(unsubscribe)as described in this statement. We may disclose aggregated information about our users that does not identify any individual without restriction. How do we protect the personal information we collect? We have implemented certain appropriate security measures to help protect your personal information from accidental loss and from unauthorized access, use, or disclosure. For example,we store personal information with restricted access and appropriate monitoring, and we use a variety of technical security measures to secure your data. In addition,we use intrusion-detection and virus- protection software. But please note that we do not guarantee that unauthorized persons will always be unable to defeat our security measures. Also, please note that we may store and process your personal information in systems located outside of your home country. But regardless of where storage and processing may occur,we take appropriate steps to ensure that your information is protected, consistent with the principles explained in this statement. Who has access to the personal information? We will not sell, rent, or lease mailing lists or your personal information to others, and we will not make your personal information available to any unaffiliated parties, except as follows: • to agents or contractors who may use it on our behalf or in connection with their relationship with us(for example,we may use third parties to help us with promotional campaigns), • as required by law, in a matter of public safety or policy,as needed in connection with the transfer of our business assets(for example, if we are acquired by another entity or if we are liquidated during bankruptcy proceedings), or if we believe in good faith that sharing the data is necessary to protect our rights or property. We will not disclose your personal information to unaffiliated third parties, except as necessary to service the account,to enforce the terms of use,to meet our obligations to content and technology providers, or as required by law. We may also use statistics regarding usage for product-development purposes, but we only use those statistics in the aggregate.They don't include any personal information. How may I correct, amend, or delete my personal information or update my preferences? If you would like to change or delete your personal information or update your preferences, please contact us. Questions? If you have any additional questions or concerns related to this statement, please co tact US or mail your request to: Clear Choices Clean Water LLC 1052 Woodlawn Avenue Indianapolis, Indiana 46203 Privacy statement changes Our privacy statement may change at any time. If our information practices change in a significant way,we will post the policy changes here.This privacy statement was last updated on Feb 1,2017. 12