HomeMy WebLinkAboutContract 42169•
esri�
CITY SECRETARY
ArcGIS ONLINE COMMUNITY MAPS PROC'IaFRAU NO.,
PARTICIPATION AGREEMENT
Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953
Agreement No. 2011DAT1680
City of Fort Worth, TX (hereinafter referred to as "Contributor") is entering into this Agreement to participate in the
Environmental Systems Research Institute, Inc. ("Esri"), ArcGIS Online Community Maps Program. By entering into
this Agreement, Contributor is confirming its intent to contribute its geographic data content as part of the Community Maps
Program, in which Contributor will have its content processed, hosted, published, and redistributed for the use of Esri's end
users and developers. Contributor acknowledges that it has read the Esri ArcGIS Online Community Maps Program
Description found at httn:/lwww.csri.coni/communit mans.
Contributor's participation in the ArcGIS Online Community Maps Program is conditioned on the following terms:
OVERVIEW
Nature of Transaction. This is a license agreement and not an agreement for sale between Esri and Contributor. This
Agreement gives Esri rights to use Contributor's content in Esri's Community Maps program. All rights not specifically
granted to Esri in this Agreement are reserved to Contributor.
Descriptions of Sources. Contributor will describe in Exhibit 1 any content that Contributor is making available to Esri
through this Agreement. All such descriptions are made part of this Agreement.
DEFINITIONS
"Deliverable(s)" means raw geographic data content in a geographic information system -compatible format that is submitted
by Contributor for processing by Esri or Esri's authorized contractors.
"Processed Content" means a pictorial, graphical, or other representation of the Deliverable(s) (including annotation) or
similar content to be published to end users and developers. For any data that Contributor processes before submitting it to
Esri, Processed Content includes any content marked Processed Content in Exhibit 1.
"Task Service(s)" means any method, process, or procedure in which a host computer(s) or server(s) performs calculations
using the Deliverable(s) and returns the results of such calculations to end users or developers in response to client requests.
This may include, for example, geocoding services; geometry services; routing functions; network analyses; geoprocessing
services; and any other process involving the query, manipulation, comparison, or other analysis of spatial data.
CONTRIBUTOR LICENSE GRANT
Contributor grants to Esri, and Esri accepts, the following license rights to use Contributor's geographic data content:
Deliverable(s). With respect to Deliverable(s), Contributor grants Esri, and Esri accepts, a worldwide, perpetual,
nonexclusive, royalty -free license to:
• Copy and store Deliverable(s), generate Processed Content based on the Deliverable(s), and sublicense Esri's
contractors to do the same;
• Publish Task Service(s) that utilizes the Deliverable(s);
• Sublicense developers to integrate such Task Service(s) into software applications;
• Sublicense end users to access and make use of the Deliverable(s) through Task Service(s) functionality and store
the results, provided that end users will not be permitted to download the Deliverable(s),
• Use the Deliverable(s) for marketing, beta testing, evaluation, and demonstration purposes and for training Esri's
distributors, sales representatives, or end users.
1
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Processed Content. With respect to Processed Content, Contributor grants Esri, and Esri accepts, a worldwide, perpetual,
nonexclusive, royalty -free sublicense to:
■ Copy, store, print, modify, adapt, distribute transmit, publish, publicly display, publicly perform, broadcast, and
otherwise make the Processed Content available to others by any means and in any medium now known or later
developed, and grant a sublicense to others to do the same.
The following list is intended to serve as an illustration of, and not a limitation on, the ways in which Esri will exercise the
foregoing grant of rights. Esri may.
• Host the Processed Content as an Internet -based map service to provide users with access to cached map tiles to be
used with any Esri software technologies, or solutions, including ArcGIS products, ArcGIS.com, ArcGIS Online,
MapStudio, ArcGIS Web Mapping APIs Esri's industry solutions and mobile technologies, the Business Analyst
family of products, and authorized third -party applications;
• Bundle Processed Content with ArcGIS Data Appliance;
• Use the Processed Content for marketing beta testing, evaluation, and demonstration purposes and for training Esri's
distributors, sales representatives, developers, and end users.
ESRI ACKNOWLEDGMENTS
Esri acknowledges that use of Contributor Deliverable(s) shall be subject to the following Warranties, Disclaimers, and
Limitations of Liabilities:
1. CONTRIBUTOR REPRESENTS AND WARRANTS (1) THAT CONTRIBUTOR HAS THE RIGHT TO ENTER
INTO THIS AGREEMENT AND TO CONVEY TO ESRI THE DELIVERABLE(S) AND/OR PROCESSED
CONTENT LICENSED HEREIN AND (2) THAT THE DATA DESCRIBED IN EXHIBIT 1 IS ACCURATE TO
THE BEST OF ITS KNOWLEDGE. IF CONTRIBUTOR SUBSEQUENTLY LEARNS THAT ANY
INFORMATION SET FORTH IN ANY EXHIBIT(S) IS NOT ACCURATE, CONTRIBUTOR SHALL
PROMPTLY NOTIFY ESRI OF ANY SUCH INACCURACY.
2. CONTRIBUTOR DOES NOT WARRANT THAT DELIVERABLE(S) WILL MEET THE NEEDS OR
EXPECTATIONS OF ESRI OR ITS END USERS, THAT THE OPERATION OF DELIVERABLE(S) WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT ALL NONCONFORMITIES CAN OR WILL BE
CORRECTED. EXCEPT AS EXPRESSLY STATED HEREIN, CONTRIBUTOR DISCLAIMS ALL OTHER
EXPRESS OR IMPLIED WARRANTIES REGARDING ITS DELIVERABLE(S) INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF
PRIVATE AND PUBLIC NETWORKS AND THAT (1) THE INTERNET IS NOT A SECURE
INFRASTRUCTURE (2) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (3) NEITHER
PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE
DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE
REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE
SERVICES
4. IN NO EVENT SHALL CONTRIBUTOR OR ESRI BE LIABLE TO THE OTHER PARTY FOR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES: LOST PROFITS; LOST SALES OR BUSINESS
EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS OR
LOSS OF ANY GOODWILL OR FOR ANY INDIRECT SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF DELIVERABLE(S), HOWEVER CAUSED,
ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT ESRI OR CONTRIBUTOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5. Esri and Contributor agree that the liability of each hereunder for damages to the other party regardless of the form
of action, shall not exceed the total amount paid for the licenses granted herein. This limitation shall not apply to
damages sustained by Esri that arise from (1) any reckless or deliberate misrepresentation by Contributor concerning
its authority to enter into this Agreement or to convey the licenses granted herein or (2) failure by Contributor to
promptly notify Esri of known material inaccuracies in the information supplied or described in Exhibit 1.
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6. ESRI CONSIDERATIONS
For Esri's part, in consideration of the licenses granted above, Esri agrees to cooperate with Contributor and perform or
provide the following:
1. Esri or its contractors will review Contributor's datasets and evaluate their suitability for use in the Community
Maps Program. Esri reserves the right, at its sole discretion not to use or publish the Deliverable(s) or Processed
Content.
2. Esri will provide, in a manner and place that it determines practical, attribution to Contributor as a source of the
Deliverable(s) or Processed Content for the service or dataset in which the Deliverable(s) or Processed Content is
published or distributed.
MISCELLANEOUS TERMS
1. Term and Termination. The term of this Agreement and the license rights contained herein shall be perpetual. Either
party may terminate this Agreement after three (3) years upon providing written notice to the other party at least
ninety (90) days prior to the end of the first three (3)-year term. In the event of termination Esri will have a period of
six (6) months after termination to remove Contributor the Deliverable(s) and Processed Content from its future product
and service offerings.
2. Governing Law. This Agreement will be governed by the laws of the state of California, without reference to conflict of
laws principles. Any dispute arising out of or relating to this Agreement, or the breach thereof, which cannot be settled
first through negotiation shall be finally settled by arbitration administered by the American Arbitration Association (for
US Deliverable[s] providers) or under the Rules of Arbitration of the International Chamber of Commerce (for all other
Deliverable[s] providers). This license agreement shall not be governed by the United Nations Convention on Contracts
for the International Sale of Goods, the application of which is expressly excluded.
3. Relationship of the Parties. Esri and Contributor agree that each is an independent contractor with respect to this
Agreement and that nothing in this Agreement creates or is intended to or should be construed to create an agency,
franchise, partnership, or joint venture relationship. Except as expressly provided in this Agreement, neither party shall
have any power or authority to act in the name or on behalf of the other party except with the prior express written
consent of the other party
4. Export Regulation. The parties acknowledge that this Agreement and the performance thereof may be subject to
compliance with any and all applicable United States laws, regulations, or orders relating to the export of Deliverable(s)
or data thereto. Contributor shall cooperate with Esri and provide reasonable and necessary documentation to allow Esri
to comply with US Export Contiol Law or Regulations concerning the classification of any Contributor's Deliverable(s)
prior to Esri making any Deliverable(s) available on the ArcGIS Online Community Maps website.
5. Sales and Use Taxes. If required by any law or regulation, each party shall assume its respective responsibility for
claiming and remitting to its respective taxing authority any and all sales, use, VAT, or other taxes arising from the
transaction contemplated by this Agreement.
6. Force Majeure. Neither party shall be responsible for any failure to perform or delay in performing any of its
obligations hereunder to the extent that such failure or delay results from causes outside the reasonable control of the
respective party.
7. Notices. All notices and communications required or permitted under this Agreement shall be in writing and shall be sent
by registered or certified mail, postage prepaid, return receipt requested, or by facsimile ("fax") transmission with
confirmed answer to the parties at their respective addresses set forth below or to such other address as either party may
from time to time specify by notice to the other given as provided in this Article.
If to Esri:
Esri
380 New York Street
Redlands, CA 92373-8100
Attn.: Contracts Manager
Phone: 909-793-2853
Fax: 909-307-3020
2011 DAT1680/PSK
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Page 3 of 7
If to Contributor:
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tea J ope_Th, TX lit tba,
Attn.. i i-[-tf)-15
Phone: L-l-?RZ-- (Ole Lt
Fax: $I.-1— 121 CEI e
08/15/2011
8. Successors and Assigns. The Agreement shall be binding upon the parties hereto and their respective successors and
assigns and shall not be construed to confer any right, interest, or benefit in favor of any other person. Notwithstanding
the foregoing, either party may assign its rights and interests under this Agreement, in whole and not in part, with the
prior express written consent of the other party to this Agreement, and such consent shall not be unreasonably withheld
or delayed.
9. Equitable Relief. Both parties agree that any breach of this Agreement by the other party will cause irreparable damage
and that, in the event of such breach, in addition to any and all remedies at law, such party shall have the right to seek an
injunction, specific performance, or other equitable relief to prevent the continuous violations of these terms.
10. Agreement; Amendments. The ArcGIS Online Community Maps Program Participation Agreement and Exhibit 1,
which is incorporated by this reference, constitute the sole and entire agreement of the parties as to the matter set forth
herein and supersede any previous agreements, understandings, and arrangements between the parties relating hereto.
Upon delivery of any Deliverable(s) to Esri by Contributor, Contributor is deemed to have agreed to all of these terms.
Except as otherwise expressly provided herein, any Amendment(s) and/or Addendum(s) to this Agreement must be in
writing and signed by an authorized representative of each party.
This Agreement is hereby executed by the parties' authorized representatives and shall be effective as of the date of the last
party to execute below.
eishil FOE+ I 1)012-Th
(Contributor)
Signature:
Printed Name:
Title:
Date:
Kacn Lc Montgomery
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Attested by:
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Marty lienciri «�
2011 DAT1680/PSK
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Printed Name: ChtL Johnson
Manager, Domestic Contracts
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Signature:
Title:
Date:
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Page 4 of 7
OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
08/15/2011
EXHIBIT I
DESCRIPTION OF DELIVERABLE(S)/PROCESSED CONTENT
fhe following gives a brief summary of content to be made available through this Agreement. This information should
include a description of Deliverable(s) or Processed Content as applicable and any required copyright attribution
notices. If you are contributing multiple Deliverables or layers of Processed Content, you may submit multiple pages for
this exhibit as needed. Contributor should provide complete metadata information with Deliverable(s) that is delivered
to Esri Please indicate in the cheek box below whether this particular form will apply to a Deliverable(s) or to
Processed Content that you have prepared for submission.
DELIVERABLE(S)/PROCESSED CONTENT SUMMARY
Category of contributed content to which this form applies:
0 Deliverable (i.e., raw data)
kt Processed Content (i.e., prerendered map riles)
Type of Deliverable(s)/Processed Content (e.g., imagery, streets, buildings): ?roe oecessea hiss v1Q tokaln iae4
Description: ilykse .A.T 4 itt
61/14 64 rol# t.'
LA.4. Q 4c1AM r�lc paa 9 , ta-an.d1 rei dt4x
Source of Deliverable(s)/Processed Content: �'-l,( of For4- .� '3Q u)or oona� J -&.
t n�
Coverage Area (e.g., city, county, state/province): Ftsce+ LioNein et)!' u+i4t-1 s ETX
Resolution or Scale (e.g., one [ 1 ] m resolution, one to ten thousand [1:10,0001 scale):
Coordinate System (e.g.. UTM, state plane):
sitett, i 1a,v`.a. Nad
Data Format (e.g., TIFF with world file, shapefiles, JPEG):
Approximate Data Size (e.g., ten [I 0) GB, one hundred [100] GB):
Update Frequency (e.g., annual): aafrusa
Deliverable(s)/Processed Content Info URL: C6hA O le -AS
Additional Info (Optional):
INTELLECTUAL PROPERTY NOTICES
For online seri,ices and/or materials, attribution for Esri and other Deliverables) contributors will be provided as
follows. Provide the contributor names) to be used for attribution of the Deliverable(s) described above.
ur
"Source [Esri, Contributor]"
"Copyright C [year(s)j [Esri, Coniributorj."
Preferred Type of Attribution:
Name of Contributor:
'f 4 11I 1 11, X r
iligi i \t
Source Copyright
0 &pa(' 6or4- 1.._r
Addendum 1
Modifications to the Participation Agreement
for the
ArcGIS Online Community Maps Program
The ArcGIS Online Community Maps Participation Agreement with the City of Fort Worth, TX is modified as follows:
A. Under heading, ESRI ACKNOWLEDGMENTS:
On page 2 of Agreement, Article 5, is deleted in its entirety and replaced with:
Est.' and Contributor agree that the liability of each hereunder for damages to the other party, regardless
of the form of action shall not exceed the total amount paid for the licenses granted herein. This
limitation shall not apply to damages sustained by Esri that arise from intentional misrepresentation by
Contributor concerning its authority to enter into this Agreement or to convey the licenses granted
herein
B. Under heading, ESRI CONSIDERATIONS:
On page 3 of Agreement, the additional item No 3 and item No. 4 are added and incorporated by reference:
3. ESRI will grant Contributor, as an existing ESRI software user, the right to access, at no charge,
one (1) or more online services published by ESRI that include Contributor Content. Contributor
may access the service(s) for its internal use with licensed ArcGIS Desktop, ArcGIS Explorer,
ArcGIS Server, Web Mapping APIs, or other appropriate ESRI software.
4. ESRI will provide, at no charge and upon written request by Contributor, access to Contributor's
processed Content created by ESRI or its authorized partner(s) for internal use by Contributor.
C. Under heading, MISCELLANEOUS TERMS:
a. On page 3 of Agreement, Article 1, Term and Termination, is deleted in its entity and replaced with the following:
The term of the Agreement and license rights contained herein shall have an irrevocable initial three (3)
year term. Either party may terminate this Agreement after three (3) years upon providing written notice
to the other party at least ninety (90) days prior to the end of the first three (3)-year term. If written
notice of termination is not received, the term of Agreement will automatically renew for another three
(3) year term. In the event either party believes the other party has breached any obligations under this
Agreement, such party shall notify the breaching party in writing. The breaching party shall have forty
five (45) days from the receipt of the notice to cure the alleged breach and to notify the non -breaching
party in writing that cure has been effected. If the breach is not cured within 45 days, the non -breaching
party shall have the right to terminate the Agreement with written notice. In the event of termination,
Esri will have a period of three (3) months after termination to remove Contributor the Deliverable(s)
and Processed Content from its future product and service offerings.
b. On page 3 of Agreement, Article 2, Governing Law, the first sentence, "This Agreement will be governed by the
lau s of the state of California, without reference to conflict of laws principles.', is deleted in its entity and replaced
with:
This Agreement will be governed by the laws of the State of Texas, without reference to conflict of
laws principles.
c. On page 3 of Agreement, Article 5, Sales and Use Taxes, is deleted in its entity and replaced with:
If required by any law or regulation, each party shall assume its respective responsibility for claiming
and remitting to its respective taxing authority any and all sales, use, VAT, or other taxes arising from
2011 DAT1680/PSK
G181-CM -- 03/17/2011
Page 6 of 7 08/15/2011
the transaction contemplated by this Agreement. If a party claims exemption from any applicable
taxes, documentation of such exemption shall be provided.
d. On page 4 of Agreement, Article 9, Equitable Relief, is deleted in its entity and replaced with:
Both parties agree that any breach of this Agreement by the other party will cause irreparable damage
and that, in the event of such breach, each party has the right to seek any and all remedies available to
it under applicable law.
e. On page 4 of Agreement, Article 10, Agreement; Amendments, is deleted in its entity and replaced with:
The ArcGIS Online Community Maps Program Participation Agreement, Exhibit 1, and this Addendum
No 1, which is incorporated by this reference, constitute the sole and entire agreement of the parties as
to the matter set forth herein and supersede any previous agreements, understandings, and arrangements
between the parties relating hereto. Upon delivery of any Deliverable(s) to Esri by Contributor,
Contributor is deemed to have agreed to all of these terms. Except as otherwise expressly provided
herein, any Amendment(s) and/or Addendum(s) to this Agreement must be in writing and signed by an
authorized representative of each party.
This Addendum No. 1 is hereby executed by the parties' authorized representatives and shall be effective as of the date of the
last party to sign below.
ar742—i- ettatiTh
(Contribut4r
Signature:
Printed Name:
Title:
Date:
etat7
Karen Lc Montgomery
/s).-3//
?.S TO ;70111M AND LEGALITY:
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Attested by:
)(n a A.
Marty Hendrix:
2011 DAT1680/PSK
G181-CM -- 03/ 17/2011
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ENVIRONMENTAL, SYSTEMS -
RESEARCH IIKTI 'U I C.
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Printed Name:
Title:
Date:
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Page 7 of 7
r' Johnson
Manager[Domesttc Contracts
AUG 1 6 2011
NO M&C 1U3 IMBED ti
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
08/ 15/2011