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Home My WebLink AboutC-5692 - Agreement for Areial Photographycs' 1J7 IN AGREEMENT BETWEEN PICTOMETRY INTERNATIONAL CORP. AND CITY OF NEWPORT BEACH, CA This Agreement is made and entered into as of this /day of December, 2013, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "Customer "), and PICTOMETRY INTERNATIONAL CORP., a Delaware corporation ( "Pictometry "), whose address is 100 Town Centre Drive, Suite A, Rochester, NY 14263, and is made with reference to the following terms and conditions: 1. This order form ( "Order Form'), consisting of the following Paragraphs I through 10, inclusive, and in combination with the contract components listed below: Section A: Product Descriptions, Prices and Payment Terms Section B: License Terms: • Delivered Content Terms and Conditions of Use • Online Services General Terms and Conditions • Software License Agreement Section C: Non - Standard Terms and Conditions Appendix 1: Photogrammetric Product Specifications (all of which, collectively, constitute the "Agreement ") sets forth the entire understanding between Pictometry and Customer with respect to the subject matter hereof and supersedes all prior representations, agreements and arrangements, whether oral or written, relating to the subject matter hereof. Any modifications to the Agreement must be made in writing and be signed by duly authorized officers of each party. Any purchase order or similar document issued by Customer in connection with this Agreement is issued solely for Customer's internal administrative purposes and the terms and conditions set forth on any such purchase order shall he of no force or effect as between the parties. The term of this Agreement shall commence on the Effective Date, and shall terminate 2 years from the date of image delivery, unless terminated earlier as set forth herein. Pictometry's compensation for all Work performed in accordance with this Agreement, including shall not exceed One Hundred Thousand Two Hundred Fifty -Six Dollars and SO/ 100 ($100,256.50) without prior written authorization from Customer. 2. In the event of any conflict among any contract components comprising the Agreement, order of precedence for resolving such conflict shall be, from highest (i.e,, supersedes all others) to lowest (i.e., subordinate to all others): Non - Standard "fenus and Conditions, Photogrammetric Product Specifications, License Terms in order as listed above under the heading `Section B: License Terms', and Order Form. 3. All notices under the Agreement shall be in writing and shall be sent to the following respective addresses: CUSTOMER NOTICE ADDRESS PICTOMETRY NOTICE ADDRESS 100 Civic Center Drive 100 Town Centre Drive, Suite A Newport Beach California 92660 Rochester, NY 14623 Attn: Scott Watson, GIS Director Attn: Contract Administration Phone: (949) 644 -3184 Fax: Phone: (585) 486 -0093 Fax: (585) 486 -0098 Either party may change its respective notice address by giving written notice of such change to the other party at the other party's then - current notice address. Notices shall be given by any of the following methods: personal delivery; reputable express courier providing written receipt; or postage -paid certified or registered United States mail, return receipt requested. Notice shall be deemed given when actually received or when delivery is refused. 4. The Agreement, including all licenses granted pursuant to it, shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, but shall not be assignable by either party except that (i) Page i of 27 City of Newport Beach, CA- 0141002 -A 20131217 CMT- 00054- 20130520 Pictometry shall have the right to assign its right to receive Fees under the Agreement, provided no such assignment shall affect Pictometry's obligations hereunder, and (ii) Pictometry shall have the right to assign all its rights under the Agreement to any person or entity, provided the assignee has assumed all of Pictumetry's obligations under the Agreement. 5. IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (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 OTHERS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. With respect to any claims that Customer may have or assert against Pictometry on any matter relating to the Agreement, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry pursuant to the Agreement. 7. The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind. &. In the event that any of the provisions of the Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of the Agreement shall remain in full force and effect. 9. Pictometry shall not be responsible for any failure on its part 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, weather, 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 performance for a period of time reasonably related to the time and nature of the cause of the delay. 10. In consideration of, and subject to, payment by Customer of the Fees specified in Section A of this Agreement, Pictometry agrees to provide Customer with access to and use of the products specified in Section A of this Agreement, subject to the terms and conditions set forth in this Agreement. Customer hereby agrees to pay the Fees specified in Section A of this Agreement in accordance with the stated payment terms and accepts and agrees to abide by the terms of this Agreement. Page 2 of 27 City of Newpon Beach, CA— C 141002•A 20131217 CMT -00054 - 201 3 052 0 This Agreement shall become effective upon execution by duly authorized officers of the Customer and Pictometry and receipt by Pictometry of such fully executed document, such date of receipt by Pictometry being the "Effective Date." IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CI1 Dat By: Aar Cit, ATTEST, Date: Leilani I. Brown /��i ►1C�N/l�■r�isa�l��"1� ��`1 .. City Clerk CITY OF NEWPORT BEACH a California municipal corporation By: � !(--� Dave City Manager Page 3 of 27 CONSULTANT: PICTOMETRY INTERNATIONAL CORP., a Delaware co v n Date: % orat' / B . Name Title By:_ Name Title City of Newport Beach, CA — C 141002-A 20131217 CMT -00054-20130520 SECTION A Pictometry International Corp. 100 Town Centre Drive, Suite A Rochester, NY 14623 BELL TO _ City of Newport Beach, CA Scott Watson 100 Civic Center Drive Ne ort Beach, California 92660 449)644 -3184 swatson d.ne rtbeachca. ov PRODUCT DESCRIPTIONS, PRICES AND PAYMENT TERMS ORDER # C141002 SHIP TO Ci of Newport Beach, CA Scott Watson 100 Civic Center Drive Newport Beach, California 92660 949 644 -3184 swatson@newportbeachea.gov CUSTOMER ID SALES REP FREQUENCY OF PROJECT A119063 b arcia Biennial FIRST PROJECT QTY PRODUCT NAME PRODUCT DESCRIPTION LIST DISCOUN AMOUNT PRICE T PRICE 6/6 53 AccuPLUS Sin - PICT Product includes: 3 -inch GSD AccuPlus $795.00 $675.75 $35,814.75 DTM - Per Sector - ortho mosaic tiles (GeoTIFF format), 3- Custom Area inch GSD oblique frame images (4 -way), 3 -inch GSD orthogonal frame images, 3- inch GSD area -wide ortho mosaic (ECW format), 1 -meter GSD ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; Nominal Oblique GSD (all values + / -10 %): Front Line: 0.24 feet /pixel, Middle Line: 0.28 feet/pixel, Back Line: 0.34 feet/pixel. Ortho- mosaic accuracy: 1.00 ft. RMSE (X or Y); 2.45 ft NSSDA 95 %; meets or exceeds NMAS & ASPRS Class 1 at V= Refer to attached terms and conditions. 53 LiDAR- OWNED -0.7m Available with purchase of AccuPlus $200.00 $10,600.00 postings (sq mi) with product. LiDAR data delivered in tiled AccuPlus LAS format, nominal raw post spacing of 0.7m, vertical accuracy sufficient to support optional generation of 1 -ft contours (available separately). 50 square mile minimum. Ownership extends to LiDAR data and derivative works purchased concurrently only. Refer to attached terms and conditions. 35 AccuPLUS 9in - Per Product includes: 9 -inch GSD AccuPlus $345.00 $29125 $10,263.75 Sector - Custom Area ortho mosaic tiles (GeoTIFF format), 9- inch GSD oblique frame images (4 -way), (15 %) 9 -inch GSD orthogonal frame images, 9- inch GSD area -wide ortho mosaic (ECW format), 1 -meter GSD ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD: Page 4 of 27 (City of Newport Beach, CA — C 141002 -A 20131217 CMT-00054- 20130520 Page 5 of 27 City of Newport Beach, CA— C 141602 -A 20131217 CMT�OW54 20130520 0.75 feet/pixel; Nominal Oblique GSD (all values +51-10 %): Front Line: 0.74 feet/pixel, Middle Line: 0.85 feet/pixel, Back Line: 1.00 feet/pixel. Ortho- mosaic accuracy: 2.65 ft. RMSE (X or Y); 6.5 ft NSSDA 95 %; meets or exceeds WAS & ASPRS Class I at 1 " =200'. Refer to attached terms and conditions. 1 AccuPLUS Project Fee - AcmPLUS project fee for projects without $7,500.00 $4,500.00 $4,500.00 PICT DTM customer- supplied DTM 40 ° /fl) 53 LIDAR -DEM and I ft Available with qualifying LiDAR $55.00 $2,915.00 contours (sq mi) purchase. Gridded bare earth DEM in AreGIS GRID format and tiled contours at a I -foot interval in ESRI Polyline Feature Class format. Refer to attached terms and conditions. 1 Pictometry Connect - Pictometry Connect - CA - 50 (Custom $4,000.00 $1,500.00 $1,500.00 CA - 50 Access) provides up to 50 concurrent authorized users the ability to login and (63 0/.) access the Pictometry- hosted custom imagery libraries specified elsewhere in this Agreement via a web -based, server - based or desktop integration. The default deployment is through web -based Pictometry Connect. Term commences on date of activation. License Term: 2 Year (s) 53 LIDAR -First Return Available with qualifying LiDAR $5.00 $265.00 LAS /XYZ (sq mi) purchase. Pictometry will create a copy of the original dataset containing all first return points in LAS (vl.2) and ASCII XYZI format. Two output files are created and delivered per input LAS tile: first return points in LAS format tiled in same schema as base deliverable data files; first return points in ASCII XYZI format tiled in same schema as base delivered data files. I Media Drive Capacity External USB 2.0 / eSATA Externally $199.00 $1.99.00 931.0 -Drive Model IT Powered. Delivery media prices include - F.XTPOWER copying a complete image library onto media. Sub- warehousing sold separately. 53 LIDAR -Bare Earth XYZ Available with qualifying LiDAR $3.00 $159.00 (sq mi) purchase. Additional set of tiles containing only points classified as ground in ASCII XYZ format. Points classified as ground (i.e. class 2) will be exported to XYZI ASCII text format. One output file per LAS tile is created. Deliverable is ground classified points in ASCII XYZI format tiled in same schema as base deliverable data files. 1 Pictometry Connect - Pictometry Connect - Third -Party Product $0.00 Third-Party Product Activation provides a licensed Pictometry Page 5 of 27 City of Newport Beach, CA— C 141602 -A 20131217 CMT�OW54 20130520 SECOND PROJECT Activation customer a security key which will enable PRODUCT DESCRIPTION LIST DISCOUN AMOUNT them to access their Connect account PRICE T PRICE through an approved Pictometry Third - 53 Party Application product. End Customer Product includes: 3 -inch GSD oblique $450.00 $427.50 $22,657.50 requires an existing Connect or Connect frame images (4 -way), 3 -inch GSD PFW / View account. Associated Third - orthogonal frame images, 1 -meter GSD (5 %) Party Application indicated within the ortho mosaic sector tiles and one area -wide Product Parameters. I -meter GSD mosaic (ECW format). 35 Mosaic - Area Wide (9in Available with purchase of corresponding $0.50 $0.00 $0.00 GSD; MrSID format, tile product. New processing or re- Oblique GSD (all values + / -10 %): Front combined) Per Sector processing of MRSID area -wide mosaics Line: 0.24 feet /pixel, Middle Line: 0.28 (100 %) of 9 -inch GSD imagery. Tiles are feet/ ixel, Back Line: 0.34 feet/ pixel. 35 provided "as is." Refer to Product Product includes 9 -inch GSD oblique $200.00 $190.00 $6,650.00 Parameters for additional details. frame images (4 -way), 9 -inch GSD 1 Electronic Field Study One copy of Electronic Field Study $0.00 $0.00 EFS software, latest version. ortho mosaic sector tiles and one area -wide 1 AccuPlus Imagery Includes digital copy of the Licensed $0.00 $0.00 Bundle with Two (2) Documentation for the License Software, Years of EFS two (2) End User Training Sessions, one Maintenance & Support (1) Advanced User Technical Training, one (1) Administration / IT Training Session, ten (10) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and access to download updated versions of the EFS Licensed Software for a period of two years from the initial date of shipment of the EFS software, along with a copy of the updated documentation. 53 Mosaic - Area Wide (3in Available with purchase of corresponding $2.00 $0.00 $0.00 GSD; MrSID format, AccuPlus product. New processing or re- combined) Per Sector processing of MRSID area -wide mosaics (100 %) of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. SUBTOTAL —FIRST PROJECT $66,21650 SECOND PROJECT QTY PRODUCT NAME PRODUCT DESCRIPTION LIST DISCOUN AMOUNT PRICE T PRICE 53 IMAGERY - Product includes: 3 -inch GSD oblique $450.00 $427.50 $22,657.50 NEIGHBORHOOD - 4- frame images (4 -way), 3 -inch GSD way (N5) (3in) Per orthogonal frame images, 1 -meter GSD (5 %) Sector ortho mosaic sector tiles and one area -wide I -meter GSD mosaic (ECW format). Orthogonal GSD: 0.25 feet/pixel; Nominal Oblique GSD (all values + / -10 %): Front Line: 0.24 feet /pixel, Middle Line: 0.28 feet/ ixel, Back Line: 0.34 feet/ pixel. 35 IMAGERY- Product includes 9 -inch GSD oblique $200.00 $190.00 $6,650.00 COMMUNITY - 4 -way frame images (4 -way), 9 -inch GSD (C5) (9in) - Per Sector orthogonal frame images, 1 -meter GSD (5 %) ortho mosaic sector tiles and one area -wide Page 6 of 27 City of Newport Beach, CA — 0141002 -A 20131217 CMT -OW54- 20130520 Page 7 of 27 City of New" Beach, CA —C 141002 -A 20131217 CMT- 00054- 24130520 I -meter GSD mosaic (ECW format). Orthogonal GSD: 0.75 feet/pixel; Nominal Oblique GSD (all values + / -10 %): Front Line: 0.74 feet/pixel, Middle Line: 0.$5 feet/ ixel, Back Line: 1.00 feet/pixel. 1 Pictometry Connect - Pictometry Connect - CA - 50 (Custom $4,000.00 $3,000.00 $3,000.00 CA - 50 Access) provides up to 50 concurrent authorized users the ability to login and (25 %) access the Pictometry- hosted custom imagery libraries specified elsewhere in this Agreement via a web - based, server - based or desktop integration. The default deployment is through web -based Pictometry Connect. Term commences on date of activation. License Term: 2 Year(s) 53 Tiles - Standard (4in Available with corresponding 3" GSD or $20.00 $1,060.00 GSD; TIFF format) Per 4" GSD imagery purchase. 4 -inch GSD Sector Mosaic Tiles in TIFF Format. Tiles are provided "as is." Refer to Product Parameters for additional details. 35 Tiles - Standard (gin Available with corresponding 9" GSD $10.00 $350.00 GSD; TIFF format) Per imagery purchase. 9 -inch GSD Mosaic Sector Tiles in TIFF Format. Tiles are provided "as is." Refer to Product Parameters for additional details. 1 Media Drive Capacity External USB 20 / eSATA Externally $199.00 $199.00 931 G -Drive Model IT Powered. Delivery media prices include - EXTPOWER copying a complete image library onto media. Sub-warehousing sold separately. 53 Mosaic - Area Wide (4in Available with purchase of corresponding $2.00 $106.00 GSD; MrSID format, tile product, New processing or re- combined) Per Sector processing of MRSID area -wide mosaics of 4 -inch GSD imagery. Tiles arc provided "as is." Refer to Product Parameters for additional details, 35 Mosaic - Area Wide (9in Available with purchase of corresponding $0.50 $17.50 GSD; MrSID format, the product. New processing or re- combined) Per Sector processing of MRSID area -wide mosaics of 9 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. 1 EAP PROGRAM Refer to detailed description of EAP $0.00 $0.00 Program in attached Agreement. I Electronic Field Study One copy of Electronic Field Study $0.00 $0.00 EFS software, latest version. 1 Oblique Imagery Bundle Includes digital copy of the Licenscd $0.00 $0.00 with Two (2) Years of Documentation for the License Software, EFS Maintenance & two (2) End User Training Sessions, one Support (1) Advanced User Technical Training, one (1) Administration / IT Training Session, ten (10) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and Page 7 of 27 City of New" Beach, CA —C 141002 -A 20131217 CMT- 00054- 24130520 access to download updated versions of the EFS Licensed Software for a period of two years from the initial date of shipment of the EFS software, along with a copy of the updated documentation. SUBTOTAL — SECOND PROJECT $34,040.00 Thank you for choosing Pictometry as your service provider. TOTAL $100,256.50 Amount per product= ((1- Discount %) * Qty * List Price) FEES; PAYMENT TERMS All amounts due to Pictometry pursuant to this Agreement ( "Fees ") are in expressed in United States dollars and do not include any duties, taxes (including, without limitation, any sales, use, ad valorem or withholding, value added or other taxes) or handling fees, all of which are in addition to the amounts shown above and, to the extent applicable to purchases by Customer, shall be paid by Customer to Pictometry without reducing any amount owed to Pictometry unless documents satisfactory to Pictometry evidencing exemption from such taxes is provided to Pictometry prior to billing. To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty (30) days following the invoice due date, such unpaid amounts shall accrue, and Customer shall pay, interest at the rate of 1.5% per month (or at the maximum rate allowed by law, if less). In addition, Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts amount due under this Agreement including, but not limited to, attorneys' fees and court costs. FIRST PROJECT Due at Signing $9,856.81 Due at Initial Shipment of Imagery $29,570.44 Due at First Anniversary of Shipment of Imagery $25,28915 Due at Activation of Connect/POL $1,500.00 Total Payments $66,216.50 SECOND PROJECT Due at Initial Shipment of Imagery $16,386.25 Due it First Anniversary of Shipment of Imagery $14,653.75 Due at Activation of ConnecttPOL $3,000.00 Total Payments $34,040.00 PRODUCT PARAMETERS IMAGERY — SECOND PROJECT Product: IMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector Ortho Tile Projection: State Plane, NAD83 Ortho Tile Format: TIFF Units: Feet Elevation Source: USGS Leaf. Less than 30% leaf cover (Off) Special Instructions: Product: IMAGERY - COMMUNITY - 4 -way (C5) (9in) - Per Sector Ortho Tile Projection: State Plane, NAD83 Ortho Tile Format: TIFF Units: Feet Elevation Source: USGS Leaf Less than 30% leaf cover (Off) Special Instructions: Pages of 27 City of Newport Beach, CA— C 141002•A 20131217 CMT-00454- 20130520 ACCUPLUS IMAGERY— FIRST PROJECT Product: AccuPLUS 31n - PICT DTM - Per Sector - Custom Area Ortho Tile Projection: State Plane, NAD83 Ortho Tile Format: TIFF Units: Feet Elevation Source: USGS Coverage Area Format: Shapefile Leaf Less than 30% leaf cover (Off) Special Instructions: Product: AccuPLUS gin - Per Sector - Custom Area Ortho Tile Projection: State Plane, NAD83 Ortho Tile Format: TIFF Units: Feet Elevation Source: USGS Coverage Area Format: Shapeftle Leaf. Less than 30% leaf cover (Off) Special Instructions: Standard Ortho Mosaic Products: Pictometry standard ortho mosaic products are produced through automated mosaicking processes that incorporate digital elevation data with individual Pictometry ortho frames to create large -area mosaics on an extremely cost- effective basis. Because these products are produced through automated processes, rather than more expensive manual review and hand - touched corrective processes, there may be inherent artifacts in some of the resulting mosaics. While Pictometry works to minimize such artifacts, the Pictometry standard ortho mosaic products are provided on an 'AS IS' basis with respect to visible outlines along mosaic seams resulting from the following types of artifacts: i. Disconnects in non - elevated surfaces generally caused by inaccurate elevation data; u. Disconnects in elevated surfaces (e.g., roadways, bridges, etc.) generally caused by elevated surfaces not being represented in the elevation data; iii. Building intersect and clipping generally caused by buildings not being represented in the elevation data; iv: Seasonal variations caused by images taken at different times during a season, or during different seasons; v. Ground illumination variations caused by images taken under different illumination (e.g., sunny, high overcast, morning light, afternoon light, etc.) within one flight day or during different flight days; vi. Single GSD color variations caused by illumination differences or multiple-aircraft/Camera captures; vii. Mixed GSD color variations caused by adjacent areas being flown at different ground sample distances (GSDs); and viii. Water body color variations caused by multiple individual frames being used to create a mosaic across a body of water (e.g., lakes, ponds, rivers, etc.). Other Pictometry products may be available that are less prone to such artifacts than the Pictometry standard ortho mosaic products. CONNECT — FIRST PROJECT Product: Pictometry Connect - CA - 50 Admin User: Scott Watson Admin UserEmaid: swatson(&newportbeachca.gov Requested Activation: Special Instructions: CONNECT — SECOND PROJECT Product: Pictometry Connect - CA - 50 Admin User: Scott Watson Page 9 of 27 City of Newpon Be h, CA — C 141002-A 20131217 CMT- 0005420130520 Admin User Email: swatson @newportbeachca.gov Requested Activation: Special Instructions: CONNECT: GEOFENCES — FIRST PROJECT Geofence: CA Orange CONNECT: GEOFENCES — SECOND PROJECT Geofence: CA Orange CONNECT - THIRD -PARTY INTEGRATION — FIRST PROJECT Product: Pictometry Connect - Third -Party Product Activation Server Integration: Image Navigator (Internal) Third -Party Integrator: Latitude Geographies (Geocortex; IN- Internal) Special Instructions: Technical Contact: Scott Watson Company Name: City of Newport Beach, CA Phone Number: (949) 644 -3184 Email Address: swatson @newportbeachca.gov LIDAR — FIRST PROJECT Product: LIDAR -First Return LAS/XYZ (sq mi) Funding Source: (see related Terms & Conditions as applicable) Special Instructions: Product: LIDAR -Bare Earth XYZ (sq mi) Funding Source: (see related Terms & Conditions as applicable) Special Instructions: Product: LIDAR -DEM and Ift contours (sq mi) Funding Source: (see related Terms & Conditions as applicable) Special Instructions: Product: LiDAR- OWNED -0.7m postings (sq mi) with ACCUPIUS Funding Source: (see related Terms & Conditions as applicable) Special Instructions: Economic Alliance Partnership (EAP) Customer is eligible for the EAP program described below for a period of two years from the Effective Date. Following payment to Pictometry of amounts due with respect to each subsequent capture, Customer will be eligible for the then - current EAP program for a period of two years from delivery of such subsequent capture. A. Disaster Coverage Imagery at No Additional Charge — Pictometry will, upon request of Customer and at no additional charge, provide updated imagery of up to 200 square miles of affected areas (as determined by Pictometry) upon the occurrence of any of the following events during any period Customer is eligible for the EAP program: • Hurricane: areas affected by hurricanes of Category II and higher. (Coverage for hurricanes below Category II and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then - current EAP rates.) Page 10 of 27 City of Newport Beach, CA— 0141002 -A 20131217 CMT -00054- 20130520 • Tornado: areas affected by tornados rated EF4 and higher. (Coverage for tornados below EF4 and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then - current EAP rates.) • Terrorist: areas affected by damage from terrorist attack. (Coverage for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then- current EAP rates.) • Earthquake: areas affected by damage to critical infrastructure resulting from earthquakes measured at 6.0 or higher on the Richter scale. (Coverage for earthquakes rated below 6.0 on the Richter scale and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then- current EAP rates.) • Tsunami: areas affected by damage to critical infrastructure resulting from tsunamis. (Coverage for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then - current EAP rates.) B. Software— Use of Pictometry Change AnalysisTM — Pictometry's EAP program includes the use of Change Analysis software for a term of ninety days from the date of delivery of the EAP imagery. The Change Analysis software simultaneously compares pre and post disaster images to aid recovery and restoration efforts. Page t I of 27 City of Newport Beach, CA - CI41002 -A 20131217 CMT- 00054 - 20130520 SECTION B PICTOMETRY DELIVERED CONTENT TERMS AND CONDITIONS OF USE LICENSE TERMS These Pictometry Delivered Content Terms and Conditions of Use (the "Delivered Content Terms and Conditions "), in combination with the corresponding Agreement into which these terms are incorporated, collectively set forth the terms and conditions that govern use of Delivered Content (as hereinafter defined) for use within computing environments operated by parties other than Pictometry. As used in the Delivered Content Terms and Conditions the terms "you' and "your" in uppercase or lowercase shall mean the Customer that entered into the Agreement into which the Delivered Content Terms and Conditions are incorporated. 1. DEFINITIONS 11 "Authorized Subdivision" means, if you are a county or a non -state consortium of counties, any political unit or subdivision located totally or substantially within your boundaries that you authorize to have access to Delivered Content pursuant to the Delivered Content Terms and Conditions. 1.2 "Authorized System" means a workstation or server that meets each of the following criteria (i) it is owned or leased by you or an Authorized Subdivision, (ii) it is located within and only accessible from facilities that are owned or leased by you or an Authorized Subdivision, and (iii) it is under the control of and may only be used by you or Authorized Subdivisions. 1.3 "Authorized User" means any employee of you or Authorized Subdivisions that is authorized by you to have access to the Delivered Content through an Authorized System. 1.4 "Delivered Content' means the images, metadata, data layers, models, reports and other geographic or structural visualizations or embodiments included in, provided with, or derived from the information delivered to you by or on behalf of Pictometry pursuant to the Agreement. 1.5 "Project Participant' means any employee or contractor of persons or entities performing services for compensation for you or an Authorized Subdivision that has been identified by written notice to Pictometry prior to being granted access to Delivered Content and, unless Pictometry expressly waives such requirement for any individual, has entered into a written agreement with Pictometry authorizing such access. 2. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 2.1 Subject to the terms and conditions of the Agreement, you are granted nonexclusive, nontransferable, limited rights to: (a) install the Delivered Content on Authorized Systems; (b) permit access and use of the Delivered Content through Authorized Systems by: (i) Authorized Users for performance of public responsibilities of you or Authorized Subdivisions that are to be performed entirely within facilities of you or Authorized Subdivisions; (ii) Project Participants under the supervision of Authorized Users for performance of tasks or preparation of materials using only hard copies (or jpg copies) of Delivered Content solely for fulfilling public responsibilities of you or Authorized Subdivisions to be performed entirely within facilities of you or Authorized Subdivisions; and (iii) individual members of the public, but only through Authorized Users and solely for the purpose of making hard copies or jpg copies of images of individual properties or structures (but not bulk orders of multiple properties or structures) to the individual members of the public requesting them. 2.2 You may not reproduce, distribute or make derivative works based upon the Delivered Content in any medium, except as expressly permitted in the Delivered Content Terms and Conditions. 2.3 You may not offer any part of the Delivered Content for commercial resale or commercial redistribution in any medium. 2A You may not distribute or otherwise make available any Delivered Content to Google or its affiliates, either directly or indirectly. 2.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent of Pictometry. 2.6 You may not remove, alter or obscure copyright notices or other notices contained in the Delivered Content. 2.7 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in Page 12 of 27 City of Newport Beach, CA — C 141002•A 20131217 CMT-0o054 -201 30520 Delivered Content in all media belong to Pictometry or its third party suppliers. Neither you nor any users of the Delivered Content acquire any proprietary interest in the Delivered Content, or any copies thereof, except the limited use rights granted herein. 3. OBLIGATIONS OF CUSTOMER 3.1 Geographic Data. If available, you agree to provide to Pictometry geographic data in industry standard format (e.g., shape, DBF) including, but not limited to, digital elevation models, street centerline maps, tax parcel maps and centroids, which data, to the extent practicable, shall be incorporated into the Delivered Content. You agree that any of this data that is owned by you may be distributed and modified by Pictometry as part of its products and services, provided that at no time shall Pictometry claim ownership of that data. 3.2 Notification. You shall (a) notify Pictometry in writing of any claims or proceedings involving any of the Delivered Content within ten (10) days after you learn of the claim or proceeding, and (b) report promptly to Pictometry all claimed or suspected defects in Delivered Content. 3.3 Authorized User Compliance. You shall at all times be responsible for compliance by each Authorized User with the Delivered Content Perms and Conditions. 3.4 Authorized Subdivision Compliance. You shall at all times be responsible for compliance by each Authorized Subdivision with the Delivered Content Tetras and Conditions. 3.5 Project Participants. Each notice to Pictometry identifying a potential Project Participant shall include a detailed description of the scope and nature of the Project Participants' planned work and the intended use of the Delivered Content in such work. Pictometry retains the right to restrict or revoke access to Delivered Content by any Project Participant who does not comply with the terms of the Delivered Content Terms and Conditions. 4. LICENSE DURATION; EFFECT OF TERMINATION 4.1 Term. The license granted to you in the Delivered Content Terms and Conditions is perpetual, subject to Pictometry's right to terminate the license in the event you do not pay in full the Fees specified elsewhere in the Agreement, the Agreement is terminated for any reason other than a breach of the Agreement by Pictometry, or as otherwise provided in the Agreement. 4.2 Effect of Termination. Upon termination of the license granted to you in the Delivered Content Terms and Conditions, you shall immediately cease all use of the Delivered Content, promptly purge all copies of the Delivered Content from all workstations and servers on which any of it may be stored or available at the time, and return hard drive/media containing Delivered Content to Pictometry. 5. TRADEMARKS; CONFIDENTIALITY 5.1 Use of Pictometry's Marks. You agree not to attach any additional trademarks, trade names, logos or designations to any Delivered Content or to any copies of any Delivered Content without prior written approval from Pictometry. You may, however, include an appropriate government seal and your contact information so long as the seal and contact information in no way obscure or deface the Pictometry marks. You further agree that you will not use any Pictometry trademark, trade name, logo, or designation in connection with any product or service other than the Delivered Content. Your nonexclusive right to use Pictometry's trademarks, trade name, logos, and designations are coterminous with the license granted to you in the Delivered Content Terms. 5.2 Confidentiality of Delivered Content. The Delivered Content consists of commercially valuable, proprietary products owned by Pictometry, the design and development of which reflect an investment of considerable time, effort, and money. The Delivered Content is treated by Pictometry as confidential and contains substantial trade secrets of Pictometry. You agree that you will not disclose, provide a copy of, or disseminate the Delivered Content (other than as expressly permitted in the Delivered Content Terms and Conditions) or any part thereof to any person in any manner or for any purpose inconsistent with the license granted to you in the Delivered Content Terms and Conditions. You agree to use your best efforts to assure that your personnel, and any others afforded access to the Delivered Content, protect the Delivered Content against unauthorized use, disclosure, copying, and dissemination, and that access to the Delivered Content and each part thereof will be strictly limited. 6. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES 6.1 Limited Warranties; Exclusive Remedy. Pictometry warrants that the Delivered Content will contain true and Page 13 of 27 City of Newport Beach, CA — C 14 t002 -A 20131217 CMT -00054 20130520 usable copies of the designated imagery as of the date of capture. As the sole and exclusive remedy for any breach of the foregoing warranty, Pictometry shall use reasonable efforts to correct any deficiency that precludes use of the Delivered Content in the manner intended. 6.2 Disclaimer of Other Warranties. Except as provided in Section 6.1, above, THE DELIVERED CONTENT IS PROVIDED TO YOU "AS IS" AND "WITH ALL FAULTS." PICTOMETRY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ACCURACY, ARE HEREBY DISCLAIMED AND EXCLUDED BY PICTOMETRY. 6.3 Limitation of Liability. With respect to any other claims that you may have or assert against Pictometry on any matter relating to the Delivered Content, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry in payment for Delivered Content during the immediately preceding twenty -four {24} month period. 7. MISCELLANEOUS PROVISIONS 7.1 Restricted Rights. Delivered Content acquired with United States Government funds or intended for use within or for any United States federal agency is provided with "Restricted Rights" as defined in DFARS 252.227 -7013, Rights in Technical Data and Computer Software and FAR 52.227 -14, Rights in Data - General, including Alternate III, as applicable. 7.2 Governing Law. This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law principles. [END OF DELIVERED CONTENT TERMS AND CONDITIONS] Page 14 of 27 City of Newport Reach, CA— C141002 -A 20131217 CM 'r- 00054 - 20130520 0 PICTOMETRY ONLINE SERVICES GENERAL TERMS AND CONDITIONS LICENSE TERMS These Pictometry Online Services General Terms and Conditions (the "General Terms and Conditions "), in combination with the corresponding Pictometry order form, if any, collectively constitute the license agreement (the "License Agreement ") that governs your use of the Pictometry online services (the "Online Services "), the images available in the Online Services, and all associated metadata and data layers included in, provided with, or derived from those images (the "Licensed Content ") provided by Pictometry International Corp. and its affiliated companies (collectively, "Pictometry"). The terms "you" and "your" in uppercase or lowercase shall mean the individual, entity (e.g., corporation, limited liability company, partnership, sole proprietor, etc.) or government agency entering into the License Agreement. 1. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 1.1 You are granted a nonexclusive, nontransferable, limited right to access and use the Online Services and the Licensed Content obtained or derived from the Online Services solely for your internal business purposes and not for resale or redistribution. The rights granted to you include, subject to the restrictions set forth below and on the Order Form, the right to copy limited portions of the Licensed Content onto your computer to facilitate preparation of hardeopies and work product records, and the right to make hardcopies of the Licensed Content, provided that the Licensed Content and the permitted copies thereof may not be sold, leased, loaned, distributed, or copied for use by anyone other than you. 1.2 You may not make the Online Services available to any other party. 1.3 You may not copy the Licensed Content or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or more databases of that content for use in substitution for subsequent access to the content through the Online Services. 1.4 You may not distribute or otherwise make available any Licensed Content to Google or its affiliates, either directly or indirectly. 1.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent of Pictometry. 1.6 You may not remove, alter or obscure copyright notices or other notices contained in the Licensed Content. 1.7 You may not offer any part of the Online Services or the Licensed Content for commercial resale or commercial redistribution in any medium. 1.8 You may not use the Online Services or the Licensed Content to compete with any businesses of Pictometry. 1.9 You may not use information included in the Online Services or the Licensed Content to determine an individual consumer's eligibility for (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit. The term "consumer" is defined in the United States Fair Credit Reporting Act at 15 USC §1681. 1.10 You may not access the Online Services via mechanical, programmatic, robotic, scripted or any other automated means. Unless otherwise agreed by Pictometry in writing, use of the Online Services is permitted only via manually conducted, discrete, human- initiated individual search and retrieval activities. 1.11 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Online Services and the Licensed Content in all media belong to Pictometry or its third party suppliers. Neither you nor any users of the Online Services or the Licensed Content acquire any proprietary interest in the Online Services, the Licensed Content, or any copies thereof, except the limited use rights granted herein. 2. ACCESS TO SERVICES 2.1 Only you, your employees, and temporary or contract employees dedicated to performing work exclusively for you (each, an "Eligible User" and collectively, the "Eligible Users ") are eligible to access and use the Online Services and the Licensed Content pursuant to the License Agreement. Each Eligible User to be provided access to the Online Service shall be assigned a unique login/password ( "Pictometry Credential ") for purposes of accessing the Online Services. You agree that each Pictometry Credential shall only be used by the Eligible User to whom it was originally assigned and that Pictometry Credentials may not be shared with, or used by, any other person, including other Eligible Users. You will promptly deactivate an Eligible User's Pictometry Credential in the event the Eligible User no longer meets the eligibility requirements or you otherwise wish to terminate the Page 15427 City of Newport Reach, CA— C141002 -A 20131217 Ch1T- 00054. 26190520 Eligible User's access to the Online Services. You are responsible for all use of the Online Services accessed with Pictometry Credentials issued to your Eligible Users, Including associated charges, whether by Eligible Users or others. You will use reasonable commercial efforts to prevent unauthorized use of Pictometry Credentials assigned to your Eligible Users and will promptly deactivate any Pictometry Credentials you suspect are lost, stolen, compromised, or misused. 2.2 The Online Services, the Licensed Content, and features and functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by Pictometry without notice. 2.3 You are aware and understand that any user data collected or stored by the Online Services may be accessed by US law enforcement agencies under the US PATRIOT Act. You hereby release, and agree to hold Pictometry harmless from, all claims against Pictometry with respect to such access. 3. DISCLAIMERS 3.1 The Online Services and the Licensed Content are provided for visualization purposes only, are not authoritative or definitive, and do not constitute professional engineering or surveying services. 3.2 The Online Services and the Licensed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu of a professional survey where the accuracy of measurements, distance, height, angle, area and volume, may have significant consequences. 3.3 All measurements and reports generated by the Online Services or from the Licensed Content are based upon second order visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes. 3.4 Contour information obtained from the Online Services or contained in the Licensed Content is generated from undersampled elevation data, is provided for informational purposes only, and is not suitable for use as the basis for hydrographic computations, estimations or analyses. 15 While the Online Services and the Licensed Content may be considered useful supplements for life critical applications, they are not designed or maintained to support such applications and Pictometry and its third party suppliers of the Online Services and the Licensed Content hereby disclaim all liability for damages claims and expenses arising from such use. 3.6 Your reliance on the Online Services and the Licensed Content should only be undertaken after an independent review of their accuracy, completeness, efficacy, timeliness and adequacy for your intended purpose. 3.7 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content assume no responsibility for any consequences resulting from the use of the Online Services or the Licensed Content. 3.8 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content hereby disclaim all liability for damages, claims and expenses arising from or in any way related to the accuracy or availability of the Online Services and the Licensed Content. 3.9 By accepting these General Terms and Conditions or by using the Online Services or the Licensed Content, you waive any and all rights you may have against Pictometry, each third party supplier of any portion of the Online Services or the Licensed Content, and each of their directors, officers, members and employees, arising out of use of or reliance upon the Online Services or the Licensed Content. BEFRM FWMAYETIT-1110 4.1 Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your Eligible Users as authorized expressly by this License Agreement. 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4. 1, THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN "AS IS ", "AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. LIMITATION OF LIABILITY 5.1 No Covered Party (as defined below) shall be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or the Licensed Content, (b) the unavailability or interruption of the Online Services or any features thereof or the Licensed Content, (c) your or an Eligible User's use of the Online Services or the Licensed Content, (d) the loss or corruption of any data or Page 16 of 27 City of Newport Beach, CA— C 141002 -A 2013 1217 CMT -0054. 20130520 equipment in connection with the Online Services or the Licensed Content, (e) the content, accuracy, or completeness of the Licensed Content, all regardless of whether you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Parry, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services. 5.2 "Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry; and (b) each third party supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of any Licensed Content or third party alliance entity and their affiliates. 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE LICENSED CONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE, THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY, 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, THE LICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR ELIGIBLE USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS. 5.5 Notwithstanding anything to the contrary in this Section 5: (a) If there is a breach of the warranty in Section 4.1 above, then Pictometry, at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third parry's claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third parry provided: (i) all use of the Online Services and the Licensed Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or the Licensed Content with or into other products, applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct the investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reasonably cooperate with Pictometry in connection with the foregoing. (b) In addition to Section 5.5(a), if the Online Services, the operation thereof or the Licensed Content become, or in the opinion of Pictometry are likely to become, the subject of a claim of infringement, Pictometry may, at its option and expense, either: (i) procure for you the right to continue using the Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non-infringing; or (iii) terminate the License Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre -paid fees or fixed charges. (c) The provisions of Sections 5.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein. 6. MISCELLANEOUS 6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon written notice to you. I£ any changes are made to this License Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Eligible Users but will apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section 6, 1, written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the Online Services following the effective date of any change constitutes acceptance of the change, but does not affect the foregoing termination right. Except as provided above, this License Agreement may not be supplemented, modified or otherwise Page 17 of 27 City of Newport Beach, CA — C 141002 -A 20131217 CMT-00054- 20130520 revised unless signed by duly authorized representatives of both parties. Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name or signature line bearing signature -like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated. 6.2 In the event of a breach of this License Agreement by you, any Eligible User or someone using the Pictometry Credential of an Eligible User, Pictometry may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any other legal remedies available to it. 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 100 Town Centre Drive, Suite A, Rochester, New York 14623- 6.4 The failure of you, Pictometry, or any third party supplier of the Online Services or any Licensed Content to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. 6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the prior written consent of Pictometry. Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License Agreement without Pictometry's consent shall be void, and shall also void the limited license granted to you by this License Agreement. This License Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns. 6.6 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law principles. Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement, the parties specifically consent and agree that the courts of the State of New York or, in the alternative, the Federal Courts located in the State of New York shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action shall be in Monroe County, New York or the U.S. District Court for the Western District of New York,, as applicable. 6.7 This License Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this License Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this License Agreement. 6.8 Where applicable, each affiliated company of Pictometry and each third party supplier of the Online Services or any Licensed Content has the right to assert and enforce the provisions of this License Agreement directly on its Own behalf as a third party beneficiary. 69 In the event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the Licensed Content, you agree to pay all of Pictometry's costs of enforcement and collection, including court costs and reasonable attorneys' fees. 6.10 This License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations relating to that subject matter. [END OF ONLINE SERVICES GENERAL TERMS AND CONDITIONS[ Page 18 of 27 City of Newport Beach, CA— C 141002 -A 20131217 CMT -00054 - 20130520 SECTION B LICENSE TERMS PICTOMETRY SOFTWARE LICENSE AGREEMENT PLEASE. READ THIS SOFTWARE LICENSE AGREEMENT ( "LICENSE ") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. 1. GENERAL. The software ( "Pictometry Software ") and any written materials that accompany the software ( "Documentation ") in any media or form are licensed, not sold, to you by Pictometry International Corp. ( "Pictometry ") for use only under the terms of this License. Pictometry reserves all rights not expressly granted to you in this License. 2. LICENSE. Subject to the terms and conditions of this License, you are granted a limited, non - transferable, terminable, non- sublicenseable, non - exclusive license to install and use the Pictometry Software and the Documentation (collectively, the "Proprietary Materials ") solely for internal use. Use of the functionality provided by the Pictometry Software other than for your internal use is prohibited, except with the prior written approval of Pictometry. You may make one copy of the Pictometry Software in macltine- readable form for backup purposes only; provided that the backup copy must include all copyright and other proprietary notices contained in the original. You will not and will not enable others to decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of, or tamper with or disable any security or monitoring features within the Pictometry Software. Any attempt to do so is a violation of the rights of Pictometry and its licensors. 3. TITLE. The Proprietary Materials are confidential information of, trade secrets of, and are proprietary to Pictometry. Title to the Proprietary Materials is and will remain in Pictometry and its licensors. All applicable rights to patents, copyrights, trademarks, trade secrets, and other intellectual property rights in the Proprietary Materials are and will remain in Pictometry and its licensors. You will not assert any right, title or interest in the Proprietary Materials provided to you under this License, except for the express license granted to you hereunder. You will not remove any copyright or other proprietary notice or legend contained on or included in any Proprietary Materials and you will reproduce all such information on all copies made hereunder. You will keep the Proprietary Materials free of all claims, liens and encumbrances. 4. DISCLAIMERS OF WARRANTY. USE OF THE PICTOMETRY SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PICTOMETRY SOFTWARE IS PROVIDED "AS IS ", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PICTOMETRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PICTOMETRY SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PICTOMETRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PICTOMETRY SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PICTOMETRY SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT DEFECTS IN THE PROPRIETARY MATERIALS WILL BE CORRECTED. 5. LIMITATION OF LIABILITY. IN NO EVENT WILL PICTOMETRY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PICTOMETRY SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF PICTOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PICTOMETRY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) CAUSED BY, ARISING OUT OF OR IN ANY WAY RELATED TO THE PICTOMETRY SOFTWARE EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). Page 19 of 27 City of NeArpo t Beach, CA —C 141002 -A 20131217 CMTA0054. 20130520 THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 6. TERMINATION. The foregoing shall not apply to the Customer's indemnity obligations or your (and your eligible users') infringement of intellectual property or misappropriation of proprietary data belonging to Pictometry or its third party suppliers. The Customer will be provided written notice in the event of a violation of this agreement and will have 10 days to respond to such notice. In the event the Customer has failed to cure that failure or breach within thirty (30) days after receipt of written notice from Pictometry, this License will terminate automatically. Upon the termination of this License, you will cease all use of the Pictometry Software and destroy all copies, full or partial, of the Proprietary Materials. 7. MISCELLANEOUS PROVISIONS. A. Restricted Rights. Pictometry Software acquired with United States Government funds or intended for use within or for any United States federal agency is provided with "Restricted Rights" as defined in DFARS 252.227 -7013, Rights in Technical Data and Computer Software and FAR 52.227 -14, Rights in Data - General, including Alternate III, as applicable. Pictometry must be notified in advance of any license grants to United States federal governmental entities. The Pictometry Software is developed for general use in a variety of applications and is not developed or intended for use in any inherently dangerous applications or applications that could lead to property damage, personal injury or death. If you use the Pictometry Software in such applications, then you will be responsible for taking all appropriate fail -safe, backup, redundancy, and other measures to ensure the safe use of the Pictometry Software in such applications, including but not limited to, in any nuclear, aviation, mass transit, public safety or medical applications. B. Foreign Trade Restrictions. The parties acknowledge that certain information, software technology, accompanying documentation and technical information may be subject to United States export control laws. You will not directly or indirectly export or re -export the Pictometry Software in violation of the Export Administration Regulations of the U.S. Department of Commerce. C. Governing Law. This License will be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflict of laws principles. D. Assignment You may not assign this License without Pictometry's prior written consent. Any assignment in violation of this License will lie null,, void and of no force and effect. For all purposes under this License, any merger, consolidation, spin -off, acquisition or change -in- control will be deemed an assignment. E. Partial Invalidity, Survival. If any provision of this License is held invalid or unenforceable by competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it will then appear. The total invalidity or unentorceability of any particular provision of this License will not affect its other provisions and this License will be construed in all respects as if the invalid or unenforceable provision were omitted. The provisions of this License that by their nature would survive its termination will survive indefinitely. F. Force Majeure. Neither party will be liable for any costs or damages due to nonperformance under this License arising out of any cause not within the reasonable control of such party and without its fault or negligence. Neither party will be liable for any delay or failure in the performance of its obligations under this License that directly results from any failure of the other party to perform its obligations as set forth in this License. G. Waiver. No waiver of a breach of any term of this License will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this License. No failure on the part of a party to exercise, and no delay in exercising any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend or discharge any part of this License or the rights or obligations of any party hereunder. Page 20 of 27 City of Newport Beach, CA —C 141002 -A 20131217 CMTA0054.20130520 H. Entire Agreement; Construction. This License contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings regarding that subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Pictometry. There are no representations, warranties, or obligations of any party not expressly contained herein. The headings in this License are for convenience only. They do not constitute a portion of this License and will not be used in any construction of it. [END OF SOFTWARE LICENSE AGREEMENT] Page 21 of 27 City of Newport Beach, CA — C741002 -A 20131217 CMT- 00034- 20130520 SECTION C NON - STANDARD TERMS AND CONDITIONS 1. Online Services Eligible Users: Notwithstanding anything in the Online Services General Terms and Conditions incorporated in this Agreement to the contrary, the terms 'Eligible User' and'Eligible Users' as defined in those Online Services General Terms and Conditions shall, for the purposes of this Agreement, also include each'Authorized User' as that tern is defined in the Delivered Content Terms and Conditions of Use incorporated in this Agreement. 2. Notwithstanding anything herein to the contrary, in the event that the funds due for subsequent projects and related deliverables under the terms and conditions of this Agreement are not lawfully appropriated, the following provisions shall apply: a. Customer shall provide Pictometry with written documentation of non - appropriation of funds from its funding source prior to commencement of a subsequent project; b. This Agreement shall remain in full force and effect, however commencement of the subsequent project shall be deemed postponed until such time as funds for the subsequent project have been appropriated and all other sums due under the terms and conditions of this Agreement have been paid by Customer. In the event that the postponement exceeds eighteen months, Pictometry reserves the right to terminate any and all obligations with respect to the postponed project and all subsequent projects included in this Agreement; and c. If Customer, or any party authorized under the terms and conditions of this Agreement to use the licensed products set forth in Section A, is in possession of licensed products for which Pictometry has not been fully compensated in accordance with the payment terms of this Agreement, Customer or such authorized party shall immediately cease use of those licensed products, purge those licensed products from all Customer and authorized party computers, and return those licensed products to Pictometry. 3. Pictometry will be providing at no additional charge, access to five (5) previously obtained image libraries in order to provide City of Newport Beach, California with historical imagery access via Connect (an approximate total value of $150,000). Imagery may or may not include 100% coverage of the viewing area and will be provided as is, 4. Customer shall pay Pictometry in accordance with the provisions of Section A. Pictometry's compensation for all Work performed in accordance with this Agreement, including shall not exceed One Hundred Thousand Two Hundred Fifty -Six Dollars and 501100 ($100,256.50) without prior written authorization from Customer. No billing rate changes shall be made during the term of this Agreement without the prior written approval of Customer. 5. The term of this Agreement shall commence on the Effective Date, and shall terminate 2 years from the date of image delivery, unless terminated earlier as set forth herein. 6. ht the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of five (5) calendar days, or if more than five (5) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) business days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 7. Strike from the Agreement, the last two sentences under the FEES; PAYMENT TERMS Section A on page seven, specifically, To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty (30) days following the invoice due date, such unpaid amounts shall accrue, and Customer shall pay, interest at the rate of 1.5% per month (or at the maximum rate allowed by law, if less). In addition, Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts amount due under this Agreement including, but not limited to, attorneys' fees and court costs' 8. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to Page 22 of 27 City of Newport Beach, CA — C141002 -A 20131217 CMT- W054- 20130524 this Agreement shall he adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 9. The terms and conditions of this License Agreement may be changed from time to time, upon written amendment to the License Agreement signed by both parties. 10. Delete "Online Services" Paragraph 6.8. 11. Delete "Online Services" Paragraph 6.9 12. LIMITATION OF LIABILITY: References set forth on page thirteen, section 6.3; page sixteen, section 5.3; page eighteen, section 5 of the Agreement shall all be deleted in its entirety and replaced with: Limitation of Liability. With respect to any other claims that the Customer may have or assert against Pictometry on any matter relating to the Online Services, Software, or Delivered Content, the total liability of Pictometry shall, in the aggregate, be limited to the total amount due under the Agreement. [END OF NON - STANDARD TERMS AND CONDITIONS] Page 23 of 27 City of Newport Beach, CA — C 141002 -A 201.351217 CMT- 00054 - 20130520 APPENDIX I PRODUCT SPECIFICATIONS AccuPlus® Premium Ortho- Mosaic Product Overview: Seamless ortho- mosaic produced from individual frames and tiled to customer's preferred tiling scheme. Acquisition: Flight plans will be prepared to capture image frames with nominal 60% forward overlap and nominal 30% sidelap in order to provide sufficient overlap for automatic aerial triangulation and mitigation of building lean in orthophotography produced. Source imagery will be acquired during times of optimal environmental conditions. Imagery will generally be captured when solar altitude is 30 degrees or greater and/or by using the most optimal four -hour window, except where capture season offers significantly longer window. Imagery will be acquired with ground free of snow cover and deciduous vegetation less than 30% of full bloom. Frames with clouds will be rejected and reflown. Any planned deviation from these conditions imposed by capture window constraints will be discussed with client prior to commencement of acquisition. Camera: Pictometry utilizes its USGS certified, custom designed mapping camera incorporating a Kodak sensor and custom designed photogrammetric lenses. The sensor is fully calibrated according to Pictometry's USGS approved calibration process. Pictometry's sensor provides a dynamic range of 12 bits per band, RGI3 (resampled to 8 bits during processing). Ortho- Rectification: Prior to the production of orthophotography, Pictometry will perform automatic aerial triangulation, utilizing the directly observed Exterior Orientations (EOs) and ground control points (GCPs), measured by a licensed surveyor, for the purpose of orienting the individual frames for creation of the final ortho imagery. In addition to the GCPs, sophisticated matching techniques will be employed to automatically create tie points for use in performing a bundle adjustment. Pictometry will utilize best available Digital Terrain Models, combined with the calibrated camera interior orientations, ground control points, and triangulated EOs to rectify the images. When the rectification requires a resampling of the source imagery, a cubic convolution method will be utilized. Mosaic: Global color balancing will be applied to all orthophotos to create homogeneous orthophotos within the project area. Local adjustments of brightness values, color and contrast will be performed if needed. There will be no obvious seam edge between two adjacent orthophotos. Mosaic will be created using automated seamline steering, with manual edits to eliminate feature misalignment caused by seamlines which pass thru features above the elevation surface. Feature alignment across seamlines will be 3 pixels or better. When possible, seamlines will be steered away from elevated features to improve orthophoto quality. Once the mosaic has been produced, the imagery will be tiled and named according to the customer provided (or Pictometry generated) schema for delivery. LiDAR 0.7 m This section describes the operational parameters of the ALTM Gemini that Pictometry intends to set for collection of data. Actual collection parameters may vary due to weather conditions and/or air traffic control (ATC) restrictions. Pictometry stipulates the final accuracy of the dataset regardless of actual capture parameters. Capture Parameters (nominal) — 0.7 m postings Flight Altitude: 760m/2500ft Point Spacing: 0.7m Point Density: 2 points per square meter Pulse Repetition Freq.: 70kHz Scan Angle ( + / -); 15.8 degrees Scan Frequency: 56Hz Swath Width: 430m /1400ft Overlap: 30% Page 24 of 27 City of Newport Beach, CA — C141002 -A 20131217 CMT- 00054 - 20130520 Vertical Accuracy: 9.25 cm RMSE, bare earth 18.2 cm NSSDA Vertical Accuracy (95% confidence) — bare earth Horizontal Accuracy: 25cm; RMSE Returns: Up to four per pulse Intensity records: Recorded for each return Coordinate System: Customer preferred system and units (must be specified and approved in advance of start of work). Filtering: Automated methods with manual review and clean up with the following minimum performance specifications: * 95% of outliers removed * 95% of vegetation removed * 98% of buildings removed Contour Interval Meets or exceeds FEMA requirements to generate contours at a 1' interval. NOTE: While Pictometry stipulates this accuracy, independent verification of this accuracy as well as additional independent reporting is usually required to qualify for FEMA funding. Pictometry offers these services through an independent subcontractor for additional cost. Deliverables: LiDAR Data • Tiled* LAS vl.2 files including Return Number and Intensity attribute for each return Duplicate points and 95% of outliers removed • Ground points classified via automated methods with manual review and clean up * 95% of vegetation features removed * 98% of buildings removed • Buildings and vegetation not classified separately • NOTE: LiDAR data deliverables will extend approximately 140m beyond the specified project area Raw GPS /INS data and laser range files with supporting information FGDC compliant metadata Estimated Data Sizes (at 0.7m point spacing): 20 -25GB per 100 square miles (approximate) DEM Bare Earth ESRI Terrain Pictometry will convert the Bare Earth classified data contained in the LAS files to ESRI Terrain data as a fundamental step toward deriving subsequent bare earth terrain products. Developing the data in this manner will significantly enhance the delivery of data to the Customer and provide maximum flexibility for future use, updates, and edits. Standard Hydrographic Breaklines (described below) will be incorporated into all terrain deliverables. Additional breaklines may be developed and incorporated into the terrain at any time. Digital Elevation Models (DEMs) The standard DEM deliverable will be assumed to have a 10 -foot grid cell size unless otherwise specified by the customer. Pictometry will also develop a Hillshade from the DEM for visualization and cartographic mapping purposes. Standard Hydrographic Breaklines Breaklines are linear features that describe a change in the smoothness or continuity of a surface. As part of the baseline effort to create a DEM, Pictometry will develop limited 3D breaklines for water feature boundaries and wide rivers and incorporate those into the ESRI Terrain data prior to generating any derived products. Hydrographic breaklines will be delineated using the LiDAR data with elevation values assigned from the LiDAR data, using best available aerial photography and the National Hydrography Dataset (NHD) as references. Water bodies will be defined for the purposes of this task as being larger than 5m across, or greater than one (1) acre. Breaklines delineating the edge of water will be created for all such water bodies. Breaklines will not be developed for streams less than 5m across, also referred to in NHD as 'single line streams'. Page 25 of 27 City of Newport Beach, CA — C 141002 -A 20131217 CMT- 00054- 20130520 The standard for water bodies in the USGS Specification is 100ft and two (2) acres respectively. 'Hydro - flattening', as defined in the USGS Specification, will be completed at a minimum on all water bodies meeting the USGS definition. This task is intended to meet or exceed the requirements for'Hydro- flattening' in the USGS Specification. For flat and level water bodies (ponds, lakes), a single elevation value will be assigned to the entire polygon and/or to every bank vertex. The entire water surface edge will be at orjust below the immediately surrounding terrain. For streams and rivers, breaklines indicating flat and level bank -to -bank conditions (perpendicular to the apparent flow centerline) will be created, with the gradient along the bank to follow the immediately surrounding terrain. Monotonicity will be enforced on breaklines meeting the USGS Specification. Stream and river breaklines delineating the edge of water will stop at road crossings (i.e., culvert locations). Bare earth LiDAR points that are within the design Nominal Point Spacing (NPS) of a breakline will be re- classified as 'Ignored Ground' once the breaklines have been completed. The design NPS of a LiDAR collection is typically between 1 and 2 meters, but maybe greater or less depending on the collection specifications of the project. The identification and prioritization of additional breaklines beyond those minimally described here represents a wide range of expectations and detail depending on specific project/customer needs and intended uses. Most customized uses of breaklines are appropriate for project specific purposes, such as hydraulic modeling, construction site design or transportation engineering. As such, additional breakline development options are offered below. Additional detailed breaklines can be developed and incorporated into the terrain data at any time. Deliverables: Collection -wide point data (bare earth only) in ESRI multi -point format Collection -wide Terrain Data Model (bare earth) in ArcGIS TERRAIN format Collection -wide Digital Elevation Model (bare earth) in ArcGIS GRID format Collection -wide polyline files in ESRI Polyline Feature Class format Collection -wide Hillshade of the Bare earth DEM in ArcGIS format Contours The range of available algorithms can result in significant differences in cartographic output quality for the generation of topographic contours. Some methods more accurately represent the point data, but result in a more angular and less cartographically pleasing output. Other methods will smooth the data to varying degrees but produce a much higher quality cartographic output. The customer will be given options, based on demo data, for having their collection area contours created from smoothed data or not - smoothed data. This task will result in vector (line) data and as such, tiling the data will be required because the vector Files can be quite large. The output tiling scheme will correspond to the LiDAR tiles unless the customer requests a different tiling scheme in advance. Final tiled vector data will be seamless and free of edge effects. Pictometry will establish elevation attributes to each contour line and identify 10, 20, and 50 ft. index contours unless otherwise specified by the Customer. Deliverables: Tiled 1 -foot or 2 -foot* contour files in ESRI Polyline Feature Class format. ( *NOTE: Contours will be created at maximum resolution supported by the collection as specified in Section A.) Page 26 of 27 City of Newport Beach, CA— C 141002 -A 20131217 CMT- 00054- 20130520