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24-037 Authorizing Execution of a User Agreement with Hennepin County for Nearmap Technology Information (2)MIT ReSTRITWIT M Ame-, A RESOLUTION AUTHORIZING EXECUTION OF A USER AGREEMENT WITH HENNEPIN COUNTY FOR NEARMAP TECHNOLOGY INFORMATION WHEREAS, the City of Shorewood ("City") desires access to the Nearmap technology information and mapping systems; and WHEREAS, the City Council reviewed the user agreement at a public meeting on May 28, 2024. NOW, THEREFORE, IT IS RESOLVED that the City Council of the City of Shorewood, Minnesota hereby authorizes the Mayor to sign the user agreement with Hennepin County for and on behalf of the City of Shorewood. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 28th day of May, 2024. ATTEST: one, City Clerk r La Vadie, Mayor Contract No. A2412318 HENNEPIN COUNTY USER AGREEMENT This Hennepin County User Agreement ("HCUA") is between Hennepin County, State of Minnesota, ("COUNTY") and City of Shorewood, ("USER"). WITNESSETH: WHEREAS, COUNTY and Nearmap US, Inc. ("Nearmap") executed AGREEMENT, Contract No. PR00002983, as amended, for the licensing of oblique images and related systems (the "Nearmap Agreement"); WHEREAS, Nearmap's hosted software system, except the Footprint module, (collectively the "System") collects, organizes, stores, displays and allows access to a collection of ortho images, oblique images, metadata, data layers, and other geographic or structural visualizations or embodiments (collectively "Delivered Content"); WHEREAS, by the terms of the Nearmap Agreement, Nearmap granted COUNTY the right to allow duly authorized political units or political subdivisions located totally or substantially within the boundaries of Hennepin County, including cities or townships, to access the System and Nearmap Delivered Content. NOW, THEREFORE, in consideration of the mutual undertakings and agreements set forth herein, COUNTY and USER agree as follows: 1. Term. This Agreement shall commence upon April 30, 2024 and shall continue for one (1) year unless terminated earlier in accordance with the provisions of this Agreement. Subject to the provisions herein and unless COUNTY otherwise notifies USER within thirty (30) days prior to the expiration of a term of this Agreement, this Agreement shall then automatically renew for another two (2) year term. However, in no event shall this Agreement continue beyond March 11, 2027. 2. Licenses. Subject to the provisions herein, COUNTY grants USER a limited, revocable, non-exclusive, royalty -free license to access and use the System and Delivered Content exclusively for the performance of USER's public responsibilities in the Contract No. A2412318 ordinary course of government business, and may not be resold for the purpose of direct commercial benefit or gain. The rights granted in this paragraph may be referred to as the "License". For clarification and not limitation, the License permits access or use by USER's employees and contracted personnel performing USER's public responsibilities in the ordinary course of USER's business (said employees or contracted personnel may be referred to as "Eligible Personnel" and, as applicable throughout this HCUA, the term "USER" shall include and apply to Eligible Personnel). However, subject to the foregoing, upon a third -party (e.g., public) request to USER for the right to inspect, copy or otherwise access Delivered Content pursuant to the MGDPA (as defined herein), USER shall 1) direct the request to the COUNTY Contract Administrator (identified herein); 2) explain to the requesting party that the request has been directed to the COUNTY and communicate appropriate COUNTY contact information; and 3) perform any other reasonable tasks necessary to expedite fulfillment of the request. USER is solely responsible for implementing the technology necessary to access the System, to retrieve Delivered Content and to use, control and safeguard the Delivered Content pursuant to the obligations set forth herein. Except as expressly set forth herein, USER shall acquire no right, title or interest in or to the System or Delivered Content. USER shall strictly comply with the following: (i) USER shall access the System and access, use, control and safeguard Delivered Content in compliance with the terms of this HCUA; (ii) USER shall only access the System and Delivered content by and through a computer workstation or server (i) that is owned or leased by USER; (ii) that is under the exclusive control of USER; and (iii) that is exclusively available for use by USER (an "Authorized System"); (iii) USER shall not share or distribute System authentication information, usernames or passwords ("Authentication") with any unauthorized third -party; (iv) USER shall secure and safeguard the System, Authentication and Delivered Content in USER's possession or control in the same manner that USER secures and safeguards its own critical or confidential systems, software, data, passwords or other information. If there is a -2- Contract No. A2412318 conflict between USER's security requirements and COUNTY's security requirements, COUNTY's security requirements shall prevail; (v) USER shall not access the Delivered Content by any means other than the System including but not limited to scraping, robots, wanderers, crawlers, spiders, etc (as those terms are commonly used and understood in the information technology industry); (vi) USER shall be solely responsible for accessing, using and otherwise supporting the System including but not limited to paying all costs, expenses and communication charges associated with the same; (vii) USER shall use, control and safeguard the Delivered Content in compliance with the terms of this HCUA and with applicable law including but not limited to the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13; (viii) Except as expressly provided herein, USER shall not use, disclose, sell, market, distribute or otherwise make available the Delivered Content during the term of this HCUA or at any time thereafter except as required by law or with COUNTY's express written consent; (ix) USER shall not allow third -party access to Delivered Content; (x) USER shall not create derivative works, including but not limited to any new work for USER, COUNTY, or any other party, that incorporates, embeds, or includes all or part of any Delivered Content, without COUNTY's express written consent; and (xi) USER shall not remove, delete, alter or otherwise modify any copyright messages on or associated with the System or Delivered Content, including but not limited to copyright notices from COUNTY or Nearmap. 3. Disclaimers and Limitations of Liability. COUNTY, BY AND THROUGH NEARMAP, IS PROVIDING THE SYSTEM AND DELIVERED CONTENT ON AN AS -IS BASIS WITH NO SUPPORT WHATSOEVER. THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR PARTICULAR USE, NO WARRANTY OF NON -INFRINGEMENT, NO -3- Contract No. A2412318 WARRANTY REGARDING THE USE OF THE INFORMATION OR THE RESULTS THEREOF AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, COUNTY DOES NOT WARRANT THE PERFORMANCE OF THE SYSTEM OR RELATED AND NECESSARY COMMUNICATIONS OR CONNECTIONS TO THE SYSTEM, THAT THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM IS FREE OF HARMFUL CODE. USER fully understands and agrees that (i) the System is subject to errors, omissions, delays or interruptions; and (ii) COUNTY, by and through Nearmap, may modify or change the System in a manner that may impact or restrict USER's access. In any such event, the COUNTY will not be liable for the cost of such changes, damages or other liability which may be sustained by USER. WITHOUT LIMITING THE FOREGOING, COUNTY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE DELIVERED CONTENT NOR DOES COUNTY WARRANT THAT DEFECTS IN THE SAME WILL BE CORRECTED. USER fully understands and agrees that (i) the Delivered Content is provided by third -parties, including but not limited to Nearmap; and (ii) COUNTY does not directly control and is not responsible for the Delivered Content. USER fully understands and agrees that the Delivered Content is subject to errors, omissions, delay or interruptions, including but not limited to (i) delays, errors or omissions in the receipt of the Delivered Content, (ii) changes, adjustments, corrections or modifications of the Delivered Content and (iii) that COUNTY may make modifications, changes and/or adjustments to the Delivered Content at any time and without notice to USER. At the point of initial contact with any Delivered Content provided to the public, USER shall include the disclaimer set forth in the preceding three paragraphs, in the same or substantially similar format with necessary adjustments for accuracy and applicability, including but not limited to defining "Delivered Content". IN NO EVENT SHALL COUNTY BE LIABLE FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT, LOSS OF BUSINESS OR ANY OTHER FINANCIAL LOSS OR ANY OTHER DAMAGES EVEN IF THE COUNTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COUNTY'S SOLE LIABILITY AND USER'S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES RELATED TO THIS HCUA OR FOR ANY BREACH OF THIS HCUA, INCLUDING BUT NOT LIMITED TO LIABILITY FOR SYSTEM OR DELIVERED CONTENT NONPERFORMANCE, ERRORS OR OMISSIONS, SHALL BE LIMITED TO Contract No. A2412318 RESTORING OR CORRECTING THE SYSTEM OR DELIVERED CONTENT TO THE EXTENT AND DEGREE COUNTY IS CAPABLE OF PERFORMING THE SAME AND AS IS REASONABLY POSSIBLE UNDER THE PERTINENT CIRCUMSTANCES. 4. Royalty Free License. The License is royalty free. COUNTY is not providing any implementation, maintenance, support or other services hereunder and, as such, USER shall not pay COUNTY any amount for services pursuant to this HCUA. 5. Compliance with Applicable Law and Data. USER and COUNTY shall comply with all applicable federal, state and local statutes, regulations, rules and ordinances currently in force or later enacted. Subject to the provisions set forth in Section 2 above, the parties, their officers, agents, owners, partners, employees, volunteers and subcontractors shall abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13 (MGDPA) and all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality. USER shall promptly notify COUNTY if USER becomes aware of any potential claims, or facts giving rise to such claims, under the MGDPA. 6. Termination. If COUNTY reasonably believes that USER is not complying with any terms of this HCUA, including but not limited to the license or related limitations, COUNTY may immediately terminate this HCUA and thereby terminate the License and USER's access to and use of the System and Delivered Content. Either party may terminate this HCUA without cause at any time by upon thirty (30) day written notice to the other party. Notwithstanding the term set forth herein, the parties expressly agree that COUNTY may (i) terminate the license granted herein for Nearmap Delivered Content; or (ii) terminate this HCUA upon the expiration or termination, for any reason, the Nearmap Agreement. 7. Liability. -5- Contract No. A2412318 USER agrees to defend, indemnify, and hold harmless the COUNTY, their officials, officers, agents, volunteers and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from USER's use of or access to the System or Delivered Content, from USER's failure to comply with the terms of this HCUA or from failure to perform any duties and obligations required by applicable law and/or this HCUA. As applicable, a party's liability shall be governed by the provisions of applicable law including but not limited to the Municipal Tort Claims Act, Minnesota Statutes Chapter 466, and other applicable law. The statutory limits of liability for some or all of the parties may not be added together or stacked to increase the maximum amount of liability for any party. This paragraph shall not be construed to bar legal remedies one party may have for the other party's failure to fulfill its obligations under this HCUA. Nothing in this HCUA constitutes a waiver by the USER or COUNTY of any statutory or common law defenses, immunities, or limits on liability. 8. Miscellaneous Provisions. The Hennepin County Geographic Information Systems Manager, or his/her designee, shall manage this HCUA on behalf of the COUNTY and perform the other duties expressly set forth herein. Except as directed by COUNTY, USER shall not use the term "Hennepin County", or any derivative thereof in USER's advertising, external facing communication and/or marketing, including but not limited to advertisements of any type or form, promotional ads/literature, client lists and/or any other form of outreach, without the written approval of the Hennepin County Public Affairs/Communications Department, or their designees. USER and COUNTY intend that this HCUA will not benefit or create any right or cause of action in or on behalf of any person or entity other than the parties. The laws of the state of Minnesota shall govern all questions and interpretations concerning the validity and construction of this HCUA and the legal relations between the parties and their performance. The remainder of this page is blank. Reviewed by the County Attorney's Office Date: COUNTY AUTHORIZATION COUNTY OF HENNEPIN STATE OF MINNESOTA 92 Contract No. A2412318 Hennepin County Administrator USER warrants that the person who executed this Agreement is authorized to do so on behalf of USER as required by applicable articles, bylaws, resolutions or ordinances.* USER By:r ° r Printed Name t Printed Title: 4 Date: *USER shall submit applicable documentation (articles, bylaws, resolutions or ordinances) that confirms the signatory's delegation of authority. This documentation shall be submitted at the time USER returns the Agreement to COUNTY. Documentation is not required for a sole proprietorship. -7-