VMT Tool User Agreement
The City of Culver City (“City”), through its independent consultant Fehr & Peers (“Consultant”), has developed the City of Culver City Vehicle Miles Traveled (VMT) Tool application to estimate project-specific daily household VMT per capita and daily work VMT per employee for land use development projects. The VMT Tool, has been provided to you as a user (“You” or “Your”) to assess VMT outcomes of land use projects within Culver City. The terms “City” and “Consultant” herein includes their respective officials, officers, employees, agents, affiliates, subconsultants, and representatives.
The City is pleased to be able to provide the VMT Tool to project applicants. The City believes the public is most effectively served when project applicants are provided access to the technical tools that inform the public review process of private and public land use investments. In using the VMT Tool, You agree to be bound by all terms and conditions set forth in this VMT Tool User Agreement (“Agreement”). Before making decisions using the information provided in the VMT Tool, You must contact City of Culver City staff to confirm the validity of the data provided.
VMT Tool Application for the City. The Consultant calibrated the VMT Tool’s parameters in 2019 to estimate travel patterns of locations in Culver City, and validated those outcomes against empirical data. However, this calibration process is limited to locations within Culver City, and VMT Tool users applying the VMT Tool outside of Culver City boundaries should not apply these estimates without further calibration and validation of travel patterns to verify the VMT Tool’s accuracy in estimating VMT in such other locations.
Limited License to Use. This Agreement gives You a limited, revocable, non-transferrable, non-assignable, and non-exclusive license (“License”) to use and execute a copy of the VMT Tool on a computer system owned, leased or otherwise controlled by You in Your own facilities, as set forth below, provided You do not use the VMT Tool in an unauthorized manner, and that You do not republish, copy, distribute, reverse-engineer, modify, decompile, disassemble, transfer, make derivative work from, or sell any part of the VMT Tool, or allow any other party to use the VMT Tool except with the City’s prior written consent; and provided that You have read, understand and agree to comply with the terms and conditions of this Agreement. Failure to comply with the terms of this Agreement shall automatically terminate Your License and Your right to use the VMT Tool.
License Term. Your License to use the VMT Tool shall be effective as of the date set forth below and, unless terminated in accordance with the above, or extended by written amendment to this Agreement, shall terminate on the earlier of the date that You are not making use of the VMT Tool or one year after the beginning of Your use of the VMT Tool.
Your Duty. You agree to provide City with comments and feedback should you believe that the VMT Tool is not functioning in accordance with your expectations, or not functioning as it should or as well as it should.
Ownership. You understand and acknowledge that the City owns the VMT Tool, and shall continue to own it through Your use of it, and that no transfer of ownership or any other intellectual property right of any kind is intended in allowing You to use the VMT Tool, except as expressly stated in this Agreement. You further understand and agree that City shall be the owner of any and all input, data, comments, feedback, and other information provided by You during the course of, or related to, Your use of the VMT Tool.
Warranty Disclaimer. Despite the efforts of the City and Consultant, some information in the VMT Tool may not be accurate. The VMT Tool, OUTPUTS AND ASSOCIATED DATA ARE PROVIDED “as is” WITHOUT WARRANTY OF ANY KIND, whether expressed, implied, statutory, or otherwise including but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
Limitation of Liability. It is understood that the VMT Tool is provided without charge. Neither the City nor Consultant shall be responsible or liable for any information derived from its use, or for any delays, inaccuracies, incompleteness, errors or omissions arising out of Your use of the VMT Tool or with respect to the material contained in the VMT Tool. In no event shall the City or Consultant be responsible to You or anyone else for, or have liability for any special, indirect, incidental or consequential damages (including, without limitation, damages for loss of business profits or changes to business costs) or lost data or downtime, however caused, and on any theory of liability from the use of, or the inability to use, the VMT Tool, whether the data, and/or formulas contained in the VMT Tool are provided by the City or Consultant, or another third party, even if the City or Consultant have been advised of the possibility of such damages.
Waiver and Release. By using the VMT Tool, You hereby waive and release all claims, responsibilities, liabilities, actions, damages, costs, and losses, known and unknown, against the City and Consultants for Your use of the VMT Tool. You understand and expressly agree that this release of claims is to be interpreted as broadly as possible, and is intended to encompass all known and unknown, foreseen as well as unforeseen or unforeseeable, claims which You may have against City or Consultant. You expressly waive the provisions of Section 1542 of the Civil Code of California, which states that:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Collection and Use of Information. You understand and acknowledge that City maintains a list of users accessing the VMT Tool, as well as any data or information provided by such users. The City will not intentionally disclose this information to any third party, unless required to do so under federal or state law, including, but not limited to, the California Public Records Act, or by a court order.
Governing Law. This Agreement and License shall be governed by the laws of the State of California without regard to their conflicts of law provisions.
Entire Agreement. This Agreement represents the entire Agreement between You and City regarding the subject matter hereof, and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to the subject matter. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement. This Agreement shall bind and inure to the benefit of the parties to this Agreement, and any subsequent successors and assigns.
Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.