HomeMy WebLinkAbout20130804.tiffLICENSE AND EXCHANGE AGREEMENT FOR GEOGRAPHIC DATA
THIS LICENSE AND EXCHANGE AGREEMENT is made and entered into this
day of , 2013, by and between the COUNTY OF WELD, a body politic
and corporate of the STATE OF COLORADO, by and through the Board of County
Commissioners of the County of Weld, whose address is 1150 O Street, P.O. Box 758, Greeley,
CO 80632, hereinafter referred to as "County," and the Omaha District, U.S. Army Corps of
Engineers, located at 1616 Capitol Avenue, Omaha, Nebraska 68102 hereinafter referred to as
"Licensee."
WITNESSETH:
WHEREAS, the County pursuant to C.R.S. § 29-1-203 and Colorado Constitution
Article XIV, § 18(2)(1), and Licensee, as a federal agency, are authorized to enter into
agreements with one another, and
WHEREAS, County has been working on the provision of a geographic information
system ("GIS") for use by County personnel and by other persons, entities and local
governmental jurisdictions upon license agreement, and
WHEREAS, Licensee desires to access certain orthophotography, digital planimetric
data, and parcels and soils data through a license agreement in exchange for Licensee's
supplying to County certain GIS usable information, such as GPS, survey, subdivision,
boundary, and map information with respect to the Licensee, and
WHEREAS, the parties hereto desire to enter into this License and Exchange Agreement
for Geographic Data (hereinafter referred to as "License Agreement") for the purpose of
allowing Licensee such access and to facilitate the sharing of GIS information between Licensee
and County.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein,
the parties hereby agree as follows:
ARTICLE I
Scope of Agreement
A. In consideration of the promises and covenants by Licensee stated herein, County hereby
grants Licensee a personal, non-exclusive, non -assignable and non -transferable license
for the term of this License Agreement to use certain orthophotography, digital
planimetric data, and parcels and soils data owned by Weld County (hereinafter referred
to as the "Product") for use by Licensee, as more explicitly set forth in Exhibit A, (a
copy of which is attached hereto and made a part hereof by this reference).
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B. This Agreement does not constitute a sale of any title or interest in the Product. Title to
the Product is not transferred to Licensee. Ownership of the Product and of any
authorized copies made by Licensee is vested in County, subject to the rights granted to
Licensee in this License Agreement. The County reserves all rights not expressly granted
to the Licensee by this License Agreement.
C. Licensee understands this is a one-time delivery and that the County has no responsibility
for updating the Product or information contained therein; however, Licensee may
receive any update created by County upon request. County shall have no obligation or
responsibility to provide maintenance, support or training to Licensee.
D. No part of the Product may be copied, reproduced or transmitted in any form or by any
means whatsoever, including but not limited to, electronic, mechanical, photocopying,
recording, scanning, or by any information retrieval system, except for "approved
purposes" as set forth under the provisions of Exhibit A, without the express written
permission of the County. "Approved purposes" under this agreement shall include the
following:
I. Unrestricted use of the Product on the Licensee's computers or by Licensee's
contractors' or agents' computers for purposes of their contract or agency;
2. Use by the Licensee to create a 'new product', which uses as a component of said
'new product' some or all of the information contained in the Product provided to
Licensee under the terms of this License Agreement. In order to constitute a new
product, the Licensee must demonstrate to the County that the Licensee shall add
meaningful additional information to some or all of the data contained in the
Product; shall reorganize some or all of the data contained in the Product to make
it usable to the audience to whom the Licensee intends to provide the data; and/or
shall extrapolate some of the data contained in the Product in order to formulate
and present opinions as to the meaning of the data. Licensee's explanation of how
it intends to create a new product from the Product is addressed in Exhibit A.
LICENSEE IS SPECIFICALLY PROHIBITTED FROM LICENSING, SUB -
LICENSING, ASSIGNING, LEASING, PUBLISHING, TRANSFERRING, SELLING,
PERMITTING ACCESS TO, DISTRIBUTING, ALLOWING INTERACTIVE ACCESS TO,
OR OTHERWISE MAKING AVAILABLE THE PRODUCT ORANY PORTION THEREOF
TO ANY THIRD PARTY FOR ANY PURPOSE OTHER THAN AN APPROVED PURPOSE
AS DEFINED ABOVE.
Licensee agrees to notify its employees, agents, and any contractors of the restrictions
contained in this License Agreement, and ensure their compliance with all restrictions.
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E. Licensee agrees to recognize and honor in perpetuity the copyrights, and other
proprietary claims for survey control information, databases, collateral information, and
products established or produced by County or the vendors furnishing said items to
County.
ARTICLE 11
Period of License Agreement
A. This License Agreement shall commence upon signature hereunder and shall remain in
force for a period of one year, and shall be renewed automatically for successive one year
periods, unless sooner terminated by either party upon written notification, subject to the
provisions of sub -paragraph C., below.
B. Licensee is only granted the right to use the Product during the License Period.
C. The provisions of this License Agreement regarding confidentiality and restrictions
(Article I, Paragraph D) and the provisions of Articles IV, V, and VI shall survive
termination of this License Agreement for any reason.
ARTICLE III
Provision of Information to County
Licensee agrees to provide to County the following, without cost, as the sole
consideration for its receipt of the digital GIS information referred to herein:
1. Any GPS information regarding section corners, quarters, or sixteenths located
within Licensee's boundaries which Licensee may acquire.
2. Updated information regarding Licensee's boundaries and infrastructure.
3. Any additional digital GIS information for areas within the Licensee's boundaries
which may be useful to the Weld GIS system as determined by the parties hereto.
ARTICLE IV
No Warranties
The Product has been developed solely for internal use only by the County. Licensee
expressly agrees that Licensee's use of the Product is at Licensee's sole risk and undertaking.
Licensee understands and acknowledges that the GIS database and data in the Product is subject
to constant change and that its accuracy and completeness cannot be and is not guaranteed.
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IF LICENSEE USES THE PRODUCT PROVIDED BY COUNTY FOR FINAL
DESIGN PURPOSES, LICENSEE AGREES THAT IT DOES SO AT ITS OWN RISKTHE
PRODUCT IS DISTRIBUTED ON AN `'AS IS" BASIS. COUNTY MAKES NO
WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, AS TO THE
COMPLETENESS, ACCURACY, OR CORRECTNESS OF SUCH PRODUCT, NOR
ACCEPTS ANY LIABILITY, ARISING FROM ANY INCORRECT, INCOMPLETE OR
MISLEADING INFORMATION CONTAINED THEREIN. THERE ARE NO
WARRANTIES, EITHER EXPRESSED OR IMPLIED, OF TITLE OR MERCHANTABILITY
OR FITNESS OF SUCH PRODUCT FOR A PARTICULAR PURPOSE.
COUNTY IS NOT RESPONSIBLE AND SHALL NOT BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL
DAMAGES WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF USE
OF THE PRODUCT OR INABILITY TO USE THE PRODUCT OR OUT OF ANY BREACH
OF ANY WARRANTY. LICENSEE AGREES THAT THE PRODUCT SHALL BE USED
AND RELIED UPON ONLY AT THE RISK OF LICENSEE.
ARTICLE V
Liabilities
A. THE LICENSEE AGREES NOT TO HOLD THE COUNTY, ITS OFFICIALS,
OFFICERS, EMPLOYEES AND SERVANTS LIABLE FOR ANY CLAIMS, LOSS,
DAMAGES, INJURY, COSTS AND/OR ATTORNEY FEES ARISING OUT OF
THIS AGREEMENT OR FROM ANY LOSSES ARISING OUT OF LICENSEE'S
PROCURING, COMPILING, COLLECTING, INTERPRETING, PRODUCING,
USING OR COMMUNICATING THE PRODUCT OR INFORMATION
CONTAINED THEREIN.
B IF, NOTWITHSTANDING ARTICLE IV ABOVE, LIABILITY CAN BE IMPOSED
ON COUNTY, THEN LICENSEE AGREES THAT COUNTY'S AGGREGATE
LIABILITY FOR ANY AND ALL LOSSES OR INJURIES TO LICENSEE,
ARISING OUT OF ANYTHING TO BE DONE OR FURNISHED HEREUNDER,
REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS
OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO
HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE DOLLAR AMOUNT
RECEIVED BY COUNTY UNDER THIS AGREEMENT, AND LICENSEE
COVENANTS AND PROMISES THAT IT WILL NOT SUE THE COUNTY FOR A
GREATER AMOUNT.
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ARTICLE VI
Breach And Remedies
In the event the Licensee breaches any of the terms, conditions, covenants, or License
Agreements contained in this License Agreement, not only shall the license granted herein
immediately cease, but the County shall thereupon have the right to any and all legal remedies
available to it under the law.
ARTICLE VII
Non -Assignability
Neither this License Agreement nor the rights granted by it shall be assigned or
transferred by the Licensee under any circumstance whatsoever. This restriction on assignments
and transfers shall apply to assignments or transfers by operation of law, as well as by contract,
merger, or consolidation. Any attempted assignment or transfer in derogation of this prohibition
is void.
ARTICLE VIII
Governing Law
The validity, interpretation, and construction of this License Agreement shall be
governed by and construed in accordance with the laws of the United States of America.
The exclusive jurisdiction and venue for any lawsuit between the parties arising out of
this License Agreement shall be in the Federal District Court for the District of Colorado or the
United States Court of Federal Claims.
ARTICLE IX
Miscellaneous
A. The Licensee will do or cause to be done all things necessary to preserve its rights and
meet its obligations under this License Agreement.
B. This License Agreement contains no financial commitments on the part of the County,
and any financial commitments on the part of the County which become a part of this
License Agreement are subject to appropriation by the Board of County Commissioners
of Weld County, State of Colorado. If County funds for this License Agreement are not
appropriated for each County fiscal year, the County may terminate this License
Agreement upon thirty (30) days written notice to Licensee. The County's fiscal year is
currently the calendar year.
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C. Captions used in this License Agreement are for convenience and are not used in the
construction of this License Agreement.
D. This License Agreement contains the entire License Agreement of the parties. No other
representation whether oral or written may be relied upon by either party other than those
that are expressly set forth herein. No agent, employee or other representative of either
party is empowered to alter any of the terms herein unless done in writing and signed by
an authorized representative of the parties.
E. If for any reason a court of competent jurisdiction finds any provision of this License
Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the remainder of
this License Agreement shall continue in full force and effect.
F. Nothing contained herein shall imply an employer/employee relationship, a joint venture,
partnership, or other association between County and Licensee.
G. Any notice or communication given pursuant to this License Agreement shall be given in
writing, either in person (deemed given when actually received) or by certified mail,
return receipt requested (deemed given three (3) days after mailed). Notice shall be given
to the parties at the following addresses:
COUNTY:
Weld County GIS Division
1400 N 17th Avenue
Greeley, Colorado 80631
LICENSEE:
Omaha District, U.S. Army Corps of Engineers
1616 Capitol Avenue
Omaha, Nebraska 68102
H. The undersigned warrants to the County that it has full power and authority to enter into,
and where applicable, to act as the agent of the Licensee and be bound to perform its
obligations under this License Agreement.
This License Agreement contains the entire agreement and understanding between the
parties to this License Agreement and supersedes any other agreements concerning the
subject matter of this transaction, whether oral or written. It is expressly understood and
agreed that the enforcement of the terms and conditions of this License Agreement, and
all rights of action relating to such enforcement, shall be strictly reserved to the
undersigned parties, and nothing contained in this License Agreement shall give or allow
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any claim or right of action whatsoever by any other person not included in this License
Agreement. It is the express intention of the undersigned parties that any entity other
than the undersigned parties receiving services or benefits under this License Agreement
shall be deemed an incidental beneficiary only.
IN WITNESS WHEREOF, said parties have hereto set their hands and seals.
BOARD OF COUNTY COMMISSIONERS
WELD COUJY, COLORADO
ATTEST:
Weld County Clerk to the Board n, !c
BY:
Deputy Cle
ATTEST:
BY:<0..
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Wilfatfi F' Garci YE heir
Subscribed and sworn to before me in the county of
, State of
CENSEE:
2.ofi+ day of M ctii\ , 20/3 .
II :meal No • State of Nebraska
■ r LINDA DOLL
My Comm. Exp. Dec. 30,201&
d1.vk dzo lt�Le Y�
(Notary's official signature)
to-3o-l�
(Commission expiration date)
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