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HomeMy WebLinkAbout2008-146 THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON BY-lAW # 2008 - 146 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 14th day of July, 2008 By-law read a third time and finally passed this 14th day of July, 2008 -- --~~- SUB-LICENCE AGREEMENT THIS AGREEMENT is made this n, ofJ , 2008 BETWEEN: 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 1 tx�Q and continue until terminated in accordance with the provisions of the Prim ry 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. z - 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 @reg ion.durham.on.ca and to the Municipality at: Attention: Rob Van Dyk Fax: (905) 623-6020 e-mail: rvandyk(a),clarington.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. - 4 - 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. Madi , Regional Clerk I/We have authority to bind the Corporation THE MUNICIPALITY OF CLARINGTON Per: Itl - beneet y, -Mayor Per: ame Me Deputy Clerk I/We have authority to bind the Corporation G:\GIS\Administration\Ortho\Sublicensee agreement_ortho.doc APPENDIX "A" ASSUMPTION AGREEMENT THIS AGREEMENT is made the ZZ day of J , 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. 4 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. Name: �:VbLivx l ies Title: v'p. MUNICIPALITY OF CLARINGTON QV Ry,Nam m rneMayor Title: Name & itl C C. Au e Greentree, Deputy Clerk 1 APPENDIX B 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 Information to create any derived product for any of these prohibited purposes, by any means whatsoever without the prior written consent of the Licensor. K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\whitby\Appendix B-Primary Suscriber License Agreement.doc 2 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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 3 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"): K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 4 (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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B -Primary Suscriber License Agreement.doc 5 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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 6 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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 7 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: John Knowles Fax: (905) 477-0892 E-mail: jknowles @firstbasesolutions.com and to the Licensee at: 605 Rossland Road East, Box 623 Whitby, Ontario L1 N 6A3 Attention: Jim Silburn Fax: (905) 666-6205 E-mail: 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. K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 8 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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 9 SCHEDULE "A" 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: FIBS 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 1 km by 1 km GeoTif • Delivery Media — External Hard Disk Drive or DVDs FIBS DEM Mapping: In this Agreement "DEM Data" means: FIBS - Digital Elevation Model (DEM) FIBS - 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 1km 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) K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc , IO • 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 FIBS Data: • rSID-20cm resolution Co our MrSlb 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". K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 11 SCHEDULE "B" 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 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc t 12 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. K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 13 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. By: Name: John Knowles Title: V.P. Operations [REGISTERED AFFILIATE] By Name: Title: K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 14 SCHEDULE "D" FEES/DELIVERY 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 & DEM September 2008 Colour MrSID of each area municipality September 2008 Black&White Mr.SID of each municipality September 2008 Black &White Mr.SID for the region (40cm) September 2008 Contours September 2008 Drainage Layer September 2008 DELIVERY SCHEDULE 2010 Delivery Digital Orthophoto Mapping & DEM August 2010 Colour MrSID of each area municipality August 2010 Black &White Mr.SID of each municipality August 2010 Black &White Mr.SID of entire coverage (40cm) August 2010 Contours August 2010 Drainage Layer August 2010 1 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 15 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. K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc 16 SCHEDULE "F" R,Nc,I 3 K:\GIS\Administration\Ortho\Ortho2008\stakeholder packages\clarington\Appendix B-Primary Suscriber License Agreement.doc r. f APPENDIX "C" 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 September 2008 Colour MrSID of each area municipality September 2008 Black &White Mr.SID of each municipality September 2008 Black &White Mr.SID for the region September 2008 Contours September 2008 Drainage Layer September 2008 f N .Y�L"� ,-+�1: a'§°,�j�a^rz ,t�S* �s��r���rs��=.��,�.`,�°' -, r.,t'��3�„�'-` a'�r���-'�'4.P�. �✓ w.���,""� a r�y j�° �YYv��✓ �t '.+.s`�.^�.✓f`"�.h s"�' �,l ` September 30, 2008 $15,300.00 Total Delivery Fees exclusive of applicable taxes $15,300.00 2010 Orthophotography DELIVERY SCHEDULE 2010 Delivery Digital Orthophoto Mapping & DEM August 2010 Colour MrSID of each area municipality August 2010 Black &White Mr.SID of each municipality August 2010 Contours August 2010 Drainage Layer August 2010 sa€-£`r v..a.vys r '„r-: u "`` a° f7' t. 5'✓ d'c `3.iA �,m"3 y 's¢� �ey}y� .� Z4�,a2 a.-:pia}hrm j ti., l.s ._,i� ��,� .f'���S'�����z�t✓a'�t ��, ��✓�� a�,.����rk i {� � �� �i"i�� 'ham s >. a. ,..�,:: ;'`'.�.:�` ...,s,.,ry.,f.,,. '?.r, c � s�l �✓�,,r:. �.c7r) ,��. l�e �x""� '`"+✓' .. August 30, 2010 $9,300.00 Total Delivery Fees exclusive of applicable taxes $9,300.00