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HomeMy WebLinkAbout2010-024 Council Resolution• Council Member Rafferty its adoption: introduced the following resolution and moved • • CITY OF LINO LAKES RESOLUTION NO. 10 -24 RESOLUTION APPROVING THE RICE CREEK WATERSHED DISTRICT LIDAR PRODUCTS LICENSE AGREEMENT WHEREAS, the Rice Creek Watershed will provide the City of Lino Lakes with the following data upon completion of the LIDAR Products License Agreement: — Hybrid Images create from LIDAR intensity and hill shade data. — Digital Elevation Model. — Two Foot Contours. WHEREAS, the LIDAR products have been developed for application to watershed -wide planning as well as to the elevation of local consequences of development or public infrastructure; WHERAS, the LIDAR Products have been developed with public resources, and it is the Rice Creek Watershed District's intent that they be made available to other public bodies and the public generally to provide the greatest public benefit for purpose of water resource planning, management and protection the Rice Creek Watershed District finds that wide usage of LIDAR products within the watershed has a watershed -wide benefit, wishes to promote such us, and therefore has determined not to charge others for their use; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LINO LAKES, MINNESOTA that: 1. The License Agreement for LIDAR Produ i h the ' ire'Creek Watershed District is hereby approved. JUI an e Bartell, City Jeff Rein , Mayor Adopted by the Lino Lakes City Council this 8th day of March, 2010. The motion for the adoption of the foregoing resolution was duly seconded by Council Member Bopspr and upon vote being taken thereon, the following voted in favor thereof: Rafferty, Roes r,O.'Donnell, Gallup, Reinert The following voted against same: none Whereupon said resolution was declared duly passed and adopted. • • • AGENDA ITEM 6C STAFF ORIGINATOR: Michael Grochala, Community Development Director CITY COUNCIL MEETING DATE: March 8, 2010 TOPIC: ACTION REQUIRED: BACKGROUND Resolution No. 10 -24, Rice Creek Watershed District LIDAR Products, License Agreement Simple Majority Light Detection and Ranging (LIDAR) is a remote sensing system used to collect topographic data. LIDAR data was collected by the Rice Creek Watershed District (RCWD) for the entire watershed area in the fall of 2008. RCWD will use the LIDAR Data to support hydrologic and hydraulic modeling, aid in permit reviews, and as a general resource management tool. The LIDAR Products that the City will receive are as follows: — Hybrid Images create from LIDAR intensity and hill shade data. — Digital Elevation Model. — Two Foot Contours. RCWD is offering the LIDAR products for no costs with the completion of the attached license agreement. RECOMMENDATION Staff is recommending the adoption of Resolution No. 10 -24, Approving the Rice Creek Watershed District LIDAR Products, License Agreement. ATTACHMENTS 1. Resolution No. 10 -24 2. LIDAR Products License Agreement • • • LICENSE AGREEMENT RICE CREEK WATERSHED DISTRICT LiDAR PRODUCTS Licensee: THIS LICENSE AGREEMENT is entered into by the Rice Creek Watershed District ( "District "), a political subdivision of the State of Minnesota, and ,a ( "User "). WHEREAS the District has developed a set of Light Detection and Ranging (LiDAR) products ( "LiDAR products ") described as: • Raw classified LiDAR data; • Filtered bare earth LiDAR data; • Hybrid one -meter black and white georeferenced TIF images; • Shapefile indicating tile boundaries; and • Other products derived from LiDAR data including but not limited to: (a) digital elevation or other terrain models; and (b) contours based on the LiDAR. WHEREAS the LiDAR products have been developed for application to watershed -wide planning as well as to the evaluation of the local consequences of development or public infrastructure projects; WHEREAS the LiDAR products have been developed with public resources, and it is the District's intent that they be made available to other public bodies and the public generally to provide the greatest public benefit for purposes of water resource planning, management and protection; WHEREAS the District finds that wide usage of the LiDAR products within the watershed has watershed -wide benefit, wishes to promote such use, and therefore has determined not to charge others for their use; WHEREAS the District has determined that the LiDAR products are classified as "trade secret information," nonpublic data and otherwise data not subject to disclosure under the Minnesota Data Practices Act, Minnesota Statutes Chapter 13, but that it is appropriate for the District to provide for the disclosure of the LiDAR products in accordance with certain protections and commitments by User as set forth in this License Agreement; NOW THEREFORE, in consideration of the foregoing, the District and User agree as follows: 1 • • • 1. Use of LiDAR Products 1.1 Authorized Uses. User is granted a nonexclusive, nontransferable and nonassignable license to use the LiDAR products. This license shall be in effect only during compliance by User and its agents, consultants and contractors (ACCs) with the terms and conditions of this License Agreement. User and, pursuant to section 1.3, its ACCs may use the LiDAR products in the form provided by the District for User's own authorized purposes and for no other purpose. User and its ACCs may modify or transfer the LiDAR products, or merge the LiDAR products into other data bases, only for User's authorized purposes. User and its ACCs may operate on the LiDAR products using such proprietary or public software as it independently is authorized to use and may disclose or distribute the products of that operation, but it may not disclose or distribute the LiDAR products in the same or substantially the same form as received from the District. User may duplicate the LiDAR products for use by User and its ACCs, provided the central processing units on which the LiDAR products are maintained support only equipment operated by User and its ACCs, and the LiDAR products are used only for User's own authorized purposes. Except for off-site backup pursuant to established procedures, User and its ACCs shall not remove the LiDAR products from their place of business. 1.2 Unauthorized Uses. User and its ACCs shall not use the LiDAR products on behalf of any individual, organization, corporation, government entity, or any other party other than User. User's ACCs shall use the LiDAR products only in the conduct of User's business and for User's authorized purposes. User and its ACCs shall not duplicate or disclose the LiDAR products to any third parties unless such use, duplication or disclosure is expressly authorized in writing by the District. User and its ACCs shall not charge third parties for the availability of the LiDAR products. This shall not prevent User and its ACCs from charging third parties as otherwise authorized for its software costs, staff time or other ancillary costs associated with modeling and analysis using the LiDAR products. User acknowledges that the District has declared the applicability of copyright protection to the LiDAR products. User shall conform to all legal requirements consistent with the copyright status of the data as declared by the District. 1.3 Third Party Access. If it is necessary for User to make the LiDAR products available to an outside ACC for User's authorized purposes, User must obtain from each ACC and provide to the District a signed copy of the LiDAR Products License Agreement Third -Party Certification attached to and incorporated into this License Agreement as Attachment A, and must receive a written authorization from the District. Under the Third -Party Certification, ACCs are subject to all terms and obligations of this License Agreement to the same extent as such terms and obligations apply to User. 2 • 1.4 Data Security. User and its ACCs agree to take all necessary and reasonable steps to ensure the LiDAR products are not disclosed or made accessible in whole or in part to third parties except as may be authorized in this License Agreement. User and its ACCs agree they will not knowingly or negligently allow their employees or agents to copy, sell, disclose or otherwise make the LiDAR products available to others. User and its ACCs agree to immediately notify the District by telephone and in writing of any unauthorized sale or other disclosure. User and its ACCs further agree to prevent unauthorized disclosure through appropriate security measures including, but not limited to, providing physical security for copies of the LiDAR products and taking all steps that they take to protect tangible and intangible data products of their own that they regard as proprietary, confidential or nonpublic. 1.5 Data Practices Act. User shall treat the LiDAR products as nonpublic data not subject to public disclosure under the Minnesota Data Practices Act and shall advise any requestor of the data classification accordingly. User shall notify the District immediately of any challenge to User's withholding of the LiDAR products and shall not release the LiDAR products, or any part thereof, pursuant to the Data Practices Act without written authorization from the District. 1.6 Reservation of Rights. The LiDAR products are the exclusive property of the District, which retains all right, title and interest in the LiDAR products, including the right to license the LiDAR products to other users. Any right or remedy provided to the District in this License Agreement shall be nonexclusive and in addition to any other right or remedy available to the District in law or equity. 1.7 Errors and Omissions. User timely shall advise the District in writing of any errors or omissions it finds within the LiDAR products. 2. License Agreement Term and Termination 2.1 Term. The term of this License Agreement shall commence upon execution of this License Agreement by both parties and shall end on the January 31 first following commencement. Notwithstanding, the License Agreement shall renew automatically from year to year. 2.2 Termination. Notwithstanding section 2.1, the District may terminate this License Agreement at any time on written notice to User if User fails to comply with the terms and conditions of this License Agreement. The District or User may terminate the License Agreement without cause on 30 -day notice to the other party. 2.3 Return or Destruction of LiDAR Products. When this License Agreement has been terminated, User must either destroy all copies of the LiDAR products and provide to the District written certification of the destruction, or return all copies of the LiDAR products to the District. 3 • • 3. Limited Warranty and Disclaimers 3.1 Limited Warranty. The LiDAR products provided by the District are made available to User subject to the following limitations and restrictions: (a) User is responsible for the installation and use of the LiDAR products and the results or consequences obtained from User's installation or use of the LiDAR products. (b) The District does not warrant that the LiDAR products are error free, and disclaims any other warranties, express or implied, respecting this License Agreement or the LiDAR products. (c) THE LiDAR PRODUCTS, AND ASSOCIATED MANUALS, REFERENCE MATERIALS AND TECHNICAL DOCUMENTATION (IF ANY), ARE PROVIDED "AS IS" WITHOUT ANY SUPPORT WHATSOEVER AND WITHOUT WARRANTY AS TO THEIR PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LiDAR PRODUCTS IS ASSUMED BY USER. (d) THE DISTRICT SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, OTHER FINANICAL LOSS, LOSS OF DATA, OR ANY OTHER DAMAGE OF ANY KIND ARISING OUT OF USER'S USE OR ATTEMPTED USE OF THE LiDAR PRODUCTS, OR ANY THIRD PARTY CLAIMS THAT MAY RESULT FROM THE USE OF THE LiDAR PRODUCTS, EVEN IF THE DISTRICT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 3.2 Sole Remedies. User's sole and exclusive remedies for breach of these limited warranties shall be as follows: (a) User may return the LiDAR products to the District, which, at its discretion, may replace or repair the LiDAR products and return the LiDAR products to User; or (b) User may terminate this License Agreement in accordance with section 2, above. 3.3 Indemnification. User shall hold harmless, defend and indemnify the District, its officers, board members, employees and agents from any and all actions, costs, damages and liabilities of any nature related to User's use of the LiDAR products, to the extent permitted by law. Nothing in this License Agreement shall be construed to waive any immunity, defense or limit on liability applicable to the District or User or otherwise to create a right in any third party. 4 • • 4. General Terms and Conditions 4.1 Whereas Clauses. All recitals included in this License Agreement are incorporated into and considered a part of the Agreement. 4.2 Amendment. The terms of this License Agreement may be amended only by written agreement of the District and User. 4.3 Governing Law. This License Agreement shall be governed by and interpreted according to the laws of the State of Minnesota. 4.4 Waiver. No waiver of any violation of this License Agreement shall constitute a waiver of any subsequent violation, whether of the same or of any other term. Subsequent performance of any of the terms of this License Agreement shall not constitute a waiver of any preceding violation, regardless of the other party's knowledge of the preceding violation at the time of subsequent performance. The delay or omission of any party's exercise of any right arising from any default shall not affect or impair the party's rights regarding the same or future default. 4.5 No Agency. The District and User are independent parties for all legal purposes hereunder, and nothing herein shall be construed to create an agency, joint venture, partnership or other form of business association between the parties. 4.6 Assignment. User shall not assign, sublet or transfer this License Agreement in whole or in part, without the prior written consent of the District. Any attempt to assign, sublet or transfer this License Agreement without prior written consent shall be void and of no force or effect. 4.7 Correspondence. Correspondence regarding this License Agreement or the LiDAR products shall be directed as follows: To the District: LiDAR Products Coordinator Rice Creek Watershed District 4325 Pheasant Ridge Drive NE Suite 611 Blaine MN 55449 -4539 To User: [name] [organization] [mailing address] [city, state, zip] 5 • • • 4.8 Survival of Provisions. All obligations of User regarding use and protection of the LiDAR products; all obligations to hold harmless, defend and indemnify; and limitations on all warranties in this License Agreement shall survive termination of the Agreement. 4.9 Authority. The person or persons executing this License Agreement on behalf of User represent that they are duly authorized to execute this License Agreement on behalf of User and represent and warrant that this License Agreement is a legal, valid and binding obligation enforceable according to its terms. INTENDING TO BE LEGALLY BOUND by the foregoing terms: Print title: Date: (Attach Resolution of Governing Body Authorizing Signature) RICE CREEK WATERSHED DISTRICT Administrator Date: 6 • ATTACHMENT A LiDAR PRODUCTS LICENSE AGREEMENT THIRD-PARTY CERTIFICATION hereby requests authority to exercise rights to use the Rice Creek Watershed District's LiDAR Products as an agent, consultant or contractor to under the License Agreement executed on between and the Rice Creek Watershed District. In assuming that authority, and in consideration therefore, hereby represents and affirms that it has received and is familiar with the cited License Agreement, that its authority is limited by the terms of the Agreement, and that it is fully subject to all limitations, obligations and liabilities set forth in that Agreement to the same extent as if it were a signatory thereto. • By Print name: Print title: Date: (Notary Acknowledgment) • 7