HomeMy WebLinkAboutPICTOMETRY INTERNATIONALl 1A-2003-029
LICENSE AGREEMENT
THIS AGREEMENT is made as of the date set forth below (the "Effective Date") by and between
Pictometry International, Corp., a Delaware company with offices at 100 Town Centre Drive, Suite A
Rochester, NY 14623 CPictometry"), and the City of Santa Ana, a charter city and municipal
corporation duly organized and existing under the Constitution and laws of the State of California
(the "Licensee").
Intending to be legally bound, Pictometry and the Licensee (each a "party") hereby agree:
GENERAL
1.1 Licensed Products. This Agreement relates to:
(a) "Images," namely georeferenced images of land some of which Pictometry
will make with its proprietary systems prior to delivery and some of whieh it
has or may acquire rights to use from others, Pictometric Images, and
Electronic Photo Images which do not have the georeferencing data;
(b) "Software, "namely certain proprietary computer software, one part of which
is referred to as the Electronic Field Study software (the "EFS"), and the other
part of which is referred to as the Client Image Warehouse software ("CIW"),
which can be used to access and display the Images; and
(c) "Documentation," comprised of written and/or electronic materials containing
instructions and other information related to the use of the Images and the
Software.
This Agreement pertains only to the particular Images described in Schedule A and
schedule C attached hereto and incorporated herein by reference (the "Licensed
Images") and the particular copies of the Software listed in Schedule A (the "Licensed
Software"), all of which, along with the Documentation, are together referred to as the
"Licensed Products." attached hereto and incorporated herein by reference. This
Agreement does not apply to any other images, software, or other products that may
from time to time be owned, used, published, or distributed by Pictometry.
1.2
System Installation. After execution of this Agreement, Licensee will provide
storage for the installation of the Licensed Images and Licensed Software as set forth
in Schedule A to Pietometry. Pictometry shall install a copy of the Licensed Images
and Licensed Software on that media. Pictometry will provide the number of copies
of the Documentation, as specified in Schedule A. The Licensee will install the
Licensed Images and Licensed Software from the media onto computers to be
designated by the Licensee as provided in Section 4.3 below. Upon request by the
Licensee and payment of Pictometry's fees and expenses as set forth from time to time
on Pictometry's price lists, Pictometry will deliver additional copies of the Licensed
Images and Licensed Software for other or replacement computers. The Licensee will
be responsible for assuring that the computer system being used for these purposes
will satisfy the minimum system requirements set forth on Schedule A.
1.3
Licensee May Authorize Subdivisions. The Licensee may from time to time
authorize any department or any subdivision of the Licensee (hereinafter
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"Subdivisions") to have the Licensed Products installed on computers owned (or
leased) and used by those Subdivisions and to use and execute the Licensed Software
for official municipal purposes only, all in accordance with this Agreement. The
installation of the Client Image warehouse and EFS and the training of Subdivision
personnel may be done only by either the Licensee or Pictometry. The Subdivisions
authorized for such installation, use, and execution (the "Authorized Subdivisions"), as
well as the specific servers and Authorized Workstations involved and the Author/zed
Users employed by those Subdivisions, will be designated from time to time by the
Licensee as provided in Section 4.4 below. All Author/zed Subdivisions shall operate
under this Agreement as agents of the Licensee, and Pictometry may look to the
Licensee alone for assuring compliance with the terms and conditions of this
Agreement.
1.4
Authorized Users. As used in this Agreement, "Authorized Users" shall mean such
persons in the employ of Licensee, or in the employ of an Authorized Subdivision, as
may be designated in writing by the Licensee from time to time pursuant to Section
4.4 below to use and execute the Licensed Software on the designated computers.
Licensee agrees: (a) that it will not allow any persons other than Authorized Users to
use or operate, or to have any other access to, any of the Licensed Products, (b) that it
will not allow access to any of the Licensed Software or any Images except through
Authorized Workstations, and (c) that it will cause all Authorized Users to comply
with all of the terms, conditions, and limitations applicable to the Licensee under this
Agreement.
1.5
Authorized Workstations. As used in this Agreement, "Authorized Workstation"
shall mean a computer workstation that has access to the Client Image Warehouse and
which has installed on it the related Licensed Software in accordance with Section
2. l(a) below. No workstation shall be an Authorized Workstation unless its
identification and location is given in writing to Pictometry as required by Section 4.4
below.
GRANT OF LICENSE
2.1
License Grant, Uses, and Certain Fees. In consideration for the payment of the
License Fees provided for in Section 3 below, and subject to the other terms and
conditions of this Agreement, Pictometry hereby grants to Licensee, and Licensee
hereby accepts, a nonexclusive, nontransferable, limited license (the "License") as
follows:
(a) Installation. To install the Client Image Warehouse on servers and related
Licensed Software on Authorized Workstations, all of which shall be owned
(or leased) by, shall be located on the property of, shall be under the control of,
and shall be used by the Licensee or by an Authorized Subdivision (which
servers and workstations will be designated pursuant to Section 4.4 below).
None of the Licensed Products shall be accessed except through such
designated servers and Authorized Workstations.
(b) Documentation. To copy and use the related user documentation included in
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2.2
the Licensed Products in connection with the activities described in this
Section 2.1.
Uses. Through Authorized Users only, to use and execute the Licensed
Software on those designated servers and Authorized Workstations in the
conduct of the public business of the Licensee or of the Authorized
Subdivisions and use and print copies of the Licensed Images in the following
activities (and no others):
(1) For Internal Business. In the conduct of the operations of the Licensee
and/or of the Authorized Subdivisions, to use and execute the Licensed
Products for internal use in pursuit of its or their public responsibilities.
(2) For Persons Doing Business With Licensee. Under the supervision of
Authorized Users, allow representatives of persons doing or proposing to do
business with the Licensee or an Authorized Subdivision on Licensee
Projects (defined below) to use and execute the Licensed Software and to
make copies of the Licensed Images with ink or toner on substrate
(hereinafter "Hard Copies") at the Licensee or Authorized Subdivisions'
facilities only, but not to make any electronic or digital copies of the
Licensed Images ("Digital Copy"). For these purposes, "Licensee Projects"
shall mean any plan or effort for construction, equipment acquisition, or
other improvement in real estate, offices, facilities, or other operating assets
that are, or will be, owned and used by the Licensee or an Authorized
Subdivision in pursuit of its public responsibilities, including any such assets
(such as roads and public buildings) that are provided by the Licensee for use
by the public. The Licensee or any Authorized Subdivision may sell Hard
Copies made pursuant to this subsection 2.1 (c)(2) at whatever price, or no
price, as the Licensee or Authorized Subdivision may determine, and without
paying any special License Fee or other remuneration to Pictometry.
(3) For Public Use. Through Authorized Users only, to use and execute the
Licensed Software solely for the purpose of making Hard and Digital Copies
of Licensed Images for sale to any persons desiring them (which Hard
Copies may contain annotations of information stored in the Licensed
Software and related to the property shown). With respect to copies of
images licensed by Licensee and owned by Pictometry made pursuant to this
subsection 2.1 (c)(3), the Licensee or Authorized Subdivision involved shall
charge a sales price, which Pictometry will specify at a minimum, for each
Hard and Digital Copy and on a regular basis pay to Pictometry a percentage
of that price, all as more fully provided in the attached Schedule B.
Pictometry, in subsequent License renewals, may choose, for any reason, not
to renew the License for the Licensee to continue to sell Hard Copy and
Digital Licensed Images.
Limitations On License. In addition to its other obligations under this Agreement,
Licensee agrees: (a) that nothing under this Agreement authorizes it to engage in any
service bureau work, to exercise or provide any multiple-user license, or to enter into
any time-sharing arrangement, except as expressly authorized with respect to
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Authorized Subdivisions, (b) that Licensee will not authorize or allow any remote
access to the Licensed Products and will only allow access to them through
Authorized Workstations, (c) that Pictometry shall not be obligated to provide support
for the Licensed Products in any manner other than as set forth in Schedule A or to
revise, improve, or otherwise change the Licensed Software in any way, (d) that the
Licensee is responsible for selecting Authorized Users who are qualified to operate the
Licensed Software on Authorized Workstations and are familiar with the information,
calculations, and reports that serve as input and output of the Licensed Software, (e)
that the Licensee and its Authorized Subdivisions may not copy, download, store,
publish, transmit, transfer, sell, or otherwise install or use the Licensed Software or
any Images or any portion of the Images in any form or by any means, except (i) as
expressly permitted by this Agreement, (ii) with Pictometry's prior written permission,
or (iii) to the extent not expressly prohibited by this Agreement, as allowed under the
fair use provision of the Copyright Act (17 U .S.C. § 107). Licensee agrees that it will
deliver to all recipients of any Hard Copies, and to any other persons who may have
access to any of the Images, all such disclaimers and other information that Pictometry
may request so as to assist those persons in understanding the limitations on the
accuracy of the information developed through the Licensed Products.
2.3
Pictometry's Reserved Rights. Pictometry reserves the right from time to time, in its
sole discretion and without liability to Licensee, to create new versions of or modules
of additional functionality for any part of the Licensed Products, which versions and
modules may be acquired on a nonexclusive basis by Licensee under a separate
agreement. Pictometry may, in addition, produce updates of the Licensed Products,
which will be supplied without additional cost to Licensee. Pictometry may continue
to sell or license the use of its software and imagery, including the Licensed Products,
to such persons and entities and on such terms and conditions as Pictometry may in its
sole discretion determine.
LICENSE FEES
3.1
License Fees. In consideration for the License, and subject to the other terms and
conditions of this Agreement, the Licensee hereby agrees to pay to Pictometry the
annual and other fees described on Schedule A (altogether the "License Fees"),
payment to be made as provided in Schedule A. Any tax, including sales tax is in
addition to the License Fees and is the responsibility of the Licensee. The first and
second annual fees shall be earned on the dates the products are delivered to the
Licensee, as provided on schedule A.
OBLIGATIONS OF LICENSEE
4.1
Geographic Data. Licensee agrees to provide to Pictometry any geographic data
available, including digital elevation models, street centerline maps tax parcel maps,
centroids, etc. that are owned by Licensee. This data will be incorporated into the
Image Library licensed to the Licensee. Licensee agrees that Pictometry may
distribute any data owned by Licensee with specific approval of Licensee.
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4.2
Technical Support Contacts. Licensee agrees to name Licensee personnel to act as
technical support contacts. These contacts will receive technical training as provided
in Schedule A. These contacts will coordinate all requests and inquiries from all
Licensee Authorized Users. If additional support is required by Licensee, only these
technical support contacts will have access to telephone support from Pictometry.
Licensee has the right to modify the technical support contact list at any time.
4.3
Designation of Authorized Subdivisions, Users, Servers, Workstations. Licensee
agrees that, within thirty (30) days after receipt of thc Licensed Products, it will
furnish to Pictometry in writing lists of:
(a) All servers and Authorized Workstations on which any of the Licensed
Software is or will be installed, as provided in Section 2.1 above, including
their locations and identification information.
The Licensee agrees that it will send revisions of those lists to Pictometry annually
thereafter, adding or deleting the information on them so that the lists will be complete,
accurate, and up-to-date. In order to be in compliance with this Agreement at all times,
the Licensee may submit revisions in between those annual updates.
4.4
Needs Assessment Study. Pictometry may render services in connection with
preliminary assessment of the land information needs of the Licensee. Payment and
terms for that service are described in Schedule A.
4.5
Market Conditions. Licensee may advise Pictometry promptly concerning any
market information or sales leads that come to Licensee's attention respecting
Licensed Products.
4.6
Costs and Expenses of Licensee Performance. Except as expressly provided herein
or agreed in writing by Pictometry, Licensee will pay all costs and expenses incurred
in the performance of Licensee's obligations under this Agreement.
4.7
Notification. Licensee will: (a) notify Pictometry in writing of any claim or
proceeding involving any of the Licensed Products within ten days after Licensee
learns of the claim or proceeding; and (b) report promptly to Pictometry all claimed or
suspected defects in any Licensed Product.
PROPRIETARY RIGHTS
5.1
Licensed Products and Marks. The parties acknowledge and agree that Pictometry
shall have and retain sole and exclusive ownership and all right, title, and interest in
and to all Images, Licensed Software, and Documentation and all copyrights, patents,
and other proprietary rights in or associated with each of the Licensed Products
(hereinafter the "Proprietary Rights"). Licensee agrees: (a) that it will not, during or
after the term of the License, assert or claim any interest in, or do anything directly or
indirectly that may adversely affect the validity of or infringe any Proprietary Right,
(b) that it will use reasonable efforts to protect the Proprietary Rights and to cooperate
in Pictometry's efforts to protect them, including placing all copyright notices and
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5.2
5.3
5.4
5.5
other indications of Pictometry's ownership on all copies of Images and all other
property of Pictometry as Pictometry may from time to time instruct, and (c) that it
will notify Pictometry promptly of any known or suspected breach of any Proprietary
Rights that comes to Licensee's attention.
Use of Pictometry Marks. Licensee acknowledges that Pictometry owns and retains
all ownership rights in trademarks, trade names, logos, and designations used by
Pictometry in connection with the Licensed Products. Licensee agrees not to attach
any additional trademarks, trade names, logos or designations to any Pictometry
product or to any copies of any of the Licensed Images. Licensee may, however,
include a Licensee seal and appropriate Licensee Department contact information so
long as these annotations in no way obscure or deface the Pictometry marks. Licensee
further agrees that Licensee will not to use any Pictometry trademark, trade name,
logo, or designation in connection with any product or service other than the Licensed
Images and the other Licensed Products.
Electronic and Other Publishing. Except as provided in Schedule B, Licensee is
specifically prohibited from publishing in any way (including by making available on
the Internet or World Wide Web or any other general access electronic or other
network) any Licensed Product or any Image, or any portion of any such Product or
Image, whether separately or as part of any other electronic publication without prior
authorization from Pictometry.
Confidentiality of Licensed Software. The Licensed Products are commercially
valuable, proprietary products of Pictometry, the design and development of which
reflect the effort of skilled development technicians and the investment of
considerable time and money. The Licensed Products are treated by Pictometry as
confidential and contain substantial trade secrets of Pictometry. Pictometry is
entrusting these trade secrets to Licensee in confidence for Licensee's use so that
Licensee may exercise its rights under the License and for no other purpose. Licensee
agrees that it will not at any time disclose, provide a copy of, or disseminate the
Licensed Products or any part thereof to any person who does not need to obtain
access thereto consistent with Licensee's rights and obligations under this Agreement.
Licensee agrees to use its best efforts to assure (a) that all its personnel and any others
afforded access to the Licensed Products will protect them against unauthorized use,
disclosure, copying, and dissemination, and (b) that access to the Licensed Products
and each part thereof will be strictly limited for this purpose.
Prohibition On "Unlocking." Licensee agrees that it will take all reasonable actions
to assure that persons who might access the Licensed Software will not "unlock" or
"reverse engineer" any part of the Licensed Software so as to find or uncover the
source code or other trade secrets included therein.
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ASSIGNMENT
6.1
General. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties, their successors and permitted assigns, but shall not be
assignable by either party except as provided in Sections 6.2 and 6.3 below.
6.2
Assignment By Licensee. This Agreement will not be assignable by Licensee, and
Licensee may not delegate its duties hereunder without the prior wfittcn consent of
Pictomctry.
6.3
Assignment By Pictometry. Pictometry shall have the fight to assign its rights to
receive License Fees under this Agreement, but no such assignment shall affect
Pictometry's obligations hereunder. In addition, Pictometry shall have the fight to
assign all its rights to any person or entity that has acquired substantially all the
Pictometry assets used in with respect to the Licensed Products, provided the assignee
has assumed all of Pictometry's obligations under this Agreement.
DURATION AND TERMINATION OF LICENSE
7.1
Initial Term. The initial term of the License granted under Section 2.1 of this
Agreement shall commence upon the successful installation of the Client Image
Warehouse and shall expire, unless sooner terminated in accordance with Section 7.3,
upon the second anniversary of the successful installation of the new images thereof.
7.2
Renewal. Effective as of that second anniversary, Pictometry will grant an extension
of the Licensed Products to Licensee, only in accordance with the following:
(1) If no later than the 120th day before that second anniversary the Licensee
enters into a renewal License Agreement with Pictometry for an additional two
years for new Images with a value equal to or greater than that of the existing
Images, then Pictometry will grant a perpetual License to Licensee for the
existing Licensed Products.
(2)
o~r
If no later than the 120th day before that second anniversary the Licensee
enters into a renewal License Agreement with Pictometry for an additional two
years for new Images with a value of at lease 50% of that of the existing
Images, then Pictometry will grant a perpetual License to Licensee for the
existing Licensed Products upon the payment of an amount equal to 20% of the
difference between the new annual fee and previous annual fee due under this
Agreement.
(3)
or
If no later than the 10th day after that expiration date the Licensee pays
Pictometry an additional payment equal to 20% of the previous armual fee due
under this Agreement, the License will be extended for a period of one (1)
year. Thereafter the Licensee may extend the License annually, upon the
anniversary of the expiration date, by paying Pictometry an additional
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maintenance and support fee equal to 5% of the previous annual fee due under
this Agreement.
Any extensions will be subject to the same terms and conditions as are provided in this
Agreement except that the annual fee under Section 3.1 and Schedule A will be
eliminated and the Licensee will no longer be able to add images to the existing Image
Library. Nevertheless, Licensee's obligations to charge a sales price for Digital and
Hard Copies and to pay a portion of it to Pictometry, as provided in Section 2.1(c)(3)
above, shall continue during any such extension under this Section 7.2.
ge
7.3
Termination For Cause. The License and all other rights in the Licensed Products
granted hereunder may be terminated by either party in the event that the other party
has failed to perform a material obligation or has otherwise breached a material term
of this Agreement if that other party has failed to cure that failure or breach within
thirty days after receipt of written notice thereof from the other party.
7.4
Effect of Termination or Expiration. Upon termination or expiration of the License,
Licensee immediately shall cease any and all further use of the Licensed Products and
shall promptly purge all copies of Images and all Licensed Software (including but not
limited to EFS and ClW) from all computers and workstations on which any of them
may be stored or available at the time. In addition, the Licensee shall destroy all
remaining inventory of Hard Copies of Images in its possession or under its control
(excluding those images produced in the activities described in Section 2.1 (c)(2)
above).
7.5
Access to Records. During the term of this Agreement and for a period of three (3)
years after the date of its termination or expiration, Licensee shall make available to
Pictometry for inspection and copying on reasonable notice and at reasonable hours all
books and records, including electronically retained information, pertaining to
Licensee's compliance with the provisions of this Agreement.
7.6
Survival of Rights and Obligations After Termination of License. Upon any
termination of the License, all other rights and obligations of the respective parties
shall continue as contemplated by this Agreement, including the Licensee's obligations
to pay Pictometry all amounts due hereunder and to purge the Licensed Software and
the inventory of Images as provided above.
LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; LIMITED REMEDIES
8.1
Limited Warranties. Pictometry warrants:
(a) that the Licensed Images and the Licensed Software installed by Pictometry on
any Authorized Workstation supplied by Licensee pursuant to this Agreement
will be true and usable copies as of the date of capture and as represented to
Licensee by Pictometry; and
(b) that the information concerning the accuracy of the Licensed Products set forth
on the attached Schedule C is a substantially true and accurate reflection of actual
products.
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(c) Upon notice to Pictometry of any breach of the warranty in clause (a) above,
Pictometry will promptly reinstall a copy of the Licensed Images and/or Licensed
Software involved.
(d) Upon notice to Pictometry of any breach of the warranty in clause (b) above,
Pictometry will correct the problem so as to allow the Licensed Products to produce
Images and related data that are usable for the general purposes intended. The
foregoing warranties are the sole and exclusive warranties that Pictometry makes with
respect to the Licensed Products, and the remedies set forth above are the sole and
exclusive remedies for breach of those warranties.
(e) In the event Pictometry is unwilling or unable to either promptly reinstall a
copy of the Licensed Images and/or Licensed Software or if the information
concerning the accuracy of the Licensed Products set forth on the attached Schedule C
is not a substantially tree and accurate reflection of actual products, Pictometry will be
considered in material breach of this agreement and this contract may be terminated by
Licensee. Upon termination for material breach as described directly above,
Pictometry will refund Licensee any money for unused services under this agreement.
8.2
Disclaimer of Other Warranties. Except as provided in Section 8.1 above, EACH
OF THE LICENSED PRODUCTS IS PROVIDED TO LICENSEE "AS IS" AND
PICTOMETRY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY
KIND. ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY, AND NON1NFRINGEMENT, ARE
HEREBY DISCLAIMED AND EXCLUDED BY PICTOMETRY.
8.3
Limitations and Exclusions of Remedies. The respective remedies set forth in
Section 8.1 are the sole and exclusive remedies provided for breach of the warranties
given. With respect to any other claims that Licensee may have at any time against
Pictometry on any matter relating to this Agreement, or the installation, operation,
design, distribution, or use of the Licensed Products, the total liability of Pictometry
shall in the aggregate be limited to the aggregate amounts of money that Licensee has
paid to Pictometry under this Agreement. In addition, because of scheduling and other
considerations in preparing current Images, Pictometry cannot assure delivery of the
Licensed Products on a specified delivery date, and Pictometry shall not be liable for
any such late delivery except in a case of its negligence or willful misconduct. IN NO
EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CAUSE OF
ACTION OF ANY KIND ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE LICENSED PRODUCTS, OR 1MAGES (INCLUDING
UNDER THEORIES INVOLVING TORT, CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OR BREACH OF WARRANTY), FOR ANY LOST PROFITS OR FOR
ANY iNDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER
SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY OR BY ITS
CUSTOMERS OR OTHERS, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
PATENT AND COPYRIGHT INDEMNIFICATION
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PICTOMETRY at its own expense shall defend any action brought against Licensee to the extent that
it is based on a claim that any Software Product used within the scope of the license hereunder
infringes a patent or copyright, provided Licensee notifies PICTOMETRY promptly in writing of the
action (and all prior claims relating to such action) after Licensee becomes aware of same, and
PICTOMETRY has sole control of the defense and all negotiations for its settlement or compromise.
In the event any Software Products become, or in the opinion of PICTOMETRY are likely to
become, the subject of a claim of infringement of a patent or copyright, PICTOMETRY may at its
option either secure the Licensee's right to continue using the Software Products, replace or modify
them to make them non-infringing, or if neither of the foregoing alternatives is reasonably available
to PICTOMETRY, discontinue the Software Product upon three month's written notice. Should
PICTOMETRY discontinue use as described herein, Licensee shall be entitled to receive any and all
software license fees paid to PICTOMETRY up to such time.
10. INSURANCE
As long as this Agreement is in effect, Pictometry will carry a minimum of $1,000,000 of liability
insurance including auto liability, insurance and workers' compensation insurance. The Licensee,
their officers, agents, employees and volunteers are to be added as Additional Insured(s) on the
liability insurance and Licensee is to receive a copy of insurance company endorsement(s) proving
that has occurred. All insurance policies will provide Licensee with thirty-days (30) advance notice
of cancellation or material reduction in coverage via certificate(s) of insurance.
11. GENERAL
11.1
Entire Agreement. This Agreement, which includes the attached Schedules, contains
the entire agreement between the parties and supersedes all written or oral agreements,
descriptions, representations, and understandings with respect to the subject matter
hereof. Where differences occur between the main body of the Agreement and the
attached Schedules, the Schedules shall supersede the Agreement. Licensee
acknowledges that it is not entering into this Agreement on the basis of any
representations not expressly contained herein. Any modifications of this Agreement
must be in writing and signed by a duly authorized officer of each party.
11.2
Rights of Others. This Agreement is solely intended to provide rights to and be
enforceable by Pictometry and Licensee (including its Authorized Subdivisions). No
other person, shall acquire or enforce any rights or any representations or warranties
given under this Agreement.
11.3 Waiver. The waiver by either party of any default by the other shall not waive
subsequent defaults of the same or different kind.
11.4
Notices. All notices and demands hereunder shall be in writing and shall be delivered
by personal service, mail, or confirmed facsimile transmission at the address of the
receiving party set forth below (or at such different address as may be designated by
one party by written notice to the other). All notices or demands by mail shall be sent
by certified or registered United States mail, return receipt requested, and shall be
deemed complete upon receipt.
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If to Pictometry: I f to Licensee:
Pictometry International, Corp.
100 Town Centre Drive,
Suite A Rochester, NY 14623
Attn: Michael J. Neary
Executive Director of Public Works
City of Santa Ana
20 Civic Center Plaza (M 21)
P.O. Box 1988
Santa Ana, California 92702
Telefacsimile (714) 647-5622
11.5
Execution of Agreement, Controlling Law, and Jurisdiction. This Agreement will
become effective only after it has been signed by Licensee and has been accepted by
Pictometry at its principal place of business.
11.6
Severability. In the event that any of the provisions of this Agreement shall be held
by a court or other tribunal of competent jurisdiction to be unenforceable, such
provision will be enfomed to the maximum extent permissible and the remaining
portions of this Agreement shall remain in full force and effect.
11.7
Force Majeure. Pictometry shall not be responsible for any failure to perform due to
unforeseen circumstances or to causes beyond Pictometry's reasonable control,
including but not limited to acts of God, war, riot, embargoes, acts of civil or military
authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages
or delays of transportation, facilities, fuel, energy, supplies, labor, or materials. In the
event of any such delay, Pictometry may defer the delivery of Licensed Products for a
period equal to the time of the delay.
1N WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date
specified below.
Attachments:
Schedule A: Description of Licensed Products, License Fees
Schedule B: Licensee Image Sales Pricing
Schedule C: Digital Imagery Specifications
Schedule D: Sector Map
Schedule E: Definitions
ATTEST: , /
Clerk of the Council
CITY//O~/SAN/~
DAViD N. REAM
City Manager
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APPROVED AS TO FORM:
JOSEPH W. FLETCHER
By:City Attorney
Michael Vigliotta
Deputy City Attorney
RECOM ENDED F R VAL:
Jame~G.~Ross
ExeCutive Director of the
~.~ablic Works Agency
Employer ID # or Individual SS #
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SCHEDULE "A"
1. The following Licensed Images shall be delivered to Licensee by Pictometry International Corp.:
A. US Census Bureau TIGER line files of County (or a base map supplied by City/Special District)
B. New Images, procured with a 6 megapixel camera, covering Licensee's geographic area, under
a renewal license agreement with Orange County Califomia.
C. Images
38 Sectors (Approx. 1 square mile each sector)
Conununity Images (2 Foot Resolution)
228 Oblique - Approximately 6 images for each sector. 3 each from perpendicular directions
152 Ortho-rectified - Approximately 4 for each sector with 2 foot pixel resolution (stereo pairs
with overlap)
Neighborhood Images (6 Inch Resolution):
2,052 Oblique - Approximately 54 images for each sector. These will provide views from two
opposing directions because of approximately 100% overlap, back to front.
· Estimated total number of images to be delivered = 2,432 Images
2. Documentation: Pictometry International Corp. shall furnish 5 originals of the Documentation for
the Licensed Software along with a copy in an electronic (PDF) format.
3. Training: Pictometry Intemational Corp. shall conduct one End User orientation sessions of up to
25 people for employees of the Licensee or Authorized Subdivisions thereofi In addition there will
be Advanced User technical training for one group of up to 10 people using Licensee computers.
4. Telephone Support: Pictometry shall provide 5 hours of telephone support to the people who have
completed the Advanced User technical training.
5. Licensed Software: Pictometry International Corp. shall supply one copy of the Pictometry End
User Software (EFS), latest version, on the Storage Media supplied as specified herein. Pictometry
International Corp. shall furnish to the Licensee on CD media updated versions of the Licensed
Software free of charge for a period of two years from the date of installation, along with a copy of
the updated documentation in an electronic and hardcopy format.
6. Cost: Annual License Fee ofTen Thousand Two Hundred & Seventy Dollars ($10,270)
· The initial duration of the contract is two (2) years at the above Annual Fee. The two-
year term will begin when the "new image" library is delivered.
· This License Agreement is contingent upon the renewal of a license agreement with
Orange County California and will terminate upon the termination of that license
agreement (scheduled for Oct/Nov 2005).
· The annual price will not increase by more than 10% in any one subsequent year.
Page I of 3 021110
· Fee Explanation:
$10,000 per year up to 37 sectors (mile square) as viewed in our sector map
$270 per sector per year additional for 38 sectors or more
$20,000 per year maximum for 75 sectors or more (including the whole Orange County data set)
7. Existing Images. Images captured under the existing License Agreement with Orange County
California can be installed at Licensee's site, under the terms and conditions of that License
Agreement, prior to the delivery of the new Images. The installation will be an additional one time
discounted fee of Three Thousand Dollars ($3000.00)
8. Taxes: All License Fees or other prices listed in this Agreement are exclusive of Federal, State and
Local taxes. Licensee will be responsible for any taxes due under this License Agreement.
9. Payment: The Licensee shall remit to Pictometry International, Corp.
A. $8000.00 ($3,000 for current image set installation fee plus $5,000 of year 1 annual license fee)
upon signing this Agreement. the balance of the first year fees
B. $8,000.00 ($5,270 balance of year 1 annual license fee and $2,730 of year 2 annual license fee)
specified in this Schedule A within 30 days of the delivery and successful installation of the
First Set of New Licensed Software and Images, as specified in this Schedule A.
C. Payment of the second annual fee $7,540.00 (balance of year 2 annual license fee) shall be due
within 30 days of the delivery and successful installation of the Second Set of New Licensed
Software and Images, as specified in this Schedule A.
10. Authorized Users: Pictometry will issue a site license for The City of Santa Ana and our software
can be loaded on as many workstations as the City desires at no additional cost. The City may also
duplicate as many libraries of the images as it desires at no additional cost. Any city employee or
department is authorized to use the Licensed Products for City business only!
11. Delivery Schedule: The image capture process and the delivery date may be affected by weather
conditions or aircraft availability. Delivery of existing images shall be within ten (I0) working
days of the effective date of this Agreement. Delivery of the first set of new images shall be no
more than 30 days after Orange County is delivered which is projected to be October 30, 2003.
Delivery of the second set of images shall be no more than 30 days after Orange County is
delivered which is projected to be October 30, 2004.
12. Storage Media. Licensee will make available on Licensee Server enough disk storage space to
accommodate the Licensed Images and Licensed Software. This is estimated to be 7.3 GB in a
NTFS file system, in other file systems the size may vary. Licensee will also provide a 100 Mb/s
network link to the server. On delivery Pictometry shall copy the Licensed Images and Licensed
Software from Pictometry's computer to the Licensee server via the network connection.
13. Recommended Minimum System Requirements for Electronic Field Study. A Pentium II with a
350 MHz processor, 96MB memory, Windows 95, a video card with 4 MB memory and capable of
1024 x 768 resolution.
14. Support Services: Additional training and support services are available at the additional costs
listed:
Products & Services
Price
Page 2 of 3 021110
At Implementation
-Additional user training sessions - End User or Advanced User.
Post Implementation Training
-At Licensee Location
-End User or Advanced User.
-At Pictometry
-Advanced User
Post Implementation Technical Support
-Telephone Support for Licensee Support Contacts - 5 Hour Blocks
-On Customer Site
-Senior Engineer - Per Hour, Min 8 Hr.
-Customer Support Engineer - Per Hour, Min 8 Hr.
Electronic Field Study Operations Manuals
-Extra Printed Manuals
-Electronic Copy
* Plus meal, lodging and travel expenses
$500/session
$500/session*
$500/Person
/Day
$5OO
$200 *
$125 *
$5O
$150
Page 3 of 3 021110
SCHEDULE "B"
Pricing of Images for Sale
1. All Licensed images provided pursuant to this License Agreement are and shall remain the
property of Pictometry International Corp.
Any reproductions of the Licensed Images using the Licensed Software, or reproduction of
the Licensed Images in any form by any other means by County or an Authorized
Subdivision thereof, shall be for internal use or use by a consultant to the County or an
Authorized Subdivision thereof, unless a fee is collected as follows:
A. All hardcopy (printed) copies of images shall be sold for a minimum fee of $40, 30% of
which shall be remitted by the County or the Authorized Subdivision thereof to
Pictometry International Corp. in accordance with the license agreement. However any
fees for additional County work on the images, e.g. annotations, measurements, etc., shall
be retained in full by County.
B. All digital or electronic copies of the images shall be sold for a minimum fee of $50 for
professional or commercial uses and for a minimum fee of $20 for private or personal
uses, 50% of which shall be remitted by the County or the Authorized Subdivision
thereof to Pictometry International Corp. in accordance with the license agreement.
However any fees for additional County work on the images shall be retained in full by
County. The digital or electronic images sold by County under this License shall be
Electronic Photo Images without Pictometric data.
Page lofl 0201
SCHEDULE "C"
Digital Imagery Specifications (Approximate)
Community Oblique
Image sensor:
Footprint:
Front Line:
Back Line:
Front to Back:
Resolution:
Front Line:
Back Line:
Frontto Back:
3000 x 2000 pixels
2,139 feet
7,086 feet
10,763 feet
1.05 feet/pixel
0.32 meters/pixel
3.49 feetJpixel
1.06 meters/pixel
3.52 feet/pixel
1.07 meters/pixel
Community Orthogonal
Image sensor:
Footprint:
Resolution:
2000 x 3000 pixels
4000 ft x 6000 ft
1.97 feet/pixel
0.60 meters/pixel
Neighborhood Oblique (100 mm)
Image sensor: 2000 x 3000 pixels
Footprint:
Front Line: 769 feet
Back Line: 1,188 feet
Front to Back: 2,283 feet
Resolution:
Front Line: 4.5 inches/pixel
11.5 centimeters/pixel
7.0 inches/pixel
17.8 centimeters/pixel
9.0 inches/pixel
22.8 centimeters/pixel
Back Line:
Front to Back:
Image format:
Proprietary image trailer tacked onto industry standard image format. May be
exported to a number of formats.
Image Quality
Images will have clear views of the ground and will be fi'ee from obstruction by
clouds, however there may be occasional cloud and other shadows. In
controlled airspace, around airports, etc., the image resolutions may vary.
Relativelmage Accuracy:
Expected to be within 5 meters over 1000 meters
Absolute Image Accuracy: Expected to be within 2-5 meters (Coordinate location accuracies subject to the
accuracy and posting interval of the County Digital Elevation Models and the
maps used to plan the flight lines.)
Final accuracy numbers are still being computed based on a large number of image samples. Accuracy
values will be calculated according to NIMA's MIL-600001 accuracy specifications. Results from the
testing and calibration will be made available as soon as they are completed.
Page I of 2
0201
Sensor Positional Accuracy: 15 cm absolute
Sensor Directional Accuracy: 0.01 degrees absolute
We utilize a Litton IMU (Inertial Measurement Unit - utilized in cruise missiles), a ground station
post-corrected GPS, and Kalman filtering to achieve the high degree of positional and directional
accuracy.
Ortho-rectification: Geo-referenced square pixels
The images will be ortho-rectified to back out the optical deviations of the capture system and then
resampled, utilizing USGS DEM data (30-meter postings or better if available from county), to
produce square pixels on the ground. Raw digital images will be available for customers who wish to
resample with higher resolution elevation data.
Orthogonal Stereo Pairs: 67% overlap along flight line (2680 feet)
22% overlap between flight lines (1320 feet)
Each sector will contain a stereo pair that fills the sector, plus the overlap from the adjacent sectors.
Image Export: JFIF (JPEG), TIFF, MrS1D, GIF
With associated geography file for import into GIS
The proprietary image format can be directly read into GIS packages that can import JFIF files or the
file can be converted to any of the above image formats. An associated geography mapping file will
be delivered with each orthogonal image for direct import into GIS.
Geo-data Export: delineated text files
Currently, geo-data may be exported as points or lines to a delineated text file for import into G1S.
The data may be pulled into GIS packages through a relatively simple process. Future releases will
include a means to export directly to a GIS recognized geography file format.
Image Tiling and Terrain Profiles:
We do not tile the orthogonal images, nor pull terrain profiles out of the stereo pairs. However, our
orthogonal images are in a form that can be pulled into existing applications that can perform both
these functions.
Notes:
As of this date, the existing National Map Accuracy Standards apply primarily to conventional analog aerial
photography products in hard copy form. Research is currently underway by the major manufacturers of precision
digital aerial mapping can~eras to achieve the existing specifications and to be able to produce mapping to National
Map Accuracy Standards. It should be noted that many of the applications identified by county agencies do not
require high levels of accuracy and those that do require it can be achieved through the use of third party software
packages such as the ERDAS Imagine Orthobase product which allows orthophoto images to be rectified to existing
monumentation and ground control data. We recommend that these improvements be undertaken on a project-
specific basis rather than on a countywide level, given the expense involved.
Page 2 of 2
0201
SCHEDULE "D"
1614 1615 1618 1617 1618 1619 1620 1621
1714 1715 1716 17'~7 1718 1719 1720 172
1814 1815 1816 , 1817 1818 1819 1820 182~1
1914 1915 1916 1917 1918 1919 1920 ~ ~-~ 1921
~ ,~;ANTA A NA
2014 2015 2016 2017 2018 2019 2020 2021
2114 2115 ~116 2117 2118 2119 2120 · · 2t21
INTAIN Vq aLLEY
2214 2215;:/ 2216 2217 2218 2219 / ~ 2220 '2221
SCHEDULE "E"
Definitions
EFS, Electronic Field Study: A proprietary software package that allows for the display
and analysis of Pictometric Images.
EFS Professional: A set of imaging tools, including measuring, annotation, reconciling,
and data analysis tools bundled with the base EFS software package.
Client Image Warehouse: A hierarchical storage system of Pictometric images that
allows fast, random access by geo-location.
Pictometric Image: Orthogonal and oblique digital images, automatically captured and
geo-referenced from airborne platforms using Pictometry's patented and proprietary
hardware and software capture system.
Electronic Photo Image. Orthogonal and oblique digital images, automatically captured
from airborne platforms using Pictometry's patented and proprietary hardware and
software capture system but without geo-referencing.
Image Sector: A portion of an image collection project defined as approximately one
square mile in area.
Community Images: (CI) A set of three images, each covering the entire sector; one
from directly overhead, and two from different oblique angles.
Neighborhood Images: (NI) A set of fifty overlapping, oblique images blanketing the
entire sector, providing for a higher degree of detail.
USGS DOQ Imagery, Digital Ortho-Quad: Low resolution, ortho-rectified imagery as
provided by USGS-Pictometry CRADA (Cooperative Research and Development
Agreement) each covering approximately 49 square miles.
Page 1 of 1
0201
PICTINT-01 KEPA
' ACORD_,._ CERTIFICATE OF LIABILITY INSURANCE I """'~r~0o3
~'~Couc~ (~) 4T3-~000 THIS CERTIFICATE iS ISSUED AS A MAn'ER OF INFORMATION
Parls-Kl~¥an Associates, lng. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
COVERAGES
CERTIFICATE HOLDER
Executive Director of Public Works
City of Santa A~a
20 Civic center Plaza (M 21) PO BOX 1988
Santa Aha, CA 92702-
CANCELLATION
ACORD 25 (2~01/08)
~ACORD CORPORATION 1988
APP.ROVED 3~S .TO FORM
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DeputY City Attorney
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NamMJ Insured:
Policy Number:
Policy Effe=flve DaM:
Policy Expiration Data:
Issue Date:
Premium $
CHANGE. ENDORSEMENT
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Z-680*938H~lIA-COF-02
10-03-02
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THIS INSURANCE IS AMENDED AS FOLLOWS:
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APPg0VED. AIS TO FORM
Mic[~a"el Vigliotta (J
Deputy City Attorney
NAME AND ADDRESS OF AGENT OR BROKER
~O ]aOX 40,~20
Itocn 9'1'?,R t~'
14604
Countemign~
Authoriz~l Representative
DATE
ILT0070987 (Page01 of 01) Office* ROCHESTER