HomeMy WebLinkAboutContract 49504-A1 DocuSign Envelope ID:D2A61C79-FE5C-42E9-B6C9-2C918A3CACE4
CITY SECRETARY
COtqTP,AC-r NO.
FIRST AMENDMENT TO
FORT WORTH CITY SECRETARY CONTRACT NO. 49504
This First Amendment to Fort Worth City Secretary Contract No. 49504 ("First
Amendment") is made between the City of Fort Worth ("Fort Worth"), a municipal
corporation and Pictometry International Cop., a Delaware corporation ("Vendor").
WHEREAS, Fort Worth and Vendor entered into an Agreement identified as Fort Worth
City Secretary Contract No. 49504 beginning August 11, 2017 (the "Agreement"); and
WHEREAS, in 2018,Fort Worth and Vendor renewed the agreement for an additional one-
year term; and
WHEREAS, it is the collective desire of both Fort Worth and Vendor to amend the
Agreement to include additional renewal language;
NOW THEREFORE,known by all these present,Fort Worth and Vendor,acting herein by
the through their duly authorized representatives, agree to the following terms, which amend the
Agreement as follows:
1. The Agreement is hereby amended by adding the follow section to the Agreement:
1. Term. This Agreement shall commence on August 11, 2017 and shall
expire on August 10, 2018, unless terminated earlier in accordance with the
provisions of this Agreement or otherwise extended by mutual agreement of the
parties. This agreement may be renewed by the City's written notice to Vendor no
later than 30 days prior to the expiration of the Agreement.
2. The terms and conditions set forth in Exhibit A shall be added to the Agreement.
3. All other terms,provisions,conditions,covenants and recitals of the Agreement not
expressly amended herein shall remain in full force and effect.
[Signature Page Follows]
RECEIVED
APR 2 4 2020
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��'i'SI�GA�ARY
First Amendment to Fort Worth City Secretary Contract No.49504 COTY SECREMW
FT. WORTH,YX
DacuSign Envelope ID:D2A6iC79-FE5C-42E9-86C9-2C998A3CACE4
ACCEPTED AND AGREED:
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract,including ensuring all performance
By: (((/// ��` and reporting requirements.
Name: Kevin Gunn
Title: Assistant City Manager
Date: ra ,7 J� By:
Name: Mark Deboer
Approval Recommended: Title: Interim Assistant Director, IT Solutions
Approved as to Form a d Legality:
By:
Name: Roger Wright
Title: Interim IT Solutions Director By:
Nam John B. Strong
Attest: Title: Assistant City Attorney
Contract Authorization:
M&C: NA
By; 12�L- Approval Date:NA
Name y J. Kayser
Title: City Secretary
VENDOR:
Pictometry International Corp.
DocuSigned by:
'9'bia4v B29�GHl.t�.
By:
Name: Brian Brocaarm
Title: Corporate Vice President
Date: 4/14/2020
OFFICdAL RECORn
CITY SECRETARY
FT. WORTH,YX
First Amendment to Fort Worth City Secretary Contract No.49504 Page 2 of 5
DocuSign Envelope ID:D2A61C79-EE5C-42E9-B6C9-2C918A3CACE4
El Xillbit A
PICTOMETRY WEB VISUALIZATION OFFERING
TERMS AND CONDITIONS
These Pictometry Web Visualization Offering Terms and Conditions(the"WVO Terms and Conditions"),in combination with the corresponding
Pictometry order form,if any,collectively constitute the license agreement(theWVO License Agreement")that governs your use of Pictometry
web visualization offerings(the"WVO Services"),the images available in the WVO Services,and all associated metadata and data layers included
in,provided with,or derived from those images(the"WVO Licensed Content")provided by Pictometry International Corp. and its affiliated
companies(collectively,"Pictometry"). The terms"you"and"your"in uppercase or lowercase shall mean the individual,entity(e.g.,corporation,
limited liability company,partnership,sole proprietor,etc.)or government agency entering into the WVO License Agreement.
I. GRANT OF RIGHTS;RESTRICTIONS ON USE;OWNERSHIP
1.1 You are granted a nonexclusive,nontransferable,limited right to use and to provide public access to,and use of,the WVO Services
solely for purposes of providing access to WVO Licensed Content in response to human-initiated,discrete location-specific requests
through a single web site operated exclusively by or for you to serve you and your public constituencies and not for resale or
redistribution or commercial use of any nature.
1.2 You may not copy or retain copies of the WVO Licensed Content obtained through the WVO Services or portions thereof onto any
computer or storage device or media for the purpose of creating or maintaining one or more databases of that content for use in
substitution for subsequent access to the content through the WVO Services or any other Pictometry Services,nor will your authorize
or permit any user of the WVO Services to do so.
1.3 You may not exploit the goodwill of Pictometry,including its trademarks,service marks,or logos without the express written consent
of Pictometry.
1.4 You may not remove,alter or obscure copyright notices or other notices contained in the WVO Licensed Content.
L5 You may not offer any part of the WVO Services or the WVO Licensed Content for commercial resale or commercial redistribution in
any medium.
1.6 All right,title,and interest(including all copyrights,trademarks and other intellectual property rights)in the WVO Services and the
WVO Licensed Content in all media belong to Pictometry or its third party suppliers.Neither you nor any users of the WVO Services
or the WVO Licensed Content acquire any proprietary interest in the WVO Services,the WVO Licensed Content,or any copies
thereof,except the limited use rights granted herein.
2. TERMS OF ACCESS TO WVO SERVICES
2.1 You shall provide to all end-users of the WVO Services on the page through which they access such services conspicuous notice of the
following terms of access:(a)WVO Licensed Content available through the WVO is copyrighted material,(b)end-users of the WVO
Services are granted the right to access and view the WVO Licensed Content through the WVO Services for personal use only and not
for commercial purposes of any type, (c) end-users of the WVO Services are prohibited from reproducing, reselling, transferring,
redistributing or creating derivative works from WVO Licensed Content,(d)all right,title,and interest(including all copyrights,
trademarks and other intellectual property rights)in the WO Services and the WVO Licensed Content in all media belong to Pictometry
or its third party suppliers,and(c)THE WVO SERVICES AND WVO LICENSED CONTENT ARE PROVIDED ON AN"AS IS",
"AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF WVO LICENSED CONTENT
EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
2.2 The WVO Services,the WVO Licensed Content,and features and functionality within the WVO Services may be enhanced,added to,
withdrawn,or otherwise changed by Pictometry without notice.
2.3 You are aware and understand that any user data collected or stored by the WVO Services may be accessed by US law enforcement
agencies under the US PATRIOT Act. You hereby release,and agree to hold Pictometry harmless from,all claims against Pictometry
with respect to such access.
3. DISCLAIMERS
3.1 The WVO Services and the WVO Licensed Content are provided for visualization purposes only,are not authoritative or definitive,
and do not constitute professional engineering or surveying services.
3.2 The WVO Services and the WVO Licensed Content are not to be relied upon to precisely locate or determine property boundaries and
should not be used in lieu of a professional survey where the accuracy of measurements,distance,height,angle,area and volume,may
have significant consequences.
3.3 All measurements and reports generated by the WVO Services or from the WVO Licensed Content are based upon second order
visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional
engineering or surveying purposes.
3A Contour information obtained from the WVO Services or contained in the VIVO Licensed Content is generated from undersampled
elevation data,is provided for informational purposes only,and is not suitable for use as the basis for hydrographic computations,
estimations or analyses.
3.5 While the WVO Services and the WVO Licensed Content may be considered useful supplements for life critical applications,they are
not designed or maintained to support such applications and Pictometry and its third party suppliers of the WVO Services and the
WVO Licensed Content hereby disclaim all liability for damages,claims and expenses arising from such use.
3.6 Your reliance on the WVO Services and the WVO Licensed Content should only be undertaken after an independent review of their
accuracy,completeness,efficacy,timeliness and adequacy for your intended purpose.
3.7 Pictometry and each third party supplier of any portion of the WVO Services or the WVO Licensed Content assume no responsibility
for any consequences resulting from the use of the WVO Services or the WVO Licensed Content.
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3.8 Pictometry and each third party supplier of any portion of the WVO Services or the WVO Licensed Content hereby disclaim all
liability for damages,claims and expenses arising from or in any way related to the accuracy or availability of the WVO Services and
the WVO Licensed Content.
3.9 By accepting these WVO Terms and Conditions or by using the WVO Services or the WVO Licensed Content,you waive any and all
rights you may have against Pictometry,each third party supplier of any portion of the WVO Services or the WVO Licensed Content,
and each of their directors,officers,members and employees,arising out of use of or reliance upon the WVO Services or the WVO
Licensed Content.
4. LIMITED WARRANTY
4.1 Pictometry represents and warrants that it has the right and authority to make the WVO Services and the WVO Licensed Content
available to you as authorized expressly by this WVO License Agreement.
4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.1,THE WVO SERVICES AND WVO LICENSED CONTENT ARE
PROVIDED ON AN"AS IS","AS AVAILABLE"BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF WVO
LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES,INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
S. LIMITATION OF LIABILITY
5.1 No Covered Party(as defined below)shall be liable for any loss,injury,claim,liability,or damage of any kind resulting in any way
from(a)any errors in or omissions from the WVO Services or the WVO Licensed Content,(b)the unavailability or interruption of the
VIVO Services or any features thereof or the WVO Licensed Content,(c)your or any other party's use of the WVO Services or the
WVO Licensed Content,(d)the loss or corruption of any data or equipment in connection with the WVO Services or the WVO
Licensed Content,(e)the content,accuracy,or completeness of the WVO Licensed Content,all regardless of any assistance received
in the use of the WVO Service from a Covered Party,(f)any delay or failure in performance beyond the reasonable control of a
Covered Party,or(g)any content retrieved from the Internet even if retrieved or linked to from within the WVO Services.
5.2 "Covered Party"means(a)Pictometry,its affiliates and any officer,director,employee,subcontractor,agent,successor,or assign of
Pictometry or its affiliates;and(b)each third party supplier of any WVO Licensed Content,third party alliance entity,their affiliates,
and any officer,director,employee,subcontractor,agent,successor,or assign of any third party supplier of any WVO Licensed
Content or third party alliance entity and their affiliates.
5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW,UNDER NO CIRCUMSTANCES WILL THE
AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR
RELATING TO THE WVO SERVICES OR THE WVO LICENSED CONTENT OR THIS WVO LICENSE AGREEMENT
EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE WVO SERVICES
IN THE TWENTY-FOUR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT
TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY
HAVE AGAINST ANY COVERED PARTY.
5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW,NEITHER YOU NOR THE COVERED PARTIES WILL
BE LIABLE FOR ANY SPECIAL,INDIRECT,INCIDENTAL,OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER(INCLUDING,WITHOUT LIMITATION,ATTORNEYS'FEES)IN ANY WAY DUE TO,RESULTING FROM,
OR ARISING IN CONNECTION WITH TIME WVO SERVICES,THE WVO LICENSED CONTENT,OR THE FAILURE OF ANY
COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO A PARTY's INDEMNITY OBLIGATIONS OR YOUR(OR ANY OTHER WVO SERVICES USERS')
INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO
PICTOMETRY OR ITS THIRD PARTY SUPPLIERS.
5.5 Notwithstanding anything to the contrary in this Section 5:
(a)If there is a breach of the warranty in Section 4.1 above,then Pictometry,at its option and expense,shall either defend or settle any
action and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent,
trademark,service mark,copyright or trade secret infringement related to use of the WVO Services or the WVO Licensed
Content,asserted against you by such third party provided:(i)all use of the WVO Services and the WVO Licensed Content was
in accordance with this WVO License Agreement;(ii)the claim,cause of action or infringement was not caused by you
modifying or combining the WVO Services or the WVO Licensed Content with or into other products,applications,images or
data not approved by Pictometry;(iii)you give Pictometry prompt notice of such claim;and(iv)you give Pictometry the right to
control and direct the investigation,defense and settlement of such claim. You,at Pictometry's expense,shall reasonably
cooperate with Pictometry in connection with the foregoing.
(b)In addition to Section 5.5(a),if the WVO Services,the operation thereof or the WVO Licensed Content become,or in the opinion
of Pictometry are likely to become,the subject of a claim of infringement,Pictometry may,at its option and expense,either:(i)
procure for you the right to continue using the WVO Services or the WVO Licensed Content,(ii)replace or modify the WVO
Services or the WVO Licensed Content so that they become non-infringing;or(iii)terminate the WVO License Agreement on
notice to you and grant you a pro-rata refund or credit(whichever is applicable)for any pre-paid fees or fixed charges.
(c)The provisions of Sections 5.5(a)and(b)shall constitute your sole and exclusive remedy for the respective matters specified
therein.
6. MISCELLANEOUS
6.1 The terms and conditions of this WVO License Agreement may be changed from time to time immediately upon notice to you. If any
changes are made to this WVO License Agreement,such changes will:(a)only be applied prospectively;and(b)not be specifically
directed against you but will apply to all similarly situated Pictometry customers using the WVO Services. You may terminate this
WVO License Agreement upon written notice to Pictometry if any change to the terms and conditions of this WVO License
Agreement is unacceptable to you. For termination to be effective under this Section 6.1,written notice of termination must be
provided to Pictometry within 90 days of the effective date of the change. Continued use of the WVO Services following the effective
date of any change constitutes acceptance of the change,but does not affect the foregoing termination right. Except as provided
above,this WVO License Agreement may not be supplemented,modified or otherwise revised unless signed by duly authorized
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DocuSign Envelope ID:D2A61C79-FE5C-42E9-B6C9-2C918A3CACE4
representatives of both parties. Furthermore,this WVO License Agreement may not be supplemented,modified or otherwise revised
by email exchange,even if the email contains a printed name or signature line bearing signature-like font. The foregoing does not
prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties,provided such
signatures include digital certifications or are otherwise authenticated.
6.2 In the event of a breach of this WVO License Agreement by you or someone using the VIVO Services,Pictometry may temporarily
suspend or discontinue providing access to the WVO Services without notice and Pictometry may pursue any other legal remedies
available to it.
6.3 All notices and other communications hereunder shall be in writing. Notices shall be deemed to have been properly given on the date
deposited in the mail,if mailed or on the date received,if delivered in any other manner. Legal notices to Pictometry should be sent to
Pictometry,Attn:General Counsel,25 Methodist Hill Drive,Rochester,New York 14623.
6.4 The failure of you,Pictometry,or any third party supplier of the WVO Services or any WVO Licensed Content to enforce any
provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
6.5 You may not assign or otherwise transfer your rights or delegate your duties under this WVO License Agreement without the prior
written consent of Pictometry, Any attempt by you to assign,transfer or delegate your rights or obligations under this WVO License
Agreement without Pictometry's consent shall be void,and shall also void the limited license granted to you by this WVO License
Agreement. This WVO License Agreement and any amendment thereto shall be binding on,and will inure to the benefit of the parties
and their respective successors and permitted assigns.
6.6 This VIVO License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York,excluding
its conflicts of law principles. Unless you are a government entity,in the event that any legal proceedings are commenced with
respect to any matter arising under this WVO License Agreement,the parties specifically consent and agree that the courts of the State
of New York or,in the alternative,the Federal Courts located in the State of New York shall have exclusive jurisdiction over each of
the parties and over the subject matter of any such proceedings,and that the venue of any such action shall be in Monroe County,New
York or the U.S.District Court for the Western District of New York,as applicable.
6.7 This WVO License Agreement will be enforced to the fullest extent permitted by applicable law.If any provision of this WVO
License Agreement is held to be invalid or unenforceable to any extent,then(a)such provision will be interpreted,construed and
reformed to the extent reasonably required to render it valid,enforceable and consistent with its original intent and(b)such invalidity
or unenforeeability will not affect any other provision of this WVO License Agreement.
6.8 Where applicable,each affiliated company of Pictometry and each third party supplier of the WVO Services or any VIVO Licensed
Content has the right to assert and enforce the provisions of this WVO License Agreement directly on its own behalf as a third party
beneficiary.
6.9 In the event of a breach of your obligations under this WVO License Agreement or your payment obligations with respect to access to
the WVO Services or the WVO Licensed Content,you agree to pay all of Pictometry's costs of enforcement and collection,including
court costs and reasonable attorneys'fees.
6.10 This WVO License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and
supersedes any prior written or verbal communications,representations,proposals or quotations relating to that subject matter.
[END OF WEB VISUALIZATION OFFERING TERMS AND CONDITIONS]
First Amendment to Fort Worth City Secretary Contract No.49504 Page 5 of 5