HomeMy WebLinkAbout2000-12-06 Agenda Packet - Board (11) Agenda Item #10
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Memorandum
To: Board of Directors
From: Ian Fitzgerald—GIS Coordinator
Date: December 6, 2000
Data Exchange Licence Agreement
Background
Recently, we have being getting interest in our GIS information, which we are currently
compiling, from Engineer firms, Town of Truckee, Truckee Sanitary District, Nevada
County, and Environmental groups, among others. There is now knowledge of our
efforts to create a highly accurate, highly precise land base of our service area. There
are also ongoing talks with many public agencies in the county of Nevada to create a
Data Consortium where agencies would share their information. We have, and will over
the next year, put a lot of time, money, and effort to develop a Geographic Information
System, which will give us accurate records of our facilities and customers, as well as
develop a competative edge in our industry for this area. To maintain the GIS
information's integrity and value, maintain our competative edge, and allow access to
our information by Public Agencies, Engineer firms, and others, I feel we must take
measures to protect our information.
Legal Counsel Report (Appendix A)
Our legal council at Porter Simon has researched the validity of the TDPUD protecting
its GIS information. There seems to be no precedent regarding GIS information within a
Public Utility in California, although other states have deemed GIS information within a
Public Utility to be non-public records. The statutes in California do, however, protect
Public agency's "Mapping Systems"; a statue we feel fits our cause. Attached is a copy
of the Legal Report stating why and how we protect our GIS information.
Supporting Data (Appendix B)
To add validity to our claim, I have compiled some costs involved to create the GIS
information. The costs are broken down into actual dollars spent by the District as well
as possible costs involved if consultants accomplished the work. The dollar values
alone give a good sense of what we would be saving our competitors if the information
were not protected. In addition, I have included a Utility comparison to develop an
understanding on why I believe a GIS improves our competitive edge.
Page 1 December 6f2000 Agenda Item 10
Resolution (Appendix C)
Attached is the resolution, if approved, would permit the exchange of GIS information
between ourselves and our partners in the communitiy. At the same time, the "Data
Exchange License Agreement" will allow TDPUD to maintain full control of our GIS
information to ensure the integrity and value of the information without compromising our
competitive edge within the Utility and Broadband industries. As a benefit, the "Data
Exchange Agreement", will give the TDPUD access to the most recent GIS information
available in the County and undoubtably position TDPUD as the information hub of the
Town of Truckee and parts of Placer County.
Recommendation
I recommend that the Board authorize a Resolution approving the "Data Exchange
License Agreement", allowing us to readily exchange information with our partners,
without fear of losing the GIS information's integrity, value or completive edge.
Page 2 December 6/2000 Agenda Item 10
Appendix A
- W
MEMORANDUM
DATE: December 1, 2000
TO: Ian Fitzgerald, GIS Coordinator TDPUD
cc: Peter Holzmeister, General Manager TDPUD
FROM: Steve Gross and Andy Morris, District Counsel
RE: Applicability of Public Records Act to GIS Data
INTRODUCTION
We have reviewed the draft Data Exchange Agreement that TDPUD will use to
control exchanges of Geographic Information Systems (GIS) data with other parties. One
of the principal aims of the Data Exchange Agreement is to limit the dissemination of
TDPUD's GIS data to third parties by parties or entities who have received GIS data
from TDPUD, as well as limiting the uses to which the data may be put by the recipients
of the data. Since TDPUD is a public agency,the workings of which are generally
public,the goal of keeping strict controls on the distribution of GIS data raises the
question of whether GIS data must be disclosed to the public pursuant to the California
Public Records Act(PRA), Government Code Sections 6250-6270'.
'All statutory references in this memorandum are to the Government Code.
Page I December 612000 Agenda Item 10 Appendix A
QUESTIONS PRESENTED
1. Absent some applicable exemption,is GIS data subject to disclosure
under the PRA?
2. What statutory exemptions might apply?
3. Can TDPUD successfully use the statutory exemptions to shield GIS
data from disclosure?
CONCLUSIONS
1. Yes, absent some exemption such information is generally available to the
public under the Public Records Act.
2. Certain utility customer information is specifically exempt from disclosure
under the PRA, and disclosure of"computer software" is likewise exempt.
3. Yes,the combination of the utility customer information exemption and
computer software exemption should protect the GIS data.
DISCUSSION
A. General Applicability of PRA to GIS Data
1. Legal Background
Public records in the State of California must generally be made available for
public inspection during office hours, or produced upon request at the expense of the
requesting party if they are voluminous. §6253. "Public records" includes any document,
file,or records containing information relating to the conduct of public business, and
which is prepared,owned,used,or retained by any state or local agency,regardless of the
physical form or format in which the information is kept. §6252(d) Courts have
construed this definition broadly, and the exemptions fairly narrowly, in keeping with the
PRA's aim of mandating broad public access to public records.
The fact that TDPUD's GIS data would be valuable to private entities that are in
direct competition with TDPUD does not seem to remove GIS data from the category of
records to which the PRA applies. Two recent court cases,State Board of Equalization v.
Page 2 December 6l2000 Agenda Item 10 Appendix A
Superior Court(1992) 10 Cal.AppAth 1177 and Connell v. Superior Court(1997) 56
Cal.App.4th 601, have held that the motive of a requesting party is irrelevant to the
determination of whether particular information is subject to disclosure. The essence of
the holdings of these cases was later added to the Government Code by the Legislature as
§6257.5. Although disclosure of public information to competitors of the public agencies
generating the information is a growing concern both in California and across the United
States2,we have found no California cases addressing the subject.
2. Fees TDPUD Can Charge for Producing GIS Data Subject to
PRA
If no exemption applies, not only will TDPUD have to disclose its GIS data upon
request,but also it will not be able to recapture the cost of developing the databases.
Formerly, only"direct costs of duplication"could be charged to the requesting party.
Since §6253.9 was created in September of this year, where a PRA request requires data
compilation, extraction, or programming,the cost of the necessary staff time can be
charged to the requesting party. §6253.9(b). This provision may be relevant if TDPUD
receives a request for information that is contained within data exempted from disclosure,
but can be extracted from the exempt data.
B. Statutory Exemptions to Disclosure Requirements
1. Utility Customer Information Exemption
An exemption for"the name, credit history, utility usage data,home address, or
telephone number of utility customers of local agencies"was added to the Government
2According to a paper published by the University of Maine and available at
(htt2,f/'s2atial.maine.edu/tempe/2gterson html,htmll,a number of states have tried to grapple
with GIS disclosure issues. Minnesota now permits public agencies to charge for
information based on its commercial value. Kentucky has recently exempted GIS data
from disclosure, and in North Carolina, seekers of public information may be required to
agree in writing that GIS information will not be used for commercial purposes. Other
states, including Virginia and Florida,have considered the matter and decided not to
enact any special protections for GIS data. There appears to be no national consensus or
federal law on the subject.
Page 3 December 6/2000 Agenda Item 10 Appendix A
Code in 1997 as §6254.16. This exemption has not subsequently been cited by any
reported California case of which we are aware. Based on what Ian has told us about the
GIS data, a major component of the data which TDPUD wishes to protect would appear
to be protected under this exemption. This protected component is the facilities
data, which includes and is partially based upon customer names, addresses,and utility
usage information. The facilities data is linked to and partially comprised of the
protected customer information within the Geodatabase. It appears to be the case that
since the customer information is an inherent part of the facilities data,both visually and
through a relational database, it is not possible to disclose facilities data without also
disclosing customer information,much as it is not possible to eat bread without eating the
flour that forms a component part of the bread. Since customer information seems to
be inextricably linked to and incorporated by the facilities data, and customer
information is protected,the facilities data would seem to be protected by the utility
customer exemption.
An important caveat to this conclusion is that to the extent that facilities data can
be produced without using utility customer data,the data is not shielded from disclosure.
Under the PRA, if the portions of records which are exempted from disclosure can be
segregated,the remainder of the records must be disclosed upon request. So while the
bulk of the facilities data might be protected from disclosure, if there are segregable
portions that are not otherwise exempt from disclosure (see below),those portions might
be subject to disclosure.
2. "Computer Software"Exemption
Another exemption exists for"computer software developed by a state or local
agency". Not only is computer software not a public record, but public agencies may
sell, lease, or license the software for commercial or noncommercial use. §6254.9(a). As
used in this section"computer software" includes"computer mapping systems,computer
programs,and computer graphics systems". Unfortunately, our research has uncovered
no explication of what this might actually mean. The specific inclusion of"computer
mapping systems"would seem to imply that GIS information was intended to be exempt
from disclosure, as would the provision that public agencies may sell, lease, or license
Page 4 December 6/2000 Agenda Item 10 Appendix A
information exempt under this section. The true tests are (1)whether TDPUD's GIS data
can be made to fit under the"computer mapping systems,computer programs, and
computer graphics systems" exemption, and(2) whether TDPUD's GIS data can be said
to have been"developed"by TDPUD.
a. GIS Data as"Computer Software"
The first requirement that will have to be met to protect the GIS data from
disclosure by using this exemption is that the GIS data must qualify as"computer
software". Since for purposes of the §6254.9(a)definition of"computer software",
"computer mapping systems" and"computer programs" are included, it appears that
TDPUD's GIS data is protected.
GIS data can be thought of at an elementary level as a computer mapping system,
although it has applications so far exceeding simple mapping that calling GIS a mapping
system is somewhat akin to calling a Cray-2 supercomputer a calculator. The impact of
the additional tools and features of GIS data is that the various and sundry types of data
available are presented and related to each other as a real world model of physical
features of the land and facilities, such as parcels of property, streets, and surface
topology. GIS never holds maps in the conventional sense,but instead holds a database
of coordinates and associated attributes with accuracies approaching one foot.
Due to the complexity of GIS information, it is not accurate to say(as it might be
with other computer software and data)that the data itself can be cleanly and neatly
separated from the software. Although TDPUD uses various types of off-the-shelf
software,these are used in conjunction with some customized software and organized
using data models developed specifically for TDPUD, both in-house by Ian and by
outside consultants. The upshot of the use of various types of software and data models,
is that rather than simply amassing or generating data,TDPUD employs a true system.
This conclusion is supported by both the Webster's Dictionary definition of"system" as
"a group of interacting, interrelated, or interdependent elements forming a complex
whole",and by a definition of GIS produced by Tom Poiker, a respected professional in
the GIS industry. Poiker describes GIS as the interaction of three important elements:
Page 5 December 6/2000 Agenda Item 10 Appendix A
"Computer system(hardware and software), geographically or spatially referenced data,
and management and analysis procedures."3 The first criterion of the §62549 test thus
appears to be met.
b. GIS System as "Developed" by'TDPUD
Although the TDPUD GIS data does appear to be part of a"computer mapping
system" such as would qualify for exemption from disclosure under the PRA,the
information to be protected must also have been"developed"by TDPUD. It seems clear
in this case that TDPUD has in fact developed the GIS system currently in use.
Besides the facilities data,the other large segment of TDPUD's GIS information
is the land base data. The genesis of TDPUD's land base data was information
purchased commercially from Automated Mapping Systems (AMS). This information
was basic"line work",or depictions of property parcels, streets,and some natural
features. Since certain conditions in the purchase contract with AMS were met,there is
now no contractual restriction on the disclosure of this early AMS data.
However,the AMS data was quite basic,not based upon any real-world
coordinates, and not entirely accurate. TDPUD has since pegged the land base to real-
world coordinates, corrected it,and developed and added numerous other upgrades,such
as integration of aerial photographs,pavement information, and building footprints into
the land base, as well as developing critical attribute information linked to the spatial
information. "These additions and revisions have been both expensive and time-
consuming,and the process of adding them clearly gives TDPUD the right to claim that it
has "developed"the finished product, such that it would be exempt from disclosure under
§6254.9.
One other fundamental attribute of GIS information bolsters the idea that TDPUD
has"developed"its GIS data within the meaning of the statute. GIS information is
inherently dynamic;the databases require and receive constant updates to keep them
'Poiker,Tom. LWGIS, Course I-GIS:An Overview.Simon Fraser University,4 b Edition, 1999
Page 6 December 6/2000 Agenda Item 10 Appendix A
accurate (and thus useful)as real-world conditions change. Development is thus
ongoing,a constant process,and the GIS information in use at any time represents the
cumulative efforts of TDPUD from the inception of its GIS system up to the present day.
The upshot of all this is that constant development is perhaps an even better rationale for
shielding GIS information from disclosure than a single isolated development process
would be. If a particular PRA request ever proceeded to litigation,a court might be more
likely to protect a fluid,ever-changing source of information such as GIS than a static,
lifeless collection of data.
Since public agencies which have received PRA requests have a statutory
obligation to segregate and disclose information that is not exempt from disclosure,it is
conceivable that there could be a request for disclosure of the original AMS land base.4
If TDPUD has any copies of this in its computer system,this would probably have to be
disclosed under the PRA. However, if no copies of the original AMS land base exist,but
the bare-bones land base could be extracted from what will be the fully integrated
Geodatabase5,the land base thus extracted would still appear to be exempt from
disclosure. This is because TDPUD had to do a fair amount of work to make the land
base usable, including pegging it to real-world coordinates,and there is no way to remove
that development work from the land base.
C. Conclusions
It appears to be the case that the utility customer records exemption and the
computer software exemption to PRA disclosure requirements,used in conjunction,
should effectively shield TDPUD's GIS data from PRA requests. The facilities data
4Even without the additions and improvements made by TDPUD,the original
AMS land base apparently does have some value.
5The Geodatabase will be the end product, incorporating the land base, facilities
data,various data models, and a customer information database. Once completed,the
Geodatabase will be the central repository for TDPUD's GIS information as an Oracle
database. In this format,it would not be possible to separate the data without losing
relationships,topology and information. As of the date of this memorandum,the process
of integrating the land base into the Geodatabase is ongoing.
Page 7 December 6/2000 Agenda Item 10 Appendix A
comprises one big segment of GIS data,and since it seems to have customer information
fully integrated into it,the utility customer information exemption should protect it. The
land base data is the other big segment of GIS data, and it appears to be exempt from
disclosure as"computer software"developed by TDPUD. The land base seems to
qualify for this exemption because it is basically a key component of a"computer
mapping system", and because TDPUD did indeed develop it, going to great lengths to
do so.
In addition to these major components of the information TDPUD would like to
shield from disclosure,the customer information database to be used in the
Geodatabase seems clearly protected under the utility customer information exemption.
The various data models used by TDPUD in organizing GIS data were mostly either
custom-designed for TDPUD or developed in-house, which should entitle them to
protection as"computer software". TDPUD does use some standard data models
developed by manufacturers of GIS software,but these are both unlikely to be the
subjects of PRA requests and probably protected as trade secrets of the software
manufacturers. Finally,the Geodatabase itself would seem to be largely immune from
disclosure, as its component parts(facilities data,land base,customer information
database,and data models) seem to all be exempt.
It should be borne in mind that while we believe TDPUD's GIS data to be
largely exempt from disclosure under the PRA,the proper determination of
whether a given request may be legally rejected depends heavily upon the precise
records requested. The most prudent course of action for TDPUD to take upon receipt
of any GIS-related PRA request would be to carefully scrutinize each request to
determine whether any of the requested information can be shielded from disclosure. As
District Counsel,we would be happy to assist TDPUD in evaluating any such request.
The PRA is amended with surprising frequency, and new or revised statutes could
supersede analysis that is accurate today.
Page 8 December 612000 Agenda Item 10 Appendix A
Appendix B
GIS System: Costs Involved?
Where Monev is Spent Actual Costs Possible Costal
Obtained Data
2 163269 209549
Improvements3 64650 360215.24
Software 142846.36 142846.36
Hardware 46000 36000
Application Customizations 52800 150000
Implementation 22800 50000
Total 467365.36 958610.56
Costs to Create a GIS
$800 000 ✓tea ✓
$600 000 `✓ n �. � �✓ � c �v
$400 000 '-cam "5-sx "�. ��"✓ - .. ..:," -...-.
I ®Actual Costs
$200 000
®Possible Costs .
$0 .
a N o N
m m w 3 0 @
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0 3 o m
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Where Money is Spent
Costs if completely done by outside consultants.
a Costs are totaled from data obtained over the last 2 years. For Possible Costs,the Osmose bid for Pole collection is
added.
'Actual Costs:Improvements,Application Customization,and Implementation take into account my salary along with
outside consulting. Improvements also take into account 25%of Joe Straub salary for Pole collection.
'Based on a Data Conversion formula I developed at QC Data and Dimension4,Inc.plus data correction efforts.
s Possible Costs for Application Customization and Implementation are approximations based on my 5 year experience
in the industry.Most likely they are higher.
Page 1 December 6/2000 Agenda Item 10 Appendix B
GIS System: Value?
Market Value
The market value for the finished GIS information at least has to cover the cost to
produce the information. Taking into consideration the costs to produce this information
in the private sector, the data portion alone is $569, 764.6 Because most of the effort
and resources involved, as well as its importance, were in the Land Base portion, it is
conceivable to allocate 50% of this cost to the Land Base information or approximately
$285,000. With both the Water and Electric Facilities involving equal effort and
importance, it is conceivable to allocated 25%for each facility information or
approximately $142,500. These costs represent the information's value on the open
market.
r
Value of Geo-spatial Technology in a Utility
Approach: Compare Utilities doing GIS well versus those not involved with GIS or
those involved but with questionable data.
Criteria: Utilities must have high accuracy in their data, be involved in GIS for more
than 5 Years, and be a Geo-spatial Information Technology Association
(GITA) award winner.
Distribution O&M Distribution capital
YRicustomer 1997/1ine mile YRicustomer 19971IIne mile
vera a of 85 com anies 67.8 3,319.0 105.5 5,030.0
ward winners
Detroit Ediso 70.6 3,364.0 115.0 5,511.0
Illinois Powe 72.1 1,908.0 104.8 2,772.0
PSC 33.5 1,999.0 76.0 4,039.0
San Die o G& 31.4 2,833.0 84.4 7,614.0
Texas Utilitie 52 0 51.2 1,6 . 109.0 3,525.00
vera a of award winners 51.8 2,351.2 97.8 4,692.2
vera a of 80 others 68.8 3,379.49 106.0 5,051.11
I6Improvement 260 30% 80 70f
Findings Having high data accuracy with a solid foundation in a GIS system can and
will give a utility a competitive edge, by as much as 30%, in it's industry.
6 Addition of Obtained Data and Data improvements from Section 3.1.
'Presentation given by Chuck Howard,President of GMT,Smaliworld 2000 Conference,Las Vegas
Page 2 December 6I2000 Agenda Item 10 Appendix B
Appendix C
Data Exchange License Agreement
THIS LICENSE AGREEMENT (hereinafter referred to as the "AGREEMENT") made and
dated this day of 2000, by and between TRUCKEE
DONNER PUBLIC UTILITY DISTRICT (hereinafter referred to as the" District"), a Public
Utility District organized and operating pursuant to California Public Utilities Code
Section 15501, et seq., with offices at 11570 Donner Pass Road, Truckee, California and
a with offices at
, (hereinafter referred to as " Recipient"). Each or
both may also hereinafter be referred to as the "Party" or"Parties" respectively.
WHEREAS, the District represents that it possesses certain technical, digital,
documentary, Land Base, Facility, photographic, or other information or data which the
District considers proprietary to it and relates to its Geographic Information System
(GIS) data base (hereinafter referred to as " PROPRIETARY INFORMATION"), and
WHEREAS, Recipient desires to use portions of the District's PROPRIETARY
INFORMATION for the purposes of developing maps and mapping applications, and
Recipient desires to obtain the right to use the District's PROPRIETARY INFORMATION
and updates thereto in exchange for;
A. Access to Recipient's GIS database, as updated. The access shall consist of
supplying requested Land Base data, aerial photos, and/or Facility data.
B. Authorization to use GIS information obtained from Recipient to update and
augment the District's PROPRIETARY INFORMATION.
C. Maps and other types of data developed with the aid of the District's
PROPRIETARY INFORMATION.
R insert after "in exchange for" deleting
a license fee in the amount of $ , which license fee shall be paid to the
District by Recipient prior to the provision of any PROPRIETARY INFORMATION.
WHEREAS, it is recognized that in anticipation of any current or future need to share
information or coordinate projects between the Parties, it may be both necessary and
desirable that the District provide to Recipient the above-described PROPRIETARY
INFORMATION.
NOW, THEREFORE, in consideration of these promises, and of the mutual promises
and covenants contained herein, the Parties hereto agree as follows:
1. The District shall provide to Recipient certain PROPRIETARY INFORMATION for
LIMITED USE ONLY as set forth in Section 3 of this Agreement, including
requested Land Base, Aerial Photos, andlor Facility Data. The PROPRIETARY
INFORMATION to be disclosed by the District may be contained in documents,
electronic media (Arclinfo Geodatabase, Arcview Shapefile, DXF and/or .TIF
format only), and other materials.
Page I December 6/2000 Agenda Item 10 Appendix C
2. The Parties hereto agree that the District retains all right, title, and interest in and
to the disclosed PROPRIETARY INFORMATION and that Recipient is not
hereby granted any right, license or interest in the PROPRIETARY
INFORMATION, except as specifically provided in this Agreement. Recipient
shall not distribute, sell, license, or reproduce the PROPRIETARY
INFORMATION, except as specifically set forth herein. The District shall be
under no obligation as a result of this Agreement to disclose any PROPRIETARY
INFORMATION other than the PROPRIETARY INFORMATION listed in Exhibit
A, attached.
3. The District grants Recipient the right to make limited public disclosure of the
PROPRIETARY INFORMATION obtained from the District. This disclosure may
include posting data on any website operated or controlled by Recipient,
producing and distributing posters using the data, publishing articles relying on or
citing the data, or such other types of disclosure as the District may authorize in
advance in writing. Any disclosure or release of data obtained from the District
shall attribute the data to the District; such attribution shall take the form of text
incorporated into example maps and drawings and summary data tables as well
as all project reports, papers, and articles presented or published for public
disclosure. Such authorized disclosure of information shall in no way operate to
modify Recipient's obligation to protect the propriety nature of other
PROPRIETARY INFORMATION in accordance with the terms of this
AGREEMENT. All information disclosed pursuant to this paragraph shall no
longer be deemed PROPRIETARY INFORMATION in accordance with
paragraph 8c, but this reclassification, as nonproprietary information shall only
affect the particular form in which the PROPRIETARY INFORMATION is
disclosed. (Limited disclosure of PROPRIETARY INFORMATION as permitted
pursuant to this AGREEMENT shall not change the proprietary character of the
PROPRIETARY INFORMATION, but the District shall have no proprietary
interest in the example maps, drawings, summary data tables, or other forms in
which the PROPRIETARY INFORMATION is disclosed.)
43he District is not providing, nor is Recipient obtaining, the right to make copies of
the PROPRIETARY INFORMATION furnished pursuant to this AGREEMENT,
except that Recipient may make backup copies for its own use. Recipient shall
also not obtain as a result of this Agreement the right to make the District's
PROPRIETARY INFORMATION available to or distribute to third parties in either
computer or non-computer readable form, except as set forth in Paragraph 3, or
the right to use the District's PROPRIETARY INFORMATION for purposes of
design, analysis, or any information gathering for third parties. The District
reserves the entire right to reproduce and make available to others, on such
terms and conditions as the District may determine, the District's PROPRIETARY
INFORMATION in either computer or non-computer readable form. The points of
contact for the parties with respect to the provision of PROPRIETARY
INFORMATION are as follows:
Page 2 December 6/2000 Agenda Item 10 Appendix C
FOR Truckee Donner Public Utility District
Geographic System Information Coordinator
P.O. Box 309
11570 Donner Pass Road,
Truckee, California 96160
530-582-3952
For
Name:
Title:
Address:
City:
Phone:
5. Recipient shall further restrict disclosure of such PROPRIETARY INFORMATION
to only those employees who have a job-related need for the PROPRIETARY
INFORMATION and who have been advised of and agreed to the restrictions on
disclosure and use. Upon discovery by Recipient of any unauthorized use or
disclosure, Recipient shall immediately notify the District and shall endeavor to
prevent further unauthorized use or disclosure.
6. In the event of any breach of this AGREEMENT by Recipient, Recipient agrees
that injunctive relief will be essential for the District's protection. Accordingly, the
District and Recipient agree and consent that in the event of any breach or violation
of this AGREEMENT, the District may obtain such injunctive relief, in addition to any
other legal remedy and/or damages, as it believes necessary in order to prevent any
continued violation of the terms of this AGREEMENT. Recipient further
acknowledges that any disclosure of PROPRIETARY INFORMATION in breach of
this AGREEMENT may result in substantial damages to the District, and that the
District has the right to initiate legal action to recover its damages in the event of
such a breach. In the event that the District based on this AGREEMENT seeks
injunctive relief, Recipient further agrees to waive the requirement that the District
post a bond or other security.
7. Any PROPRIETARY INFORMATION delivered by the District to Recipient
pursuant to this AGREEMENT shall be for use solely as specified above. No other
use of PROPRIETARY INFORMATION may be made without the prior written
consent of The District.
Page 3 December 6/2000 Agenda Item 10 Appendix C
8. Recipient's obligations with respect to disclosing and using PROPRIETARY
INFORMATION, as set forth in this AGREEMENT, are not applicable to any such
information or data if same is:
a. In the public domain at the time of receipt or comes into the public domain
thereafter through no act of Recipient in breach of the AGREEMENT, or
b. Known to Recipient prior to disclosure by the District, or
c. Disclosed with the prior written approval of the District, or
d. Independently developed, without aid from the District's PROPRIETARY
INFORMATION, by Recipient, or
e. Lawfully disclosed to Recipient by a third party under conditions
permitting such disclosure, or
f. Made available by the District to a third party without restriction.
9. The term of this AGREEMENT shall be for as Tong as the information is in
possession of Recipient, or until the District supplies Recipient with new
PROPRIETARY DATA, or until terminated by either Party. The District shall have
the right to terminate the AGREEMENT upon 30 days notice to Recipient.
10. Upon expiration or termination of this AGREEMENT, in accordance with its
terms, Recipient will, within a reasonable period of time thereafter, return all
PROPRIETARY INFORMATION received from the District under this AGREEMENT
along with all copies thereof, or certify in writing that all such PROPRIETARY
INFORMATION has been destroyed.
11. PROPRIETARY INFORMATION transmitted to Recipient pursuant to this
AGREEMENT shall not constitute any representation, warranty, assurance,
guarantee or inducement by the District to Recipient that any patent or other
proprietary intellectual property rights owned or controlled by any third party have not
been infringed, and nothing in this AGREEMENT shall be construed as a warranty or
representation of any kind with respect to the content or accuracy of data,
documents and information transmitted by the District under this AGREEMENT.
12, Recipient agrees to indemnify and hold harmless the District against any and all
claims, causes of action or damages, liabilities, or attorneys' fees brought as a result
of or arising from Recipient's use of the PROPRIETARY INFORMATION.
13. The Parties hereto agree that any suits or claims arising from this AGREEMENT
shall be brought in the County of Nevada, State of California.
14. This AGREEMENT shall be governed by and interpreted in accordance with the
laws of the State of California.
Page 4 December 6f2000 Agenda Item 10 Appendix C
15. This AGREEMENT contains the entire understanding between the Parties
relative to the protection of PROPRIETARY INFORMATION and supersedes all prior
and collateral communication, reports, and understandings between the Parties in
respect thereto. No change to, modification of, alteration of, or addition to any
provision hereof shall be binding unless in writing and signed by authorized
representatives of both Parties.
16. This AGREEMENT shall apply in lieu of and notwithstanding any specific legend
or statement associated with the PROPRIETARY INFORMATION, and the duties of
the Parties shall be determined exclusively by the aforementioned terms and
conditions.
17. If Recipient is a public agency subject to the disclosure requirements of
the California Public Records Act (California Government Code Sections 6250-
6270), the federal Freedom of Information Act, or any other state legislation which
would require public disclosure of the PROPRIETARY INFORMATION upon request,
Recipient shall notify the District immediately of any and all Public Records Act
requests received regarding the PROPRIETARY INFORMATION. The District will
respond within five (5) business days and inform Recipient of the District's approval
or disapproval of disclosure. In the event that the District disapproves of disclosure,
the District will hold Recipient harmless against any legal challenges to
nondisclosure of the PROPRIETARY INFORMATION. The decision of the District
concerning the applicability or inapplicability of the Public Records Act to a given
request for information shall be final. Disclosure of PROPRIETARY INFORMATION
by Recipient in response to a Public Records Act request where the District has
determined that the requested information is not subject to disclosure shall constitute
a breach of this AGREEMENT.
The duly authorized officers of the Parties have executed this AGREEMENT on the
date first set forth above.
Truckee Donner Public Utility District
By:
Date:
ATTEST:
Recipient:
By:
Date:
ATTEST:
Page 5 December 6/2000 Agenda Item 10 Appendix C