14-026 Santa Clara Valley Transportation Authority for Countywide Ttansportation Model AGREEMENT
BETWEEN THE CITY OF CUPERTINO AND THE SANTA CLARA VALLEY
SPORTATION AUTHORITY FOR COUNTYWIDE TRANSPORTATION
/
1 (q MODEL
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is agreement ("Agreement") by and between the City of Cupertino, («CUPERTINO») and
the Santa Clara Valley Transportation Authority, a public transportation agency serving as the
designated congestion management agency for Santa Clara County ("VTA" (collectively, the
"Parties") shall become effective as of the date of execution by the last of the Parties to sign (the
"Effective Date").
WHEREAS, for use as an advance transportation planning tool, VTA has developed a
software forecasting model of the transportation system of the San Francisco Bay Area that is
centered on Santa Clara County but accounts for transportation impacts from neighboring
counties and regional commute sheds (the "VTA Model"); and
WHEREAS, CUPERTINO has need of a transportation forecasting model in order to
develop travel demand analysis for the Cupertino General Plan Update;
WHEREAS, CUPERTINO wishes to license from VTA the VTA Model and to purchase
from VTA the datasets necessary to develop the travel demand analysis for the Cupertino
General Plan Update; and ..
WHEREAS, CUPERTINO and VTA wish to set forth in this Agreement their respective
obligations and terms for the license of the VTA Model.
NOW, THEREFORE, CUPERTINO and VTA agree as follows:
1. Terms of License.
a. For the term provided in this Agreement, VTA grants to CUPERTINO a nonexclusive
and, except as specifically provided herein, nontransferable license to use the VTA
Model, which includes the following:
• Base year 2013 model and datasets;
• Forecast year 2020 and 2040 model and datasets;
• TP+/CUBE scripts;
• Stand-alone programs required to execute the models;
• . Traffic Analysis Zone (TAZ) boundary shape files; and
• Model documentation.
b. Within 30 days of receipt by VTA of the final Agreement signed by both parties, VTA
shall provide CUPERTINO with a working copy of the VTA Model and supporting VTA
Model documentation.
VTA Model Software Agreerrient Cupertino Final.docx
y,
c. CUPERTINO (including CUPERTINO staff and employees), and consultants under
contract with CUPERTINO (collectively the "CUPERTINO Users") are granted the right
to use and adapt the VTA Model solely for the purpose of developing and running a
travel demand analysis for the Cupertino General Plan Update (the "CUPERTINO
Model")
d. CUPERTINO shall not make electronic or other copies or reproduction of any part of the
VTA Model except for those purposes necessary to complete a travel demand analysis,
and will not distribute the VTA Model or any of its derivative components to any person,
department, agency or firm other than to CUPERTINO Users. The total allowable
number of copies being used concurrently shall not exceed 1 unless authorized in writing
by VTA. If any such distribution is made to the CUPERTINO Users, CUPERTINO shall
obtain a written agreement from each of those parties to abide by the conditions of this
License.
e. Except as provided herein, no copying, reproduction, publication, modification,
adaptation, reverse-engineering, distribution or transfer is allowed. The VTA Model
(including the software scripts, files, documentation, and datasets) is proprietary,
protected by copyright, and is the intellectual property of VTA. VTA retains all rights,
title, and interest in said intellectual property. CUPERTINO shall take affirmative steps
as necessary to prevent misappropriation or misuse of the VTA Model by CUPERTINO
Users. Failure to comply with the provisions of this Section may result in immediate.
termination of this Agreement, with no reimbursement to CUPERTINO of amounts
previously paid, and, additionally, shall subject CUPERTINO to any and all other
remedies, in law or equity, that may be available to VTA.
f. CUPERTINO will consider the VTA Model Consistency Guidelines when developing the
local model and prepare a local model consistency report for submission to VTA.
Changes made to the VTA Model by CUPERTINO or CUPERTINO consultant, in the
form of documentation, technical memoranda and/or electronic files, will be provided to
the VTA for incorporation into the archived VTA Model at the conclusion of model
development for the Cupertino General Plan update.
2. Set Up Services.
The initial license fee specified under Section 5 includes initial Model set-up and
implementation and 24 hours of internet/telephone support (the "Set-up and
Implementation Period").
3. Fees and Payment.
Within 30 days after the full execution of this agreement, CUPERTINO shall remit to
VTA $15,000 for the Initial License and Sett Up Services as follows:
AGREEMENT TASK/ITEM FEE PAYMENT DUE
SECTION DATE
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I Initial License $15,000 (one time fee) 30 days after
2 Set Up Services* Included in License Agreement
execution
* Per Section 2
4. Limited Warranty and Representation.
a. The VTA Model is in a constant state of update and improvement. CUPERTINO
acknowledges this state and therefore accepts the VTA Model "as is" at the time of
delivery to CUPERTINO..
TO THE EXTENT PERMITTED BY APPLICABLE LAW,VTA MAKES NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE,AND DISCLAIMS ANY LIABILITY FOR THE VTA MODEL,
INCLUDING BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
However, the VTA will ensure that a fully operational version of the most recent VTA
Model as of the date of this Agreement will be provided to CUPERTINO. VTA will
provide output files for CUPERTINO use to verify that the VTA Model results can be
replicated on CUPERTINO computers.
b. VTA warrants that it is the sole owner of the VTA Model and has all proprietary rights
therein. The VTA Model consists of scripts written in TP+/Cube together with data.
CUPERTINO acknowledges that it is aware that it must purchase'or otherwise acquire
the TP+/Cube software from Citilabs the right to use the correct version of TP+/Cube or
related software to run the VTA Model. VTA is under no obligation to supply TP+/Cube
or other software or hardware necessary to mn the VTA Model..
c. The VTA Model follows industry-accepted standards.foraccuracy. However, VTA
assumes no liability for its accuracy or for the use of the VTA Model, its networks, and
datasets by the CUPERTINO.
5. Limitation of Liability.
a. EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER
SECTION 6 OF THIS AGREEMENT, Ilv NO EVENT SHALL EITHER PARTY'S
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT Olt UNDER ANY OTHER THEORY OF
LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY
CUPERTINO TO VTA HEREUNDER. THE FOREGOING SHALL NOT LIMIT
CUPERTINO'S PAYMENT OBLIGATIONS UNDER THE "FEES AND
PAYMENT" SECTION ABOVE.
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b. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR
PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT,
TORT OR UNDER ANY OTHER THEORY OF LIABILITY,AND WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE
EXTENT PROHIBITED BY APPLICABLE LAW.
6. Indemnification.
a. VTA shall indemnity, defend, and hold CUPERTINO harmless against any claim,
demand, suit, or proceeding ("Claim") made or brought against CUPERTINO by a third
party alleging (i) that the use of the VTA Model as permitted hereunder infringes or
misappropriates the intellectual property :rights of a third party, and shall indemnify
CUPERTINO for any damages finally awarded against, and for reasonable attorney's
fees incurred by CUPERTINO in connection with any such Claim; provided that
CUPERTINO (a) promptly gives VTA written notice of the Claim, (b) gives VTA sole
control of the defense and settlement of the Claim (provided that VTA may not settle or
defend any Claim unless it unconditionally releases CUPERTINO of all liability), and (c)
provides to VTA all reasonable assistance, at CUPERTINO's expense.
b. CUPERTINO shall indemnify, defend, and hold VTA harmless against any Claim,
whether arising in tort or contract, brought by any third party for injury to or death of any
person or persons, or for loss of or damage to property arising out of or in any way
relating to use of the VTA Model or the CUPERTINO Model by CUPERTINO or
consultants under contract with CUPERTINO, excepting only those Claims caused by the
gross negligence,or willful misconduct of VTA.
7. Term of Agreement.
This Agreement shall become effective won full execution of_the_Agr-cement and shall
remain in effect through the Set-up and Implementation Period. Cl
PERTINO-will retain
access to the CUPERTINO Model as then provided with no further support from the
VTA after completion of the Set-up and Implementation Period.
8. Intentionally Omitted
9. Parties' Representatives.
The General Manager of VTA or her designee is hereby made the primary contact and
legal representative of VTA for all purposes under this Agreement. For purposes of this
agreement VTA's primary contact and legal representative shall be John Ristow, Chief,
Congestion Management Agency, who can be reached at 408-321-5713, unless VTA
otherwise notifies CUPERTINO in writing. The City Manager of CUPERTINO or his/
her designee is hereby made the primary contact and legal representative of
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CUPERTINO for all purposes under this Agreement. For purposes of this agreement
CUPERTINO's primary contact and legal representative shall be Aarti Shrivastava,
Director of Community Development, who can be reached at 408-777-3308, unless
CUPERTINO otherwise notifies VTA in writing.
10. No Waiver.
The failure of either Party to insist upon the strict performance of any of the terms,
covenant and conditions of this Agreement shall not be deemed a waiver of any right or
remedy that either Party may have, and shall not be deemed a waiver of their right to
require strict performance of all of the term:3, covenants, and conditions thereafter.
11. Notice.
Any notice required to be given by either Party, or which either party may wish to give,
shall be in writing and served either by personal delivery or sent by certified or registered
mail, postage prepaid, addressed as follows::
To VTA: Santa Clara Valley Transportation Authority
John H. Ristow, Chief, Congestion Management Agency
3331 North First Street, Bldg. B-2
San Jose, CA 95134-1906
To CUPERTINO: City of Cupertino
George Schroeder, Associate Planner
10')00 Torre Ave.
Cupertino, CA 95014
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3)
days after deposit in the United States mail.
12. Dispute Resolution.
If a question arises regarding interpretation of this Agreement or its performance, or the
alleged failure of a Party to perform, thy,- Party raising the question or making the
allegation shall give written notice thereof to the other Party. The Parties shall promptly
meet in an effort to resolve the issues raised. If the Parties fail to resolve the issues
raised, alternative forms of dispute resolution, including mediation or binding arbitration,
may be pursued by mutual agreement. It is the intent of the Parties to the extent possible
that litigation be avoided as a method of dispute resolution.
13. Entire Agreement.
This Agreement constitutes the entire Agreement between the Parties pertaining to the
subject matter contained therein and supersedes all prior or contemporaneous agreements,
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representations and understandings of the Parties relative thereto.
14. Amendments.
Future amendments to this Agreement shall be processed by mutual written agreement of
the Parties. Whenever possible, notice of a desire to amend this Agreement shall be
provided ninety (90) calendar days prior to the desired effective date of such amendment.
15. Warranty of Authority to Execute Agreement.
Each Party to this Agreement represents and warrants that each person whose signature
appears hereon has been duly authorized and has the full authority to execute this
Agreement on behalf of the entity that is a Party to this Agreement.
16. Severability
If any term, covenant, condition or provision of this Agreement, or the application thereof
to any person or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions and provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
17. Governing Law.
This Agreement shall be construed and its performance enforced under California law.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
below.
Santa Clara Valley
Transportation Authori City of Cupertino
By: By:
Nuria I. Fernandez, General Manager Aa i Shrivastava, Community Development
Director
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Date Date
APPROVED AS TO FO APPROVED AS TO FORM:
NUJ
ictor . Wed a ardo, Sr. Assistant Counsel Carol Korade, City Attorney
VT G 7eral Counsel
3111
Date Date
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EXPENDITURE DISTRIBUTION ATTEST-
ACCOUNT NUMBER AMOUNT > C.La4-
110-7302-9328 $15,000.00 Grace Schmidt, City Clerk
PO # 2 4—Date
/ Date
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