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Home My WebLink About20152952.tiff epramel MEMORANDUM TO: Weld County BOCC 8/21/2015 r• r FROM: Ryan Rose,Chief Information Officer SUBJECT: GIS Data License Agreement with PerkinsCoie The attached GIS Data License Agreement between Weld County and PerkinsCoie,LLP is being presented for consideration.There are no exceptions to the standard form. It is the recommendation of the Department of Information Technology to approve this agreement,thereby enabling the sale of Geographic Data to PerkinsCoie,LLP according to the fee schedule established in Weld County Code. 2015-2952 CG: ZTMT;aptda. iTocb3 9-9- i s 1900 PERKu ' J% _ IC' Suite Sixteenth00 Str�t 0 +1303291244O00 Denver,CO 80202-5255 perkinscoie.com August 17,2015 Robert N.Mille RMiller©perkinscoic.com D. 4-1.303.291.2313 F. +1.303.291.2413 VIA E-MAIL JMUNDT@WELDGOV.COM Jacob Mundt GIS Director Weld County GIS Division • 1400 N. 17th Ave. P.O. Box 758 Greeley, CO 80632 • Re: Weld County GIS Data License Agreement Dear Mr.Mundt: Please find attached a copy of the Weld County GIS Data License Agreement,signed and notarized. The data will be used in the formation of an expert report which may be introduced into evidence in conjunction with pending litigation. • We look forward to hearing from you. Since ly, J`/n' - Robert N.Miller RNM:csv . Attachment 30486-0007/LEGAL127361708.1 neto1 Die llP WELD COUNTY GIS DATA LICENSE AGREEMENT • THIS LICENSE AGREEMENT;made this 17th day of August 2015, is entered into by and between the COUNTY OF WELD, STATE OF COLORADO, a body politic and corporate(the "County"), and Robert N Miller on behalf of Perkins Cnie LI P (the "Licensee"), with offices for transaction of business located at 1900 16th Street Suite 140Q, Denver CO Rmn7-52`;5 • WITNESSETH: WHEREAS, the Licensee has requested from Weld County a license to use GIS data layers defined in the GIS Data Fee Schedule in the Weld County Code ; and WHEREAS, the County is willing to grant said license to Licensee subject to the limitations and provisions set forth in this agreement. • NOW, THEREFORE, in consideration of the mutual covenants and conditions herein, the parties hereby agree as follows: Introduction. The terms of this Agreement are contained in the terms recited in this document and in Exhibits A and B, each of which forms an integral part of this Agreement. Exhibits A and B are specifically incorporated herein by this reference. County and Licensee acknowledge and agree that this Agreement, including specifically Exhibits A and B, define the performance obligations of Licensee and Licensee's willingness and ability to meet those requirements. ARTICLE I SCOPE OF AGREEMENT A. In consideration of Licensee's payment of the sum set forth in Article III, the County hereby grants the Licensee a personal, non-exclusive, non-assignable and non-transferable license for the term of this agreement to use the GIS data layers owned by Weld County (the "Product") for internal use only by the Licensee and the Licensees, contractors for the sole purpose of preparation of an expert report regarding oil and mac tnterestc in and as restricted by this agreement in Article IV. Weld county for possible use at trial. 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 the County, subject to the rights granted to Licensee in this agreement. The County reserves all rights not expressly granted to the Licensee by this agreement. WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 1 • C. The Licensee understands this is a one-time delivery and that the County has no responsibility for updating the Product or information contained therein. 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", 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. If applicable, a copy of the Licensee's explanation of how it intends to create a new product from the Product is attached to this License Agreement as Exhibit A. 3)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 OR ANY PORTION THEREOF TO ANY THIRD PARTY FOR ANY PURPOSE OTHER THAN AN APPROVED PURPOSE AS DEFINED ABOVE. 4)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. E. The 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 the County or the vendors furnishing said items to the County. WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 2 • ARTICLE II PERIOD OF AGREEMENT A. This agreement shall commence upon signature by the Board of County Commissioners, and _ shall remain in force for a term.of one (I) year from the date the document was signed. B. The Licensee is only granted the right to use the Product during the License Period. This agreement shall automatically terminate upon the expiration of the term. C. The provisions of this agreement regarding confidentiality and restrictions (Article I, Paragraph D) and the provisions of Articles IV, V, and VI shall survive termination of this agreement for any reason. D. County has the right to terminate this Agreement, with or without cause on thirty (30) days written notice. Furthermore, this Agreement may be terminated at any time without notice upon a material breach of the terms of the Agreement. E. Execution of this Agreement will terminate any other existing agreements for Geographic Data between the County and the Licensee. ARTICLE III AGREEMENT SUM The Licensee shall pay to the County the•appropriate fee as described in the GIS Data Fee Schedule in the Weld County Code prior to receipt of the Product. The GIS Data Fee Schedule is also included as EXHIBIT B in this agreement. Payment shall be made in full without deduction for any sales, use or other taxes or similar charges,which shall be paid exclusively by Licensee. ARTICLE IV NO WARRANTIES The Product has been developed solely for internal use only by the County. Licensee expressly agrees that use of the Product is at Licensee's sole risk. The.Licensee understands and acknowledges that GIS database and data in the Product is subject to constant change and that its accuracy and completeness cannot be and is not guaranteed. The designation of lots or parcels or land uses in the data base does not imply that the lots or parcels were legally created or that-the land uses comply with applicable State or Local law. UNDER NO CIRCUMSTANCE SHALL THE PRODUCT BE USED FOR FINAL DESIGN PURPOSES. THE PRODUCT IS DISTRIBUTED ON AN "AS IS" BASIS. THE COUNTY MAKES NO WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, AS WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 3 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. THE 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. THE LICENSEE AGREES THAT THE PRODUCT SHALL BE USED AND RELIED UPON ONLY AT THE RISK OF THE LICENSEE. The designation of lots or parcels or land uses in the data base does not imply that the lots or parcels were legally created or that the land uses comply with applicable State or Local law. ARTICLE V LIABILITIES A. THE LICENSEE AGREES TO INDEMNIFY AND HOLD HARMLESS THE COUNTY, ITS OFFICIALS, OFFICERS, EMPLOYEES AND SERVANTS FROM ANY LIABILITY, CLAIMS, LOSS, DAMAGES, INJURY, COSTS AND ATTORNEY FEES ARISING OUT OF THIS AGREEMENT OR 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 OR 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 COUNTY FOR A GREATER AMOUNT. C. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO WAIVE OR LIMIT ANY RIGHT OR DEFENSE AVAILABLE TO COUNTY UNDER THE "COLORADO GOVERNMENTAL IMMUNITY ACT", §§24-10-I01 et seq.;C.R.S. OR ANY SIMILAR OR RELATED.STATUTORY PROVISION AS APPLICABLE NOW OR HEREAFTER AMENDED. WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 4 • • ARTICLE VI BREACH AND REMEDIES A. In the event the Licensee breaches any of the terms, conditions, covenants, or agreements contained in this agreement, not only shall the license granted herein immediately cease, but the County shall thereupon have the right to any and all legal or equitable remedies, including but not limited to injunctive relief. B. Licensee acknowledges that use or disclosure of the Product in violation of this agreement may cause irreparable harm to the County. _ ARTICLE VII NON-ASSIGNABILITY Neither this 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 agreement shall be governed by and construed in accordance with the laws of the State of Colorado and the United States of America. The exclusive jurisdiction and venue for any lawsuit between the parties arising out of this agreement shall be Weld County, Colorado, and/or the Federal District Court for the District of Colorado. WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 5 • ARTICLE IX MISCELLANEOUS A. The Licensee will do or cause to he done all things necessary to preserve its rights and meet its obligations under this agreement. B. This 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 Agreement are subject to appropriation by the Board of County Commissioners of Weld County, State of Colorado. If County funds for this agreement are not appropriated for each County fiscal year, the County may terminate this agreement upon thirty (30) days written notice to Licensee.The County's fiscal year is currently the calendar year. C. Captions used in this agreement are for convenience and are not used in the construction of this agreement. D. This agreement contains the entire 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. No amendment may be made to this Agreement unless such amendment is first reduced to writing and duly executed by authorized representatives of both parties. E. If for any reason a court of competent jurisdiction finds any provision of this 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 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 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: • The County: Weld County GIS Division 1400 N. 17th Avenue • P.O. Box 758 Greeley, Colorado 80632 WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 6 with a copy to: Weld County Attorney P.O. Box 1948 Greeley, Colorado 80632 The Licensee: Robert N. Miller on behalf of Perkins Coie LLP 1900 16th Street Suite 14nn Denver, CO 80202-5255 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 agreement. I. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under. this Agreement shall be an incidental beneficiary only. J. Neither party to this Agreement shall be liable to the other for delays in delivery or failure to deliver or otherwise to perform any obligation under this Agreement, where such failure is due to any cause beyond its reasonable control, including but not limited to Acts of God, fires, strikes,war,'flood, earthquakes or Governmental actions. K. Licensee shall strictly comply with all applicable federal and State laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to discrimination and unfair employment practices. • • WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 7 , IN WITNESS WHEREOF,said parties have hereto set their hands and seals. dATTEST: 'i1 BOARD OF COUNTY COMMISSIONERS Weld County Clerk to the Board WELD COUNTY, LORADO BY: will './ �l%r sl }'.I, ♦ /l De i uty Clerk t• t ::)': : ,. ) arbara Kirkmey r,Chair . , -� EP 092015 1 1/v52 APPROVED �nAS-nTO D AS CE:sat-atizController le fficial,or Department Head APPROVED AS TO FORM: NM //'r �'lwy^"Rc Director of General Services County Attorney LICENSEE: -P1. BY: 62rlrv'✓ l- Afifi STATE OF ) ) ss: COUNTY OF )Subscribed // aka�a,/p and sworn to before me in the county of � State of eplortido ;` this /74...- day of A ei.20 - Notary's official ' azure) LYNETTE N.PUGANOTARY PUBLIC 6 I o l STATE 0 COLORADO is Commission expiration date) L CnmmissiON ARY IDEXPIRES D JUN 10,2019 WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 8 x015—x952, EXHIBIT"A" Required if proposing a NEW PRODUCT Licensee will use the GIS data layers for the purpose of preparation of an expert report regarding oil and gas interests in Weld County for possible use at trial. • WELD COUNTY GIS DATA LICENSE AGREEMENT(rev. 05/15) Page 9 EXHIBIT B GIS FEE SCHEDULE Printed Products Fee Established Photocopy or Property Portal prints $0.25 per page Custom print,up to tabloid size paper $1.00 per page Large format print up to 36"Minimum Dimension $5.00 per foot Large format print over 36"Minimum Dimension $10.00 per foot Plats(24 x 36 B/W line work) $5.00 per page Premium paper(if available) Additional 0.5 x normal fee County Road Map—Large $15.00 County Road Map—Small $10.00 Property Ownership Map Book $30.00 Digital Maps $10.00 per digital file Paper measuring 60"in Minimum Dimension is only available in premium bond. Data Products Per PLSS Section All of Weld County Parcels $60.00 $5,000.00 for 12 month access to quarterly updates Additional layers can be found for download on our website at www.weldgov.com. Data Purchaser Fee Agreement Type Any authority for whom Weld County collects(axes Waived IGA Non-Weld County government agencies Waived° IGA All other parties Full Commercial Excluding Metro Districts. Will be evaluated by the BOCC on a case-by-case basis. WELD COUNTY GIS DATA LICENSE AGREEMENT(rev.05/15) Page 10 Hello