HomeMy WebLinkAboutCOD-049-08
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REPORT
CORPORATE SERVICES DEPARTMENT
Meeting: General Purpose and Administration Committee
Date: July 7, 2008 Resolution #: {] f/}-'-I53-olf
Report#: COD-49-08 File#: By-Iaw#::!odt-/'J{p
Subject: Joint Agreement Purchase - Orthophotography
Recommendations:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report COD-49-08 be received;
2. THAT Council approves the purchase of Orthophotography for 2008 and
2010 from the Region of Durham for an approximate cost for 2008 and 2010
are $15,300 and $9,300 respectively plus taxes in a joint agreement with the
lake front Municipalities and First Base Solutions Inc;
3. THAT the requirements of Purchasing By-law 2006-127 be waived in this
instance; and
4. THAT the attached By-law marked Schedule "A" authorizing the Mayor and
the Clerk to execute the necessary agreement be approved.
Attachments: Attachment #1 - Table #1 and Table #2
Attachment #2 - Sub-licence Agreement
Attachment #3 - By-law
S"bm"'" bY~ -
arie Marano, H.B.Sc., C.M.O.
Director of Corporate Services
Reviewed bY:()~~
Franklin Wu
Chief Administrative Officer
MM/RVD/gj
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-5506
REPORT NO.: COD-48-09
PAGE 2
1.0 BACKGROUND
1.1 In 2005, the Municipality of Clarington participated with the Region of
Durham to acquire the 2005 colour Orthophotography product from J.D.
Barnes Limited/First Base Solutions Inc.
1.2 Orthophotography, a photo quality digital image of surface features in their
geometrically corrected, true map position, has become an essential
Geographic Information Systems (GIS) foundation dataset for the
Municipality and its stakeholders. In combination with other Municipal data,
Orthophotography serves as a visual depiction of a tract of land while
simultaneously providing the viewer with details about the land - zoning,
property assessment, asset management and many more. The magnitude
and pace of growth in the Municipality of Clarington requires this data to be
as current as possible to support community and environmental planning
strategies, infrastructure management, emergency response and public
consultation.
1.3 Current technology now allows the vendor to provide Orthophotography,
which has been processed using a digital camera. This new process
provides greater picture resolution while flying at the same altitude.
1.4 Once again the Region of Durham is acting as the lead agency to acquire
Orthophotography; this year Veridian Connections requested to participate
in this year's project, and previously participated in 2003.
1.5 Partnering on the acquisition of Orthophotography provides both financial
and operational benefits as each of the partners have similar data
requirements. As there is considerable upfront flying costs associated with
creating Orthophotography, vendors do not fly areas unless they have a
commitment from a client for the total cost. Orthophotography costs are not
dependant upon the number of users but on the area of coverage and
specification of the product which the partners share. Additionally, the
Municipality and the other partners require the Orthophotography to be of
the same age and specification as it eases integration and development of
other datasets and provides a foundation for common decision-making. As
Durham Region requires the Orthophotography for the entire Region and is
the largest stakeholder, it has assumed the role as Prime.
1.6 The 2008 and 2010 Orthophotography stakeholders and associated costs
are identified in Table 1 and Table 2 (attachment #1) respectively of this
report.
REPORT NO.: COD-48-09
PAGE 3
2.0 Recommendation
2.1 First Base Solutions is being recommended to undertake this project as the
selected vendor. They have a proven track record as well as being the only
vendor offering a license agreement, which reduces the cost of acquiring
Orthophotography versus purchasing the data outright. First Base
Solutions' licensing model is unique in the industry as they retain the
ownership of the data in order that they can sell to other prospective clients
and therefore the Region and partners do not have to subsidize the full cost
of the data.
2.2 In addition, the Cities of Mississauga, Brampton and Caledon, York Region
and Peel Region, have initiated multi-year contracts with First Base
Solutions because of low cost and high quality of the product provided.
2.3 First Base Solutions will be flying across Durham Region this spring in order
to keep their map warehouse website current, so there will no delay in the
Municipality receiving the data as the ideal flying time for Orthophotography
is in the spring due to lack of leaf coverage. In addition, it is proposed that
First Base Solutions do a fly-over of the Southern Municipalities in 2010.
3.0 Cost
3.1 The listing of 2008 Durham partners and their cost contributions to the
project are depicted in Table 1. The payment plan was developed as the
result of each stakeholder's budgets, their cost to participate and the
deliverables required for each stakeholder. All costs are subject to
applicable Provincial and Federal taxes. Costs per year have been rounded
up to the nearest dollar.
3.2 In 2010, Orthophotography updates will only be based on areas that receive
considerable growth therefore the cost of the Orthophotography and the
number of participants has been reduced. Table 2 depicts the final listing of
Durham partners and their cost contribution to the project in 2010. All costs
are subject to applicable Provincial and Federal taxes. Costs per year have
been rounded up to the nearest dollar.
4.0 Financina
It is recommended that financing for the year 2008 of the agreement for the
Municipality's share in the amount of $15,300 plus taxes be provided from
the 2008 IT Budget. In addition, it is recommended the financing for the
year 2010 of the agreement for the Municipality's share in the amount of
$9,300 plus taxes be included in the 2010 IT Budget.
REPORT NO.: COD-48-09
PAGE 4
5.0 Conclusion
It is respectfully recommended that the IT Division of the Corporate Services
Department be authorized to join the Region of Durham to have First Base
Solutions inc. provide updated Orthophotography through a multi-year license
agreement and that the Mayor and Municipal Clerk be authorized to sign the
sub-license agreement between the Region of Durham and the Municipality of
Clarington.
ATTACHMENT #1
Table 1
Entire Region Flown in 2008 - 20cm
Stakeholders Coveral!e Pro Dosed 2008 20cm
Durham Region 2,525 $82,450
Pickering 232 13,500
Ajax 67 9,500
Whitby 147 12,500
Oshawa 146 15,300
Clarimrton 611 15,300
Brock 423 4150
Scugog 476 4150
Uxbridge 423 4150
Durham Reg:ion Police Services 4,000
Durham District School Board 5,000
Toronto Regional Conservation Authority 5,000
Veridian 20,000
Additional Deliverables
Durham Reg:ion Police Services 650
- reduced resolution region-wide
40cm B/W MrSID mosaic
TOTAL COST 2525 $195,650
Table 2
Urban Areas in 2010 - 20cm
Stakeholders Coveral!e ProDosed 2010 20cm
Durham Reg:ion $40,200
Pickering: 232 8,200
Ajax 67 5,800
Whitby 147 7,600
Oshawa 146 9,300
Clarinl!ton 295 9,300
Durham Region Police Services 1,000
Durham District School Board 1,500
Veridian 9,000
Additional Deliverables
Durham Reg:ional Police Services 650
- reduced resolution region-wide
40cm B/W MrSID mosaic
TOTAL COST 887 $92,550
.,
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ATTACHMENT #2
SUB-LICENCE AGREEMENT
THIS AGREEMENT is made this day of
,2008
BET WEE N:
THE REGIONAL MUNICIPALITY OF DURHAM
(the "Region")
- and -
THE MUNICIPALITY OF CLARINGTON
(the "Municipality")
WHEREAS the Region pursuant to a Primary Subscriber License Agreement with First
Base Solutions Inc. (the "Primary Subscriber License") has been granted a non-exclusive and
non-transferable licence to use certain Information as the terms are used in that Primary
Subscriber License;
AND WHEREAS the Region has requested the Municipality to participate in sharing the
costs of acquiring the Information (the "Information");
AND WHEREAS the Primary Subscriber License Agreement with First Base Solutions
Inc. (First Base Solutions) allows the Region to grant to the Municipality a non-exclusive, non-
transferable licence to the Information;
NOW THEREFORE the Municipality and the Region for good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), hereinafter agree as follows:
1. Subject to the terms and conditions of the Primary Subscriber License with First Base
Solutions, the Region grants to the Municipality a non-exclusive, non-transferable
licence to use the Information as specified and upon the terms and conditions as set out
in the Primary Subscriber License Agreement.
2. Except as expressly permitted under the Primary Subscriber License, the Municipality
shall not sell, assign, transfer, sublicense or distribute the Information to any other
person.
3. This Agreement shall commence on and continue until terminated in
accordance with the provisions of the Primary Subscriber License Agreement.
4. The Municipality shall enter into an Assumption Agreement with First Base Solutions Inc.
substantially in the form of Appendix "A" hereto prior to obtaining access to the
Information.
5. The Municipality acknowledges that it has read the Primary Subscriber License
Agreement, which is attached as Appendix "B" to this Agreement and agrees to be
bound by, and to comply with, the terms and conditions of the Primary Subscriber
License Agreement including all restrictions as if it was an original signatory thereto.
~ - 2 -
6. The Municipality hereby acknowledges that the Information was not created by or for the
Municipality and the Municipality does not have the authority to regulate the use of the
Information and does not have the statutory obligation to collect or maintain the
Information.
7. The Municipality shall notify the Region in writing with respect to any issues or disputes
arising from or related to the Information, including notification of any default under this
Agreement.
8. The fees payable by the Municipality for the Information and services provided
hereunder are set out in Appendix "C" to this Agreement.
9. The Region shall invoice the Municipality for their share of the Information licence fees
and deliverables, all fees payable under this Agreement are due and payable within
thirty (30) calendar days from the invoice date.
10. If the Municipality fails to make any payment when due, in addition to all other rights and
remedies available to the Region, the Region has the right to charge interest on all
outstanding amounts and the rate of interest shall be that in effect by the Region at the
time in respect of overdue general receivable accounts.
11. First Base Solutions will deliver the Information to the Region in accordance with the
delivery schedule as contained in the Primary Subscriber License Agreement attached
hereto as Appendix "C". The Region will provide the Information to the Municipality as
soon as is reasonably practicable.
12. The Region makes no warranties with respect to the Information provided by the Region
or First Base Solutions under this Agreement and the Information are provided on an "as
is" basis and "as available", without any other warranties, representations or conditions,
express or implied, including, without limitation, warranties or conditions or merchantable
quality, fitness for a particular purpose, or non-infringement of third party rights, or those
arising by law or by statutes, or by usage of trade or course of dealing. The entire risk
as to the result and performance of the Information is assumed by the Municipality.
Provided that the Region meets its obligations under this Agreement, the Region shall
have no liability to the Municipality or any other person or entity for any claims, actions,
loss, damage including without limitation, loss of revenue or profit or savings, lost or
damaged data, or other commercial or economic loss or any indirect or incidental,
special or consequential damages whatsoever even if the Region has been advised of
the possibility of such damages; or for claims of any nature by a third party, nor shall the
Region's suppliers, agents, employees or representatives have such liability.
Notwithstanding anything else in this Agreement the Region's maximum aggregate
liability to the Municipality for any cause whatsoever related to the Information shall not
exceed the fees actually paid by the Region in the last 12 months under this Agreement,
if any; or, if no licence fees have been paid, one dollar. This section shall apply whether
or not the liability results from a breach of a fundamental term or condition, or a
fundamental breach.
13. Notwithstanding anything in this agreement, neither party shall be liable for any failure or
delay in performing its obligations under this Agreement, due to causes outside its
- 3 -
reasonable control, provided that a party claiming the benefit of this section shall use its
best efforts to eliminate the cause or causes beyond its control.
14. Except as expressly provided in this Agreement, dates and times by which a party is
required to render performance (not payment) under this Agreement or any schedule
hereto shall be postponed automatically to the extent and for the period of time that such
party is prevented from meeting them by reason of any cause beyond its reasonable
control, provided the party prevented from rendering performance notifies the other party
immediately and in detail of the commencement and nature of such cause and the
probable consequences thereof, and provided further that such party uses reasonable
commercial efforts to render performance in a timely manner utilizing to such end all
resources reasonably required in the circumstances.
15. This Agreement, including any amendments and supplements hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof. This
Agreement supersedes all prior or contemporaneous agreements, negotiations,
representations, proposals, discussions and understandings, oral or written, relating to
the subject matter hereof. This agreement may be amended, supplemented or modified
only by written instrument, signed by each of the parties hereto.
16. This Agreement shall be governed by and interpreted in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
17. All notices required or permitted to be given under this Agreement shall be in writing and
either delivered personally or by pre-paid courier or transmitted by facsimile or other
similar means of confirmed electronic communication, to the Region at:
.
Attention: Jim Silburn
Fax: (905) 666-6205
e-mail: James.Silburn@region.durham.on.ca
and to the Municipality at:
.
Attention: Rob Van Dyk
Fax: (905) 623-6020
e-mail: rvandvk@clarinaton.net
or to such other address and facsimile number as either party may notify to the other
from time to time. All notices shall be effective when actually received.
18. The relationship of the parties shall be that of independent contractors. Nothing in this
Agreement shall be interpreted to create any partnership, joint venture, or similar
relationship, or subject the parties to any implied duties or obligations respecting the
conduct of their affairs which are not expressly stated herein.
.
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19. This Agreement shall be binding upon and enure to the benefit of each of the parties
hereto and their respective successors and permitted assigns. This Agreement may not
be assigned by the Municipality, except with the prior written consent of the Region.
20. The failure of either party at any time to require performance of any provision shall not
affect the right to require performance at any other time, nor shall the waiver by either
party of a breach of any provision be a waiver of any succeeding breach or a waiver of
the provision itself.
21. If any provision of the Agreement is declared illegal, void or unenforceable for any
reasons, such provision shall be severed from the balance of this agreement and the
remaining provisions hereof shall continue in full force and effect.
IN WITNESS WHEREOF the parties hereto have executed this Ownership Mapping
License by their duly authorized officers in that behalf.
THE REGIONAL MUNICIPALITY OF DURHAM
Per:
Roger Anderson, Regional Chair
Per:
P.M. Madill, Regional Clerk
I/We have authority to bind the Corporation
THE MUNICIPALITY OF CLARINGTON
Per:
Name & Title:
Per:
Name & Title:
I/We have authority to bind the Corporation
G :\GIS\Administration\Ortho\Sublicensee agreement_ Ortho.doc
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APPENDIX "A"
ASSUMPTION AGREEMENT
THIS AGREEMENT is made the
day of
,2008
BETWEEN:
FIRST BASE SOLUTIONS INC.
a corporation existing under the laws of the Province of Ontario
(herein referred to as the "Licensor")
OF THE FIRST PART
- and -
THE MUNICIPALITY OF CLARINGTON
(herein referred to as the "Registered Affiliate")
OF THE SECOND PART
WHEREAS:
A. The Licensor and The Region of Durham (the "Licensee") are parties to a Primary
Subscriber License Agreement made as of , 2008 (herein referred to as the
"Agreement").
B. Pursuant to the Agreement, there can be no use of the Information by the Registered
Affiliate unless the Registered Affiliate first enters into an assumption agreement with
the Licensor and the prior written consent of the Licensor is obtained.
NOW THEREFORE THIS AGREEMENT WITNESSETH that, for good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the parties
hereto covenant and agree each with the other as follows:
1. Covenant to be Bound
The Registered Affiliate covenants and agrees to be bound by all of the terms
of the Agreement in the same manner as if it had been an original signatory
thereto and to the same extent as the Licensee, except that the parties hereto
acknowledge that the Registered Affiliate shall not be responsible for any of
the fees as provided for in Section 4 of the Agreement.
2. Consent of Licensor
The Licensor hereby grants consent for the use of the Information by the
Registered Affiliate pursuant to the terms of the Agreement.
3. Rights of Registered Affiliate
The Registered Affiliate acknowledges and agrees that its rights under the
Agreement are dependent upon the rights of the Licensee under the
Agreement and shall terminate upon termination of the Agreement for any
reason whatsoever.
4. Governing Law
This Assumption Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
5. Meanings
Terms used in the Agreement shall have the same meaning as therein when
used herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assumption Agreement as of the day, month and year first written.
FIRST BASE SOLUTIONS INC.
By:
Name:
Title:
MUNICIPALITY OF CLARINGTON
Bv
Name:
Title:
1
PRIMARY SUBSCRIBER LICENSE AGREEMENT
THIS AGREEMENT is made as of the
day of
,2008
BETWEEN:
FIRST BASE SOLUTIONS INC.,
a corporation existing under the laws of the Province of Ontario
(herein referred to as the "Licensor")
- and -
THE REGIONAL MUNICIPALITY OF DURHAM
a corporation existing under the laws of the Province of Ontario
(herein referred to as the "Licensee")
IN CONSIDERATION of the mutual covenants set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties covenant and agree as follows:
1. LICENSE
1.1 Grant of License. Subject to the terms and conditions of this Agreement,
the Licensor grants to the Licensee a non-exclusive, non-transferable license for the
term of this Agreement to use and authorize use by its internal end users on an
unlimited number of stand-alone or networked computers of the data identified in
Schedule "A" hereto (the "Information"). The rights granted by this Agreement are
limited to:
(a) displaying and distributing machine-readable copies of the Information
by means of computer equipment which allows end users within the
Licensee's organization to display and retrieve portions of the
Information; and
(b) reproducing the Information in visually perceptible or machine-
readable copies in connection with such display and distribution.
Except as expressly permitted by this Agreement, the Licensee shall not resell,
lease, loan, sublicense, distribute or retransmit any Information to any other person,
or use the I nformation to create any derived product for any of these prohibited
purposes, by any means whatsoever without the prior written consent of the
Licensor.
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1.2 Sublicense. The Licensee shall have the right to sublicense the Information
to the affiliated entities listed in Schedule 'B" hereto, provided that each such affiliate
(hereinafter referred to as a "Registered Affiliate") shall have entered into an
Assumption Agreement with the Licensor substantially in the form of Schedule "C"
hereto prior to obtaining access to the Information.
1.3 Use by Third Parties. The Licensor also agrees that the Licensee and its
Registered Affiliates may provide access to the Information to third parties as
follows:
(a) The Licensee and its Registered Affiliates shall have the right to
distribute the Information to their respective contracted service
suppliers, provided that the Licensee or the Registered Affiliate, as the
case may be, takes such steps as are reasonably necessary to ensure
that such contracted service suppliers use the Information only for the
purpose of providing the contracted service and upon completion of
the contracted service dispose of the Information either by destroying
it or returning it to the Licensee or the Registered Affiliate, as the case
may be. The Licensee or the Registered Affiliate, as the case may be,
shall be responsible for ensuring that a contracted service supplier
uses and disposes of the Information in accordance with the terms of
this Agreement;
(b) The Licensee and its Registered Affiliates may display the Information
for public viewing, provided that the Information is displayed for non-
commercial, non-revenue generating purposes related to the business
of the Licensee or its Registered Affiliates and in such a manner that
unlicensed third parties may not copy or otherwise acquire the
Information in a georeferenced electronic format or obtain access to
the vector graphics underlying the Information;
(c) The Licensee and its Registered Affiliates may not:
(i) distribute the Information in any form of service for which end
users are required to pay periodic or usage"based fees for
access to the Information;
1.4 Errors. The Licensee shall promptly advise the Licensor of any errors in the
Information of which it becomes aware.
1.5 Charges to Registered Affiliates. The Licensee shall have the right to
charge its Registered Affiliates for use of the Information, provided that the Licensee
acknowledges and agrees that the Licensee shall have full responsibility for payment
of all fees and charges payable to the Licensor under the terms of this Agreement.
1.6 Disclaimer. Prior to any distribution of the Information to contracted service
suppliers or any display of the Information for public viewing, the Licensee and the
Licensor shall agree upon the language of a suitable disclaimer be presented on the
internet and possibly an abbreviated version on the map images for the protection of
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the Licensee and Licensor. The copyright notice on the map images shall state:
ORTHOPHOTOGRAPHY provided by @ First Base Solutions Inc.,
2. DELIVERY OF INFORMATION AND SERVICES
The Licensor shall deliver the Information and updates to the Licensee in a mutually
agreed upon format as set out in Schedule "A" and in accordance with the
Fees/Delivery Schedule set out in Schedule "D". In any event, if the Information is
not delivered in accordance with the Fees/Delivery Schedule as set out in Schedule
"D", the Licensor shall be allowed an extension of 60 days from the date scheduled
for delivery to provide the Information to the Licensee.
3. LICENSEE OBLIGATIONS
3.1 Receive and Manage Information. The Licensee is responsible for
receiving, storing, managing and distributing the Information. In addition, the
Licensee should be responsible for supplying all computer equipment, software and
communications facilities required to receive the Information in the format described
in Schedule "A'.
3.2 Unauthorized Use. The Licensee shall promptly notify the Licensor if it
becomes aware of any unauthorized use of the Information and shall assist the
Licensor in taking such steps and proceedings as the Licensor considers necessary
or desirable to prevent further unauthorized use.
4. CHARGES
4.1 Fees. The Licensee shall pay the Licensor license fees for the rights granted
under this Agreement as set out in Schedule "D".
4.2 Taxes. Annual license fees and all other charges provided for herein are
exclusive of any federal sales, provincial sales, use or value added taxes or other
governmental fees or levies payable and the Licensee shall be responsible for all
such taxes, fees or levies which are applicable to the license fees or other charges
hereunder.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement with respect to the financial commitments
is for 2008 and 2010 as per Schedule "D". The term of the Agreement with respect
to the use of the Information shall remain OPEN subject to the terms and conditions
of this Agreement.
5.2 Termination for Breach of Agreement. In the event of a breach or violation
by the Licensee of any condition or term of this Agreement, the Licensor shall,
subject to the terms of this Section 5, have the right to invoke all or any of the
following remedies (the "Remedies"):
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(a) cancel and revoke the license granted to the Licensee hereunder and
require the Licensee to return all copies of the Information then in its
possession or control;
(b) suspend the Licensor's delivery of updates of the Information to the
Licensee.
Any breach or violation by a Registered Affiliate of any condition or term of this
Agreement shall constitute a breach or violation by the Licensee. Notwithstanding
the foregoing, the Licensor shall have the right to invoke all or any of the Remedies
with respect to such Registered Affiliate without affecting the rights of the Licensee
or any other Registered Affiliate hereunder.
5.3 Termination by the Licensee. In the event that the Licensor does not
deliver the Information in accordance with the Fees/Delivery Schedule, and in any
event, within 60 days after the date scheduled for delivery of the Information, the
Licensee, shall, subject to the terms of this Section 5, have the right to terminate this
Agreement without further notice to the Licensor.
5.4 Notice of Licensee's Breach. In the event of a breach or violation by the
Licensee of any condition or term of this Agreement, except as noted below, the
Licensor shall be required to provide written notice of such breach or violation to the
Licensee and shall not be permitted to invoke all or any of the Remedies unless the
Licensee has failed to remedy such breach or violation within thirty (30) days
following receipt of such notice. Notwithstanding the foregoing, the Licensor shall
have the right to invoke all or any of the Remedies immediately in the event of a
breach of any of the Licensee's obligations under the following provisions of this
Agreement:
(a) Section 1.2 (Sublicense);
(b) Section 4 (Charges); or
(c) Section 6 (Confidentiality).
5.5 Obligation on Termination. Upon early termination of this Agreement
pursuant to the provisions of Section 5.2 above, the Licensee shall discontinue use
of the Information, remove all copies of the Information from any computer
equipment then in its possession or control and pay all outstanding amounts owing
at the date of termination, whether invoiced or not.
6. CONFIDENTIALITY
6.1 Licensee Obligations. The Licensee shall hold in confidence and shall not,
without the prior written consent of the Licensor, use or disclose to any person or
entity, except in accordance with the terms of this Agreement, all documents, data
and information, whether in electronic or printed form, relating to the Licensor's
business, including without limitation the Information and the terms of this
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Agreement. The Licensee shall use reasonable care, consistent with the measures
taken to safeguard its own confidential and proprietary information, to ensure that its
officers, employees, agents and representatives are required to keep all such
information confidential.
6.2 Intellectual Property. The Licensee acknowledges that: (a) the Licensor
shall retain all right, title and interest in the Information and all related written
materials; (b) the Information is protected by copyright and/or is a trade secret of the
Licensor; and (c) the Licensor's logos, product names, documentation and other
support material are either copyrighted or trade marked, and constitute valuable
intellectual property of the Licensor. The Licensee agrees not to remove any
product identification or notice of proprietary restrictions from the Licensor's products
and acknowledges that it does not, by virtue of receiving the Information, acquire any
proprietary rights therein, other than the limited rights granted herein.
7. WARRANTIES
7.1 Rights to Information. The Licensor warrants that it owns or has the right to
distribute the Information in accordance with this Agreement and that it has the
authority to enter into this Agreement and to grant to the Licensee the rights granted
herein.
7.2 Exclusions. THE INFORMATION AND ASSOCIATED WRITTEN
MATERIALS IN CONNECTION THEREWITH ARE PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES STATUTORY OR OTHERWISE
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE
INFORMATION IS WITH THE LICENSEE. THE LICENSOR DOES NOT
WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION THAT THE
INFORMATION WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT THE
OPERATION OF THE INFORMATION WILL BE UNINTERRUPTED OR ERROR
FREE. NO ORAL OR WRITTEN ADVICE GIVEN BY THE LICENSOR, OR ITS
DEALERS, DISTRIBUTORS, AGENTS, OFFICERS OR EMPLOYEES CREATES A
WARRANTY OR IN ANY WAY INCREASES THE LICENSOR'S LIABILITY AND
THE LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
8. LIMITATION OF LIABILITY
8.1 Delay or Interruption. The Licensor shall not be liable to the Licensee or
any other person for any losses, costs, damages or expenses suffered as a result of
(i) errors in the Information, or (ii) delay or failure in performance or interruption in
access to the Information. The Licensor's sole obligation and the Licensee's sole
remedy will be the Licensor's exercise of reasonable efforts to correct any such
errors in the Information and to deliver the Information in a timely manner.
8.2 Limitation of Damages. The Licensor shall not be liable to the Licensee or
any other person for any indirect, consequential or incidental damages resulting from
use or inability to use the Information hereunder including, without limitation, the loss
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of revenues, income, profits, software or data, even if the Licensor has been advised
of the possibility or likelihood of such loss. This limitation shall apply regardless of
whether any action is brought in contract or in tort, including any claim of negligence
or fundamental breach and shall survive the expiry, termination, avoidance or
repudiation of this Agreement.
8.3 Lost Software or Data. The Licensee assumes sole responsibility for the
security and integrity of its software and data and shall be responsible for restoring
any of the Licensee's software or data files which are lost or destroyed due to any
cause including, without limitation, use of the Information. The Licensor's sole
responsibility shall be to provide the Licensee with copies of the Information and
updates thereto in accordance with this Agreement.
9. LICENSEE INDEMNITY
The Licensee hereby agrees to indemnify and hold the Licensor and its directors,
officers, employees, successors and assigns harmless from and against any and all
losses, costs, claims, damages or expenses arising out of the Licensee's use,
modification or alteration of the Information and related materials, including any
action alleging that modifications made by the Licensee infringe the rights of a third
party respecting copyright, trade secret or patent, except where such losses, costs,
claims, damages or expenses arising from the use of the Information, are directly
attributable to the Licensor's errors, omissions and/or negligence.
10. FORCE MAJEURE
Notwithstanding anything in this agreement, neither party shall be liable for any
failure or delay in performing its obligations under this Agreement, other than
payment obligations, due to causes outside its reasonable control, provided that a
party claiming the benefit of this section shall use its best efforts to eliminate the
cause or causes beyond its control including, without limitation, obtaining materials
from other sources or using services of other suppliers. Events of force majeure
shall include, without limitation, failure or malfunction of computer equipment or
software, interruption in telecommunication services, accidents, acts of God, strikes
or other labour disputes. Nothing in this section shall prevent a party from
terminating this Agreement pursuant to section 5 hereof.
11. SURVIVAL
The restrictions on use in Section 1, the payment obligations in Section 4, the
provisions regarding proprietary rights in Section 6, the limitations in Section 8 and
the indemnity in Section 9 shall survive the termination of this Agreement.
12. GENERAL
12.1 Entire Agreement. This Agreement, including any amendments and
supplements hereto, constitutes the entire agreement between the parties with
respect to the subject-matter hereof. This Agreement supercedes all prior or
contemporaneous agreements, negotiations, representations, proposals, discussions
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and understandings, oral or written, relating to the subject-matter hereof. This
Agreement may be amended, supplemented or modified only by written instrument,
signed by each of the parties hereto.
12.2 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
12.3 Notices. All notices required or permitted to be given under this Agreement
shall be in writing and either delivered personally or by pre-paid courier or
transmitted by facsimile or other similar means of confirmed electronic
communication, to the Licensor at:
140 Renfrew Drive
Suite 100
Markham, Ontario
L3R 6B3
Attention:
Fax:
E-mail:
John Knowles
(905) 477-0892
jknowles@firstbasesolutions.com
and to the Licensee at:
605 Rossland Road East, Box 623
Whitby, Ontario
L 1 N 6A3
Attention:
Fax:
E-mail:
Jim Silburn
(905) 666-6205
james.silburn@region.durham.on.ca
or to such other address and facsimile number as either party may notify to the other
from time to time. All notices shall be effective when actually received.
12.4 Relationship of Parties. The relationship of the parties shall be that of
independent contractors. Nothing in this Agreement shall be interpreted to create
any partnership, joint venture, or similar relationship, or subject the parties to any
implied duties or obligations respecting the conduct of their affairs which are not
expressly stated herein.
12.5 Successors and Assigns. This Agreement shall be binding upon and enure
to the benefit of each of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by the Licensee, except
with the prior written consent of the Licensor.
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12.6 Waiver. The failure of either party at any time to require performance of any
provision shall not affect the right to require performance at any other time, nor shall
the waiver by either party of a breach of any provision be a waiver of any succeeding
breach or a waiver of the provision itself.
12.7 Severability. If any provision of the Agreement is declared illegal, void or
unenforceable for any reason, such provision shall be severed from the balance of
this Agreement and the remaining provisions hereof shall continue in full force and
effect.
IN WITNESS WHEREOF the parties have executed this agreement by their duly
authorized representatives.
FIRST BASE SOLUTIONS INC.
John Knowles, V.P. Operations
THE REGIONAL MUNICIPALITY OF DURHAM
Roger Anderson, Regional Chair
P.M. Madill, Regional Clerk
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SCHEDULE "An
INFORMATION
INFORMATION DEFINITION:
"Information" in this Agreement includes:
. FBS Digital Ortho Mapping and DEM Mapping derived from digital vexcel aerial
photography carried out in the Spring of 2008 and the spring of 2010.
GOVERNING SPECIFICATIONS:
The governing specifications for the Information are:
FBS Digital Ortho Mapping:
. Image Type and Resolution - Colour Digital Ortho Mapping with a 20cm pixel
resolution from Vexcel UltraCAM camera system;
. Projection and Referencing System - NAD83, 6 Degree Universal Transverse
Mercator (UTM), Zone 17, Central Meridian 81 Degrees West Longitude;
. Tile Size and Format
1km by 1km GeoTif
. Delivery Media - External Hard Disk Drive or DVDs
FBS DEM Mapping:
In this Agreement "DEM Data" means:
FBS - Digital Elevation Model (DEM)
FBS - 1 Metre 3D Contour Lines
Digital Elevation Model (DEM):
. "Breaklines" to define changes of slope along such features as retaining walls,
swamp edges, shorelines, rivers/streams, natural changes in slope, paved road
edges, gravel road edges, curbed road edges, railway centrelines, parking lot edges,
airport runways and taxiways, dams, unspecified access roads/trails, etc.
. "DEM Points" to define elevations of ground points on a 10m (approx.) grid.
. Tile Size and Format - .ESRI .SHP file format in 1 km Tile format based upon the 6
degree UTM NAD-83 grid Delivery Media - DVD's
. Digital 1m 3D Contour Line Strings:
Line Strings to depict even 1 metre intermediate and 5 metre index contours
generated from the DEM. (no text or cartographic enhancement)
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. Tile Size and Placement - 1 Km by 1 Km tiles based upon UTM grid with even 1000
metre intervals;
. Delivery Format - One ESRI .SHP file per tile.
. Delivery Media - DVD's
Additional FBS Data:
. MrSID. 20cm resolution Colour (MrSID Gen.3) and Black and White (MrSID Gen.2)
for each Municipality and a 40cm resolution Black and White (MrSID) for the entire
region
. Drainage. ESRI .SHP file format. Regional coverage of updated drainage layer of
virtual segments and flow direction in one region-wide file
AREA OF COVERAGE:
The area of Information coverage is described as lands lying within the Regional
Municipality of Durham as described in 2008 ( approximately 2525 sq kms) .
Coverage will include all 1 km tiles that lie within or partially within the above noted
municipal area.
Note: The area to be acquired in 2010 is the southern Municipalities of Pickering,
Ajax, Whitby, Oshawa and south Clarington. An area of approximately 887 sq. km as
shown in Schedule "F".
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II
SCHEDULE "8"
REGISTERED AFFILIATES
(THE FOllOWING IS A LISTING OF APPROVED REGISTERED AFFILIATES)
Municipal governments (including internal departments) within the Regional Municipality
of Durham
Utilities owned by municipal governments within the Regional Municipality of Durham
Public and Catholic School Boards within the Regional Municipality of Durham
Ambulance and Emergency Services within the Regional Municipality of Durham
Durham Regional Police Services and the Durham Regional Police Services Board
Ontario Provincial Police
Municipal Fire Departments within the Regional Municipality of Durham
Conservation Authorities within the Regional Municipality of Durham
Public Libraries within the Regional Municipality of Durham
Veridian Connections
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SCHEDULE "C"
ASSUMPTION AGREEMENT
THIS AGREEMENT is made the
day of
,2008
BETWEEN:
FIRST BASE SOLUTIONS INC.
a corporation existing under the laws of the Province of Ontario
(herein referred to as the "Licensor")
OF THE FIRST PART
- and -
THE REGIONAL MUNICIPALITY OF DURHAM
(herein referred to as the "Licensee")
OF THE SECOND PART
WHEREAS:
A. The Licensor and (the "Licensee") are parties to a Primary Subscriber License
Agreement made as of 2008 (herein referred to as the "Agreement").
B. Pursuant to the Agreement, there can be no use of the Information by the Registered
Affiliate unless the Registered Affiliate first enters into an assumption agreement with
the Licensor and the prior written consent of the Licensor is obtained.
NOW THEREFORE THIS AGREEMENT WITNESSETH that, for good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the parties
hereto covenant and agree each with the other as follows:
1. Covenant to be Bound
The Registered Affiliate covenants and agrees to be bound by all of the terms of the
Agreement in the same manner as if it had been an original signatory thereto and to
the same extent as the Licensee, except that the parties hereto acknowledge that
the Registered Affiliate shall not be responsible for any of the fees as provided for in
Section 4 of the Agreement.
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2. Consent of Licensor
The Licensor hereby grants consent for the use of the Information by the Registered
Affiliate pursuant to the terms of the Agreement.
3. Rights of Registered Affiliate
The Registered Affiliate acknowledges and agrees that its rights under the
Agreement are dependent upon the rights of the Licensee under the Agreement and
shall terminate upon termination of the Agreement for any reason whatsoever.
4. Governing Law
This Assumption Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein.
5. Meanings
Terms used in the Agreement shall have the same meaning as therein when used
herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Assumption
Agreement as of the day, month and year first written.
FIRST BASE SOLUTIONS.
Bv:
Name: John Knowles
Title: V.P. Operations
[REGISTERED AFFILIATE]
Bv
Name:
Title:
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SCHEDULE "D"
FEESIDELlVERY SCHEDULE
FEES
License Fee for 2008 Orthophoto Mapping and Digital Elevation Model of the entire Region
of Durham $195,650.00
License Fee for 2010 Orthophoto Mapping and Digital Elevation Model of the Southern
Municipalities of Pickering, Ajax, Whitby, Oshawa and South Clarington as per FBS letter
dated November 8th 2007. $ 92,550.00
DELIVERY SCHEDULE 2008
Delivery
Digital Orthophoto Mapping & OEM
Colour MrSID of each area municipality
Black & White Mr.SID of each municipality
Black & White Mr.SID for the region (40cm)
Contours
Drainage Layer
September
September
September
September
September
September
DELIVERY SCHEDULE 2010
Delivery
Digital Orthophoto Mapping & OEM
Colour MrSID of each area municipality
Black & White Mr.SID of each municipality
Black & White Mr.SID of entire coverage (40cm)
Contours
Drainage Layer
August
August
August
August
August
August
2008
2008
2008
2008
2008
2008
2010
2010
2010
2010
2010
2010
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SCHEDULE "E"
INTERNET DISPLAY
The Information may not be displayed on the Internet at a pixel resolution that reflects a
ground distance that is less than 50 centimetres or an equivalent ESRI scale dependency
that protects personal privacy.
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SCHEDULE "F"
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APPENDIX "Cn
Fee/Delivery Sheet
1.0 TAXES. Municipal Licensee shall be responsible for and bear all taxes in effect
from time to time relating to its obtaining the products hereunder, whether
assessed, levied prior to, on or after the Effective Date. This section shall
survive termination of this Agreement.
2.0 DELIVERY AND SUPPORT FEES. The delivery and support fees payable for
the Products delivered hereunder are set out below, which amounts are
exclusive of applicable taxes in effect from time to time and Products Licence
fees, if any, and are due and payable on the payment due date as set out below.
The Municipality of Clarington - 2008 Orthophotography
DELIVERY SCHEDULE 2008
Delivery
Digital Orthophoto Mapping & DEM
Colour MrSID of each area municipality
Black & White Mr.SID of each municipality
Black & White Mr.SID for the region
Contours
Drainage Layer
September
September
September
September
September
September
2008
2008
2008
2008
2008
2008
Se tember 30, 2008
licable taxes
2010 Orthophotography
DELIVERY SCHEDULE 2010
Delivery
Digital Orthophoto Mapping & DEM
Colour MrSID of each area municipality
Black & White Mr.SID of each municipality
Contours
Drainage Layer
August
August
August
August
August
$15,300.00
$15,300.00
2010
2010
2010
2010
2010
Au ust 30, 2010
exclusive of a Iicable taxes
$9,300.00
$9,300.00
Attachment #3
Schedule "A"
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW # 2008 -
Being a By-law to authorize a contract between the Corporation of the
Municipality of Clarington and the Region of Durham, Lake Front
Municipalities and First Base Solutions Inc., to enter into agreement for
the purchase of Orthophotography
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS
FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the
Municipality of Clarington and seal with the Corporation Seal, a contract between First Base
Solutions and said Corporation: and
2. THAT the contract attached hereto as Schedule "A" form part of the By-law.
By-law read a first and second time this day of , 2008
By-law read a third time and finally passed this day of
,2008
Jim Abernethy, Mayor
Patti L. Barrie Municipal Clerk