Loading...
IBM Joint Development Agreement_First Amendment 9 7 10Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: IBM Joint Development Agreement No. W0954778 - First Amendment DATE: August 31, 2010 City Attorney Barry Lindahl recommends City Council approval of the First Amendment to the IBM Joint Development Agreement. This amendment clarifies that the Agreement runs through the end of the year versus September 22, 2010, as was in the original Agreement. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Michael C. Van Milligen Dubuque htill NI- America City lilt? 2007 THE CITY OF DUB 7E MEMORANDUM Masterpiece on the Mississippi BARRY LINDA CITY ATTORNEY To: Michael C. Van Milligen City Manager DATE: August 30, 2010 RE: IBM Joint Development Agreement No. W0954778 - First Amendment Attached is a proposed First Amendment to the IBM Joint Development Agreement approved by the City Council on September 21, 2009. The purpose of the amendment is to clarify that the Agreement runs through the end of the year versus September 22, 2010 as was in the original Agreement. The project was late getting started and both parties have agreed to extend the research date. recommend that the First Amendment be submitted to the City Council for consideration and approval. BAL:tls Attachment cc: Dave Lyons, Project Manager F: \USERS \Laserfiche Legal \IBM \IBM Power Fund -AMI Pilot Project\ MVM_ IBMJDAW0954778 _FirstAmendment_083010.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org August 25, 2010 City of Dubuque Mr. David Lyons 50 West 13th Street Dubuque, Iowa 52001 IBM T. J. I Stson Research Center I'O Boy 211E Rio 131 Yorktown Heights, NY /0598 Subject: IBM JOINT DEVELOPMENT Agreement No. W0954778 Amendment No. 1 Dear Mr. Lyons: IBM proposes and City of Dubuque agrees that the above referenced Agreement be amended as follows: 1. The first sentence of Article 6.1 is deleted and replaced with the following: 2. "This Agreement will begin on September 22, 2009 and will end on December 31, 2010, either party may terminate this Agreement upon thirty (30) days' written notice to the other party." All other provisions remain unchanged. This Agreement and its Amendments may be signed in one or more counterparts, each of which shall be deemed to be an original and all of which when taken together shall constitute the same Agreement. Any signed copy of this Agreement and its Amendments made by photocopy, facsimile or PDF Adobe format shall be considered an original. Please indicate City of Dubuque's approval of these terms by having an authorized representative sign and return an original to: Very Truly Yours, International Business Machines Corporation City of Dub ue /� By: a /if Patrick D. Canavan, Manager Business & overnment Relations Date: 24( Holly Conklin, IBM 1101 Kitchawan Road, Office Number 40 -221 Yorktown Heights, New York 10598 Phone at (914) 945 -3278 and Fax at (914) 945 -2460 Accepted and Agreed to: Nam Title: Date: e: y D. Buol Mayor September 7, 2010 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx JOINT DEVELOPMENT AGREEMENT 1.0 Statement of Work Agreement No. W0954778 This Joint Development Agreement ( "Agreement ") is between the city of Dubuque, Iowa, with an address at 50 W. 13 Street, Dubuque, IA, 52001 ( "City"), and International Business Machines Corporation, a New York corporation, through its Thomas J. Watson Research Center, with a location at 1101 Kitchawan Road, Route 134, Yorktown Heights, NY 10598 ( "IBM "). WHEREAS, the City and IBM would like to work together on developing a prototype service accessed using a Web portal for near real -time integrated sustainability monitoring ( "Prototype Service "); and WHEREAS, the City has a sustainability vision and IBM has initiatives around making cities smarter. NOW, THEREFORE, for good and valuable consideration as stated herein, the City and IBM agree as follows: 1.1 The parties will perform the scope of work in Appendix A ( "SOW "). 1.2 The parties agree to jointly prepare quarterly technical status presentations, and a final report summarizing the work performed pursuant to this Agreement. 1.3 The City will provide IBM with a written evaluation report ( "Feedback ") based upon customer feedback and the City's evaluation of the Prototype Service. The content and form of the Feedback will be determined by the Technical Coordinators. The Feedback will be owned by IBM and will be considered IBM Confidential Information. 2.0 Technical Coordinators License No. L095814 2.1 The Technical Coordinators ( "TC ") will be David Lyons for the City and Milind Naphade for IBM. Their responsibilities will include exchanging information with the other party, coordinating any visits, preparing the quarterly technical status presentations, and arranging all other matters pertinent to this Agreement. Each party may change its TC by giving written notice to the other party. The TCs do not have the authority to amend this Agreement. 3.0 Costs and Expenses 3.1 Within ten (10) days of the Effective Date, the City shall pay IBM via wire transfer the amount of $500,000. The City shall wire transfer to IBM an additional amount of $350,000 on July 1, 2010. All payments will be made in US dollars. All payments are non - refundable. 3.2 The parties acknowledge and agree that the source of funds for these payments is the City and that there are no State or Federal funds involved in the project described in the SOW (as may be amended from time to time). 1 of 10 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx 2 of 10 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx 5.0 Inventions 5.1 "Invention" means any idea, design, concept, technique, invention, discovery or improvement, whether or not patentable, conceived or first reduced to practice solely by one or more employees of a party hereto ( "Sole Invention "), or jointly by one or more employees of one party with one or more employees of the other party ( "Joint Invention "), in the performance of work under this Agreement. 5.2 Each party will promptly provide to the other party a written description of each Invention. The other party agrees to delay making public, by publication or otherwise, until the earlier of (1) the first filing of a patent application claiming the Invention by the owning party or (2) six months after the date the Invention is disclosed to the other party, for any Invention for which the disclosing party has decided, or is in the process of deciding, to seek patent protection. 5.3 Any Sole Invention will be the property of the inventing party, subject to a license hereby granted to the other party of the scope set forth in Article 5.4 for such Sole Invention and all patents issued on it. Any Joint Invention will be jointly owned, and title to all patents issued on it will be joint, all expenses (including those related to preparation, prosecution and maintenance) will be jointly shared (except as provided below), and each party will have the right to license and assign its ownership interest in the joint patent to third parties without need for consent from or accounting to the other party. Where one party elects not to share equally in the expenses for a Joint Invention, the other party will have the right to seek or maintain such protection for such Joint Invention at its own expense and will have full control over its preparation, prosecution and maintenance, even though title to any issuing patent will be joint. 5.4 All licenses granted to the City and IBM under this Article 5 will be worldwide, irrevocable, nonexclusive, nontransferable, and fully paid -up, and will include the right to make, have made, use, have used, lease, sell, offer to sell, import and /or otherwise transfer any product, and to practice and have practiced any method. All licenses granted to the City and to IBM in this Article 5 will include the right of the grantee to grant revocable or irrevocable sublicenses to its Subsidiaries, such sublicenses to include the right of the sublicensed Subsidiaries correspondingly to sublicense other Subsidiaries. 5.5 "Subsidiary" will mean a corporation, company, or other entity; i. more than 50% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, now or hereafter, owned or controlled, directly or indirectly, by a party hereto, but such corporation, company, or other entity will be deemed to be a Subsidiary only so long as such ownership or control exists; or ii. which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than 50% of whose ownership interest representing the right to make the decisions for such corporation, company or other entity is now or hereafter, owned or controlled, directly or indirectly, by a party hereto, but such corporation, company or other entity will be deemed to be a Subsidiary only so long as such ownership or control exists. 6.0 Term and Termination 6.1 This Agreement will begin on the date it is signed by the last signatory ( "Effective Date "), and end twelve months later, unless extended by mutual written agreement. 3 of 10 IBM Agmt W0954778 with City of DBQ and SOW091809ba1- IBM.docx 7.0 Confidentiality 7.1 Except as may be provided in this Article 7 and Article 5.2, any information provided by either party under this Agreement will be considered nonconfidential, and each party will be free to use and disclose such information without limitation, subject to each other's valid copyright and patent rights. 7.2 IBM Confidential Information ( "Information ") means the Tool (as defined in the SOW) and Feedback and technical information about the Prototype Service and the Tool. City agrees not to disclose any information to IBM which is considered by City to be confidential. 7.3 Information may be disclosed by: (i) presentation; (ii) delivery; (iii) authorized access, such as to a data base; or (iv) any other express means. Information must be identified as confidential at the time of disclosure, and all material containing Information must be marked Confidential or Proprietary. Any Information disclosed verbally or visually must be summarized by the disclosing party in writing and the writing provided to the receiving party within thirty (30) days after the disclosure. 7.4 For the term of this Agreement, and for five (5) years from the end of this Agreement, the City agrees to limit disclosure of the Information to those of its employees who have a need to know it. The City shall use the same care and discretion to avoid disclosure of Information as it would with its own similar information it does not wish to disclose. The City shall use Information only for the purpose for which it was disclosed or otherwise for the benefit of IBM. 7.5 Disclosure of Information will not be precluded if the disclosure is required by law, but the receiving party will give the disclosing party reasonable notice to allow the disclosing party an opportunity to obtain a protective order. The obligations of Article 7.4 above will not apply to information that is: (a) already in the possession of the receiving party or its Subsidiaries without obligation of confidence; (b) independently developed by the receiving party or its Subsidiaries; (c) publicly available, or becomes publicly available through no fault of the receiving party or its Subsidiaries; (d) disclosed by the disclosing party without obligation of confidence (e) inherently disclosed by the receiving party or its Subsidiaries in the use, distribution or marketing of any present or future product or service; or (f) disclosed with the permission of the disclosing party. 7.6 Each party agrees that the disclosure of its Information pursuant to this Agreement does not limit the assignment or reassignment of the other party's employees. 7.7 Disclosure by the City of Information is permitted if the disclosure is to a third party whose services the receiving party requires to accomplish the purposes of this Agreement, provided such third party has entered into a written agreement with the receiving party in accordance with Article 10.10. 8.0 Data 8.1 The City will provide IBM with current meter readings, on a schedule and frequency to be agreed to by the parties, from 250 customers' advanced water meters ( "Data "). The City will be solely responsible for the collection of Data and for determining what Data may and will be provided to IBM under this Agreement. 8.2 The City represents and warrants that it has all necessary third party consents to permit distribution and use of the Data, and any other information provided to IBM, pursuant to this Agreement. The City further represents and warrants that it has anonymized all Data delivered to 4of10 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx IBM to an extent sufficient to ensure that a person without prior knowledge of the original Data and its collection cannot, from the anonymized Data and any other available information, deduce the personal identity of the Data - subjects. 9.0 Disclaimers, Limitation of Liability, and City Indemnity to IBM 9.1 EXCEPT AS PROVIDED IN ARTICLE 8.2, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING SOFTWARE, COPYRIGHTABLE MATERIALS, SERVICES, INVENTIONS, PROCEDURES, PROCESSES, PROTOTYPES, INFORMATION, OR OTHER DELIVERABLES SUPPLIED UNDER THIS AGREEMENT, WHICH ARE ALL PROVIDED "AS IS." THE WARRANTIES THAT EACH PARTY EXPLICITLY DISCLAIMS INCLUDE THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON - INFRINGEMENT OF ANY THIRD PARTY'S PATENTS, COPYRIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT. 9.2 EACH PARTY ALSO SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY PROTOTYPE(S) WHICH MAY BE DEVELOPED PURSUANT TO THIS AGREEMENT INCLUDING THAT ANY PROTOTYPE(S) WILL MEET ANY DEVELOPMENT OBJECTIVES, OR ANY REQUIREMENTS OF EITHER PARTY. EACH PARTY WILL MAKE GOOD FAITH EFFORTS TO COMPLETE THE ACTIVITIES UNDER THE STATEMENT OF WORK. FAILURE TO COMPLETE SUCH ACTIVITIES AFTER ALL COMMERCIALLY REASONABLE EFFORTS, DOES NOT CONSTITUTE BREACH OF CONTRACT. 9.3 The City will defend and indemnify IBM and IBM's Subsidiaries from all loss, cost and expense (including reasonable attorney's fees) arising from (i) IBM's use of the Data in accordance with this Agreement and (ii) any third party claim based on an actual or alleged breach of the City's representations and warranties as provided in Article 8.2. 9.4 Except for claims arising out of Articles 7.0 and 9.3, neither party will be liable for any consequential damages, lost profits, lost savings, loss of anticipated revenue, or any exemplary, punitive, special or indirect damages, even if advised of their possibility. IBM's total cumulative direct damages shall not exceed $100,000 regardless of the basis of any claim. 10.0 General Provisions 10.1 Each party is an independent contractor. Neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. Neither party will assume or create obligations for the other. 10.2 Except as otherwise provided herein, this Agreement does not confer any rights to use in advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either party hereto, including any contraction, abbreviation, or simulation of any of the foregoing, without prior written agreement, and each party agrees not to use or refer to this Agreement or its terms in any such activities without the express written approval of the other party. 10.3 All notices will be in writing and will be valid if sent by: (a) registered or certified mail, return receipt requested, postage prepaid; (b) by facsimile (provided the receipt of the facsimile is evidenced by a printed record of completion of transmission); or, (c) by express mail or courier service providing a receipt of delivery. Notice will be effective upon receipt. The notices that are not of a technical nature as per Article 2 of this Agreement should be addressed to: 5of10 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx IBM: IBM Corporation Thomas J. Watson Research Center 1101 Kitchawan Road, Route 134 Yorktown Heights, NY 10598 Attn.: Manager, Business and Government Relations 6 of 10 The City: The City of Dubuque 50 W. 13 Street Dubuque, IA, 52001 Attn.: City Manager 10.4 Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to acts of God, acts of the other party, fire, flood, natural catastrophe, acts of any government or of any civil or military authority, national emergencies, riots, war, insurrection, strikes, or any occurrence beyond the reasonable control of such party. 10.5 Each party agrees to comply and to reasonably assist the other in complying with applicable government export and import laws and regulations. Further, each party agrees that unless authorized by applicable government license or regulation, including but not limited to U.S. authorization, both parties will not directly or indirectly export or reexport, at any time, any technology, software and/or commodities furnished or developed under this or any other, Agreement between the parties, or its direct product, to any prohibited country (including release of technology, software and/or commodities to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, and sanctions regulations. This section will survive after termination or expiration of this Agreement and will remain in effect until fulfilled. 10.6 Except as expressly provided in this Agreement, neither party grants any licenses, either directly or indirectly, by implication or estoppel or otherwise, to either party under any patent, copyright or other intellectual property right of the other party. 10.7 Neither party may assign, or otherwise transfer, its rights or delegate its obligations under this Agreement without prior written consent of the other party. Any attempt to do so is void. 10.8 Except for claims arising out of Articles 5.0 or 7.0, neither party may bring an action arising out of this Agreement, regardless of form, more than one year after the cause of action has accrued. 10.9 Neither party relies on any promises, inducements or representations made by the other, or expectations of more business dealings, except as expressly provided in this Agreement. 10.10 Each party represents that it has, or will have appropriate agreements with its employees or others whose services the party may require to enable it to comply with all the provisions of this Agreement. 10.11 Each party may have similar agreements with others, and may design, develop, manufacture, acquire or market competitive products and services, and conduct its business in whatever way it chooses. Each party will independently establish prices and terms for its products and services. 10.12 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby so long as the intent of the parties can be preserved. 10.13 This Agreement is governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof. Any proceedings to resolve disputes relating to this Agreement will be brought only in the State of New York and in a US federal court if there is jurisdiction. The ISM Agmt W0954778 with City of OBQ and SOW091809bal - IBM parties waive the right to trial by jury in any matter which arises under this Agreement. The United Nations' Convention on International Sales of Goods does not apply. 10.14 Any rights and obligations which by their nature survive and continue after any expiration or termination of this Agreement will survive and continue and will bind the parties and their successors and assigns, until such obligations are fulfilled. 10.15 This Agreement may only be amended by a writing signed by authorized representatives of the parties. No approval, consent or waiver which alters the terms of this Agreement will be enforceable unless signed by both parties, Failure to insist on strict performance or to exercise a right when entitled does not prevent a party from doing so later for that breach, or a future breach. 10.16 This Agreement and Appendix A are the complete and exclusive agreement between the parties regarding the subject matter hereof and supersedes any prior oral or written communications or understandings between the parties related to the subject matter hereof. By signing below, the parties agree to the terms of this Agreement. INTERNATIONAL BUSINESS MACHINES CORPORATION Rai .S. aPsai, V.P. Business Development, Research Date: September -2.2, 2009 7 of 10 THE CITY OF DUBUQUE, IOWA By: `: S 6 Ca Nam -f. !c E. Connors Title: ayor Pro -Tern Date: September 21, 2009 IBM Agmt W0954778 with City of DBQ and SOW091809ba1- IBM 1.0 IBM'S RESPONSIBILITIES 2.0 CITY RESPONSIBILITIES Appendix A - STATEMENT OF WORK Project Objectives IBM would like to work with City to develop the Prototype Service that would allow City management and water utility customers to track water usage on a near real -time basis and be able to compare individual customer's water usage with other water service customers' usage. IBM will endeavor to develop the following: 1. Prototype Service that would allow: a. City management to visualize and understand consumption patterns and the sustainability footprint of the volunteers participating in the project for both water consumption, and the - related energy consumption for both water production and waste water treatment. b. Participating volunteers to visualize and understand their water consumption. 2. Stand alone application software tool with a front -end that is similar to the front end of the Prototype Service, but accesses static and focal data, ( "Tool ") for use by the City to demonstrate the functionality of the Prototype Service to its water utility customers and others. City will be able to access the Tool from a properly configured laptop or desktop computer, i.e. the Tool should run on a machine running Windows XP or more recent operating system, on an Intel platform, with the following minimum configuration requirements: 1 GB RAM, 10 GB Hard Disk and CPU faster than 1.6 GHz. IBM will make available to the project or develop software tools a) to perform data processing and data management to prepare the Data and b) to perform exploratory analysis on the datasets to extract consumption patterns and insights. These tools will not be furnished or licensed to the City. IBM will furnish the following to the City: 1. Reports on water consumption patterns and sustainability footprints collected over the. period of the project over the set of volunteers participating in the project. 2. A final report on the project results. 3. Access to the Prototype Service developed during this project to demonstrate it. 4. Tool. The City will provide: 1. A list of 250 volunteer water customers with advanced water meters to be identified only by a unique ID. 2. City preferences for Prototype Service user interface and metrics. 3. Access to a data warehouse that will store Data, on a schedule and frequency to be mutually agreed to by the parties. 8 of 10 IBM Agmt W0954778 with City of DBQ and SOW091809ba1- IBM.docx 4. Access to information about the electricity consumption for water production and waste water treatment during the project period. 5. Make available City personnel who can answer phone calls from the volunteers who have questions about how to use the Prototype Service, or how to interpret the Data. IBM shall have no responsibility to the volunteers that use the Prototype Service. 6. Feedback on the project from the volunteers in a form, format and frequency to be agreed upon by the Technical Coordinators. 3.0 SCHEDULE AND MILESTONES Emit ■ Identify metrics to be measured and monitored Using input provided by City, determine requirements of Proto e Service Help develop communication materials to be used to recruit volunteers Provide advice on how to obtain a representative base sample of population in volunteer . ool Identify format of various Data sources and create plan for ire rocessing of Data that will be needed to consume Data Finalize Data sources, frequency of Data updates and process and _overnance of Data used Develop research tools for automation of data gathering from advanced water meters for consumption E i i i iielIt.TK" i 613. ii 3 Complete the integration of the data processing, warehousing and Prototype Service so that the Data is ingested into Prototype Service for visualization and subsequent understanding and analysis �'���.i ?��R 9'� .tii i �� .�Aila�il��t�a'�7�'f*iY7�•�rf: S �i ' i. Estimated Completion Time in Months Relative to Start Date of Pro ect 9of10 IBM Agmt W0954778 with City of DBQ and SOW091809baI - IBM.docx Analyze consumption data for insights and patterns that lead to understanding for improving sustainability footprint and understanding how visibility affects consumption Responsible . Parties • Estimated Completion Time in Months Relative to Start Date of Project END 10 of 10