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HomeMy WebLinkAboutC25-140 CSU Colorado Natural Heritage Program CNHPDATA LICENSE AND USE AGREEMENT BETWEEN Colorado State University – Colorado Natural Heritage Program AND Eagle County Government The Board of Governors of the Colorado State University System, acting by and through Colorado State University for the use and benefit of the Colorado Natural Heritage Program (CNHP) agrees to provide Data to Kallie Rand, Eagle County Government (LICENSEE or Eagle County) subject to the terms and conditions set forth herein. CNHP agrees to provide sensitive element occurrence data and models to the Licensee. This license will also cover any additional data requests for a period of five years. 1. DEFINITIONS: Internal Use. Use of Data for analysis, summarization, display, or other use of the data by a party to this Agreement that does not result in the production of a product for External Use. External Use. Use of Data in any publication, report, press release, or other hard-copy, machine-readable material, or electronic product provided to the general public or to any corporation, organization, or other entity or person not a party to this Agreement. BIOTICS. The proprietary Biodiversity and Tracking Conservation System in which CNHP Data, including Element Occurrences and Potential Conservation Areas, are maintained. Data maintained in the CNHP’s BIOTICS database are an integral part of ongoing research at Colorado State University and reflect the observations of many scientists, institutions and our current state of knowledge. CNHP BIOTICS is the aggregation of all data developed and maintained using natural heritage methodology by CNHP and cooperating organizations. These data are acquired from various sources, with vary levels of accuracy, and are continually being updated and revised. CNHP BIOTICS includes species and vegetation data, including various types of information from range-wide status to specific locations. Data. Any information provided under the Data License and Use Agreement regardless of format (i.e., electronic, paper, or verbal). Element. A global or state rare species, subspecies, or unique natural community tracked by the CNHP. Element Occurrence (EO). An Element Occurrence represents a location in which an element is, or was, present. An EO has continued (or historic) presence and/or regular recurrence at a given location and has practical conservation value. Precision. Precision refers to the accuracy of the mapped location of an EO. General (G) precision is assigned to EO records whose locational uncertainty exceeds approximately 1 mile. Minutes (M) precision is assigned to EOs mappable within approximately 1 mile in any direction. Seconds (S) precision is assigned to EOs mappable to within approximately 3 arc seconds of latitude and longitude. Sensitive EO. EOs may be marked sensitive either due to collection value, susceptibility to disturbance, federal status, or other factors (record displays a “Y” in the CNHPSENS field) or due to land status, i.e., private landowner request (record displays a “Y” in the DATASENS field). Docusign Envelope ID: 5783E70E-05A5-4359-9791-1543AA133D2F Generalized EO. Please refer to the “CNHP Methodology for Generalizing Element Occurrence Data” document in the Supporting Documents directory for a detailed explanation. Level 1 Data. Dataset of Natural Heritage Data which contains information on both non-sensitive and sensitive species, communities provided for INTERNAL USE ONLY. These data are not to be redistributed. Level 1 Data are not generalized. Level 1 dataset includes the following items and file formats: a. EO Spatial Data (Arcview SHP) – Non-sensitive and sensitive EOs. Data contain full details maintained in BIOTICS and are provided as precisely as known or “as-is” from BIOTICS (data are not “fuzzed” or generalized). b. EO Transcription (PDF) – For each EOs provided in the spatial data, reports which contain full details maintained in BIOTICS. c. PCA Spatial Data (Arcview SHP) – All PCAs (non-sensitive and sensitive). d. PCA Transcription (PDF) – PCA Reports for all PCAs provided in the spatial data. PCA reports contain full details maintained in BIOTICS. e. NCA Spatial Data (ArcView SHP) – All NCAs. f. NCA Transcription (PDF) – NCA Reports for all NCAs provided in the spatial data. g. Observation Data (ArcView SHP) – All Observations Database records. h. Metadata (MET) – FGDC-compliant metadata for EOs, PCAs, NCAs, and Observations. Level 2 Data. Dataset of Natural Heritage Data which contains both non-sensitive and sensitive species, communities provided for INTERNAL USE ONLY. These data are not to be redistributed. Level 2 Data are generalized data provided private lands. Level 2 Data are generalized as follows. Level 2 dataset includes the following items and file formats: a. Special Management Areas – Roadside zones based on the distribution of selected sensitive species within 50 meters/54 yards of roads and a recommended avoidance buffer of 200 meters/218 yards. The 200 meter/218 yard buffer reduces dust transport, weed invasion, herbicide damage, magnesium chloride damage, and other unintended impacts, such as disturbance of hydrological setting. It also reduces impact to pollinators and their habitat. Special Management Areas (including maps and data tables) are presented in Appendix One if a data sharing agreement has been signed with the Colorado Natural Heritage Program. These data are considered sensitive and should only be for internal use. b. EO Spatial Data (Arcview SHP) – General EO records are provided “as-is.” Minutes and seconds EO records are generalized to 1 sq. mile for non-sensitive EOs and to 4 sq. miles for sensitive EOs. c. EO Transcription (PDF) – Data contain full details maintained in BIOTICS except, Lat/Long, Directions, Management Comments, and Protection Comments. Resolution of location information for EOs differs based on EO sensitivity: location of non-sensitive EOs reported to PLSS section level (1 sq. mile); location of sensitive EOs reported to PLSS range level (36 sq. miles). Level 3 Data. Dataset of Natural Heritage Data which contains both non-sensitive and sensitive species, communities provided for EXTERNAL USE and mapping display. No transcription reports are provided with Level 3 Data. Level 3 dataset includes the following items and file formats: a. EO Spatial Data (ArcView SHP) – For Records with general mapping precision are provided “as-is.” Records with seconds and minutes mapping precision are generalized based on sensitivity. Non-sensitive EOs are generalized to 1 sq. mile blocks and sensitive EOs are generalized to 9 sq. mile Docusign Envelope ID: 5783E70E-05A5-4359-9791-1543AA133D2F blocks. b. EO Summary Report (PDF) - for all EOs provided in spatial data. c. PCA Spatial Data (Arcview SHP) – Non-sensitive PCAs only. d. Network of Conservation Areas (NCA) Spatial Data (ArcView SHP) – All NCAs. 2. TERM: The term of the Data license granted herein and the period of performance of this Agreement is from the effective date of signature by both parties through five (5) calendar years from date of signing unless this Agreement is sooner terminated or extended by mutual written agreement of the Parties. Upon termination of this Agreement, all rights granted LICENSEE herein shall immediately expire and LICENSEE shall: (i) cease use of the Data and certify that all copies of these Data have been destroyed or return all copies of these Data to CNHP; or (ii) complete arrangements with CNHP to receive a comprehensive update to these Data. The arrangements shall include an updated license that will conform to the CNHP Data distribution policies in effect at the time of signing. 3. LICENSE FEE; FINANCE ADMINISTRATION AND PAYMENT: Data requests that require payment will be billed in accordance with established contracts and invoiced through CSU. 4. CONFIDENTIALITY AND NON-DISCLOSURE REQUIREMENTS: LICENSEE acknowledges that Level 1 Data provided by CNHP (described above), are considered sensitive and confidential for management and conservation reasons. Therefore, LICENSEE agrees to strictly adhere to the following requirements with respect to Data being provided by CNHP: a. Level 1 Data are being provided for internal use only. LICENSEE will undertake appropriate measures to ensure that these Data will be accessible only to the LICENSEE and to no other entity, nor will these Data be made available for public viewing without prior approval by CNHP. b. Level 3 Data are being provided for purposes of external CNHP data display, i.e., any printed or electronic items (e.g., maps, tables, charts, graphs, etc.) containing CNHP Data that the licensees wish to publish for public viewing. c. All CNHP Data are copyrighted and ownership of the Data remains with CNHP. The licensees are being granted use of the Data for the purposes described herein. No interest whatsoever is conveyed to the LICENSEE in right, title, and interest of the Data, the information, and all copyrights (and renewals thereof) secured herein. All publication, dissemination and other rights in the Data are reserved to CSU/CNHP in all languages, formats, and throughout the world for the sole and exclusive use of any other disposition by CNHP or their assignees or grantees at any time and from time to time without any obligation or liability to any Data user. d. The Data will be used for the requested purposes described above and for no other purpose. e. The Data may not be transcribed, reproduced in any manner, nor redistributed to any third party, unless authorized in writing by CNHP. Requests for the Data from any other entity will be referred to CNHP. f. Requests involving biological interpretation or use of the Data beyond the stated purposes will be referred to CNHP. g. LICENSEE will provide acknowledgement for CNHP Data where appropriate. The correct citation for CNHP Data is as follows: Colorado Natural Heritage Program. 2015. Biodiversity Tracking and Conservation System. Colorado State University, Ft. Collins, CO. Data exported February 2015. Docusign Envelope ID: 5783E70E-05A5-4359-9791-1543AA133D2F h. In the event that the LICENSEE receives a demand for disclosure pursuant to applicable law (including, but not limited to, the Freedom of Information Act (Public Law 89-554, 80 Stat. 383; Amended 1996, 2002, 2007), the Colorado Public Records Act (C.R.S. secs. 24-72-201, et seq.), as now or hereafter amended), or any lawful order, subpoena, or other process requiring disclosure of the Data, the LICENSEE shall immediately notify CNHP in writing in order to afford CNHP a reasonable opportunity to initiate legal action to enjoin, restrict, or otherwise oppose the disclosure in a court of competent jurisdiction. Such action shall be at the expense of CNHP, but the LICENSEE shall reasonably cooperate with CNHP in seeking protection of the Data. 5. NOTICE REGARDING INFRINGEMENT: LICENSEE shall promptly notify CNHP of any third party that it reasonably believes to be infringing any right of CNHP, and Licensee shall use reasonable efforts to provide to CNHP any information LICENSEE has in support of such belief. 6. DISCLAIMER OF WARRANTIES: LICENSEE acknowledges that CNHP Data require a certain degree of biological expertise for proper analysis, interpretation, and application. Care should be taken in interpreting these Data. These Data are dependent on the research and observations of many scientists and institutions, and reflect our current state of knowledge. Data are acquired from various sources, with varying levels of accuracy, and are continually updated and revised. They are provided for planning purposes only. Many areas have never been surveyed, however, and the absence of Data in any particular geographic area does not necessarily mean that species or ecological communities of concern are not present. These Data should not be regarded as a substitute for on-site surveys required for environmental assessments. Absence of evidence is NOT evidence of absence. Absence of any Data does not mean that other resources of special concern do not occur, but rather CNHP files do not currently contain information to document this presence. If ground-disturbing activities are proposed on a site, CNHP should be contacted for a site-specific review of the project area. LICENSEE acknowledges that the Data and other Confidential Information provided to LICENSEE by CNHP are provided on an as-is basis, as-available basis without warranties of any kind, expressed or implied, INCLUDING (BUT NOT LIMITED TO) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Although CNHP maintains high standards of Data quality control, CNHP, Colorado State University, and the State of Colorado further expressly disclaim any warranty that the Data are error-free or current as of the date supplied. For more information, see the Colorado Natural Heritage Program website at: www.cnhp.colostate.edu. 7. CHOICE OF LAW: This Agreement shall be interpreted, construed, and governed by the laws of the State of Colorado, and such laws of the United States as may be applicable. 8. MODIFICATION AND AMENDMENT OF AGREEMENT: Modifications to this Agreement may be proposed by either party at any time during the period of performance and shall become effective upon written approval by both parties. 9. PERIOD OF PERFORMANCE: The term of the Data license granted herein and the period of performance of this Agreement is from the effective date of signature by both parties through five (5) calendar years from date of signing unless this Agreement is sooner terminated or extended by mutual written agreement of the Parties. Upon termination of this Agreement, all rights granted LICENSEE herein shall immediately expire and LICENSEE shall: A. cease use of the Data and certify that all copies of these Data have been destroyed or return all copies of these Data to CNHP; or B. complete arrangements with CNHP to receive a comprehensive update to these Data. The arrangements shall include an updated license that will conform to the CNHP Data distribution policies in effect at the time of signing. Docusign Envelope ID: 5783E70E-05A5-4359-9791-1543AA133D2F 10. PROHIBITED TERMS: Nothing in this Agreement shall be construed as a waiver of any provision of CRS §24-106-109. Any term included in this Agreement that requires the Department of Agriculture to indemnify or hold the Board of Governors of the Colorado State University System harmless; requires the Department of Agriculture to agree to binding arbitration; limits Board of Governors of the Colorado State University System’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with that statute in any way shall be void ab initio. REPRESENTATIVES; NOTICE For purposes of this Agreement, the persons named below are designated the representatives of the parties. All notice required to be given by registered via email and/or certified mail, return receipt requested, to the representative named below. The parties may designate in writing a new or substitute representative: CNHP: Michael D. Menefee Environmental Review Coordinator Colorado Natural Heritage Program Colorado State University 1474 Campus Delivery Fort Collins, CO 80523-1474 P: (970) 491-7331 Michael.Menefee@ColoState.edu In Witness Whereof, CNHP and the licensees have executed this data license and use agreement as of the last date signed below: By: Jeff Shroll Date County Manager Eagle County Government By: __________________________________ A. Alonso Aguirre, Dean Date Warner College of Natural Resources Colorado State University Eagle County: Kallie Rand Natural Resources Manager Eagle County Government P.O. Box 179 Eagle, CO 81631 Eagle, CO 81631 P: 970-328-3553 kallie.rand@eaglecounty.us Docusign Envelope ID: 5783E70E-05A5-4359-9791-1543AA133D2F 4/11/2025 4/11/2025