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HomeMy WebLinkAbout2012-02-27 12-099 ORDERCOUNCIL ACTION Item No. 12 099 Date: February 27, 2012 Item/Subject: ORDER, Authorize City Manager to Extend ESRI License Agreement for One Additional Year Responsible Department: Public Services Commentary: Since 2007, the City's GIS program has been built using ESRI software. Our current license and service agreement expires at the end of this month. ERSI is asking for a three year commitment from the City at the current rate of $35,000 per year. Staff recommends that the City Council authorize the City Manager to extend our current agreement with ESRI three more years. Manager's Comments: Arthur B. Morgan, P.E. Department Head "r'ACity Manager Associated Information: Memorandum, Council Order, and Agreement Budget Approval: Finance Director Legal Approval: Z41W City Solicitor Introduced for X Passage First Reading Referral Assigned to Councilor - Sprague CITY OF BANGOR 12 099 February 27, 2012 (TITLE.) ORDER, Authorize City Manager to Extend SSRI license Agreement for One Additional Year WHEREAS, The City is currently mapping and inputting data into our GIS system, which is prodded by ESRI; WHEREAS, the City's current license and service agreement expires at the end of this month; and WHEREAS, the City would be well served by continuing to utilize ESRI operating system as its GIS Software. WHEREAS, the City would extend the ESRI License Agreement for an additional three years. NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT Catherine Conlow, City Manger of the City of Bangor, is hereby authorized, on behalf of the City of Bangor, to execute a three year extension of the City's license and service agreement with ESRI at the current rate of $35,000 per year. IN CITY COUNCIL February 27, 2012 MOTION MADE AND SECONDED FOR PASSAGE MOTION MADE AND SECONDED TO AMEND BY SUBSTITUTION PASSED MOTION MADE AND SECONDED FOR PASSAGE AS AMENDED PASSED AS AMENDED INTERIM CITY LERK VWLE,) AUTHORIZE CITY MANAGER TO EXTEND ESRI LICENSE AGREEMENT FOR ONE ADDITIONAL YEAR Assigned to Councilor /� 12 099 #Pesr*i" January 27, 2012 Mr. Sean Gambrel CITY OF BANGOR 73 HARLOW ST BANGOR, ME 04401 Dear Sean, The Esri Small Municipal and County Government Enterprise License Agreement (ELA) is a three-year agreement that will grant your organization access to Esri® term license software on an unlimited basis including maintenance on all software offered through the ELA for the term of the agreement. The ELA will be effective on the date executed and will require a firm, three-year commitment. Based on Esri's work with several organizations similar to yours, we know there is significant potential to apply geographic information system (GIS) technology in many operational and technical areas within your organization. For this reason, we believe that your organization will greatly benefit from an enterprise license agreement. An ELA will provide your organization with numerous benefits including: ■ A lower cost per unit for licensed software • Substantially reduced administrative and procurement expenses ■ Maintenance on all Esri software deployed under this agreement • Complete flexibility to deploy software products when and where needed The following business terms and conditions will apply: • All current departments, employees, and in-house contractors of the organization will be eligible to use the software and services included in the ELA. ■ If your organization wishes to acquire and/or maintain any Esri software during the term of the agreement that is not included in the ELA, it may do so separately at the Esri pricing that is generally available for your organization for software and maintenance. ■ The organization will establish a single point of contact for orders and deliveries and will be responsible for redistribution to eligible users. • The organization will establish a Tier 1 support center to field calls from internal users of Esri software. The organization may designate individuals as specified in the ELA who may directly contact Esri for Tier 2 technical support. ■ The organization will provide an annual report of installed Esri software to Esri. 380 New York Street 909 793 2853 Redlands, California 92373-8700 usn infofesri.com esn.com 12 499 ■ Esri software and updates that the organization is licensed to use will be automatically available for downloading. • The organization will act as an Esri reference site and will permit Esri to publicize its use of Esri software and services. ■ The fee and benefits offered in this ELA proposal are contingent upon your acceptance of Esri's Small Municipal and County Government ELA terms and conditions. • Licenses are valid for the term of the ELA This program offer is valid for 90 days. To complete the agreement within this time frame, please contact me within the next seven days to work through any questions or concerns you may have. To expedite your acceptance of this ELA offer: Sign and return the signature page of the ELA with a Purchase Order or issue a Purchase Order that references this ELA Quotation and includes the following statement on the face of the Purchase Order: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY GOVERNMENT ELA, AND ADDITIONAL TERMS AND CONDITIONS IN THIS PURCHASE ORDER WILL NOT APPLY." Have it signed by an authorized representative of the organization. On the first page of the ELA, identify the central point of contact/agreement administrator. The agreement administrator is the party that will be the contact for management of the software, administration issues, and general operations. Information should include name, title (if applicable), address, phone number, and e-mail address. 3. In the purchase order, identify the "Ship to" and "Bill to" information for your organization. 4. Send the purchase order and agreement to the address, email or fax noted below: Esri Attn: Customer Service SG-ELA 380 New York Street Redlands, CA 92373-8100 e-mail: service@esri.com fax documents to: 909-307-3083 I appreciate the opportunity to present you with this proposal, and I believe it will bring great benefits to your organization. Thank you very much for your consideration. Best Regards, Joshua Williams Small Government ELA Material Qty Description 12 099 46 1* erne Quotation # 20399526 35,000.00 Date: January 27, 2012 ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. Customer # 377752 Contract # 55 Ferncroft Rd Ste 300 START DATE: 2/5/2012 Danvers, MA 01923 CITY OF BANGOR Phone: (978) 777-4543 Fax: (978) 777-8476 ENGINEERING DEPT DUNS Number: 06-313.4175 CAGE Code: OAMS3 73 HARLOW ST To expedite your order, please attach a copy of BANGOR, ME 04401 this quotation to your purchase order. ATTENTION: Sean Gambrel Quote is valid from: 01/27/2092 To: 04/28/2012 PHONE: (207) 992-4245 FAX: 207-942-8213 Material Qty Description Unit Price Total 110036 1 YEAR 1 - Populations of 25,001 to 50,000 Small Government Term 35,000.00 35,000.00 Enterprise License Agreement START DATE: 2/5/2012 END DATE: 2/4/2013 110036 f YEAR 2 - Populations of 25,001 to 50,000 Small Government Term 35,000.00 35,000.00 Enterprise License Agreement START DATE: 2/5/2013 END DATE: 2/4/2014 110036 1 YEAR 3 - Populations of 25,001 to 50,000 Small Government Term 35,000.00 35,000.00 Enterprise License Agreement START DATE: 2/5/2014 END DATE: 2/4/2015 Item Total: 105,000.00 Subtotal: 105,000.00 Sales Tax: 0,00 Estimated Shipping & Handling(2 Day Delivery) : 0.00 Contract Pricing Adjust: 0,00 Total: $105,000.00 Participation in the Esri Small Government ELA Program is subject to the attached Esd ELA Terms & Conditions, including the following termination provision: ARTICLE 5 -TERM AND TERMINATION AND EXPIRATION 5.2 Termination for Lack of Funds. Either party may terminate this ELA for Lack of Funds. Lack of Funds is the inability of Licensee to secure appropriation of funds through the legislative or governing body's approval process for annual payments due. Please Mediate on your purchase order it this purchase is handed through the American Recovery and Reinvestment Act, and whether Esd Is a Prime Recipdent, Sub -recipient, or Vendor for reporting purposes. For questions contact: Joshua Williams Email: jwilliams9kesri.com Phone: (978) 777-4543 x8425 Acceptance of this quotation is limited to the Esri License Agreement and the Quotation Terms and Conditlons This Quotation is made in confidence for you review. It may not be disclosed to third parties, except as required by law. ►f sending remittance, please address to: Esri, File No. 54630, Los Angeles, Ca 90074-4630 WILLIAM This offer is limited to the terms and conditions incorporated and attached herein. 12 499 QSMALL MUNICIPAL AND COUNTY '' V ENTERPRISE LICENSE AGREEMENT Esri, 380 New York St., Redlands, CA 92373.8100 USA - TEL 909-793-2853 - FAX 909.793-5953 This Small Municipal and County Enterprise License Agreement ("ELA") is by and between the organization identified in the ELA Quotation ("Licensee") and Environmental Systems Research Institute, Inc. ("Esri"), with offices at 380 New York Street, Redlands, California 92373-8100. Unless otherwise agreed to by the parties, the Effective Date of this ELA is the date of the signature below or, If no date is provided of Licensee's hts to use specific Esri Software, Data, Web Services, and the signature, the date of Esri's tDocumentation for Purchase limitted, fi ednperiod beging this ELA. ning EmLA ihe Effective Darants Licensee te and pin rovides tailored maintenance subject to payment of fees and the terms of this ELA. This ELA Incorporates the ELA Quotation by reference and comprises (i) this signature page, (11) the ELA Terms and Conditions, (iii) Exhibit 1—Scope of Use (E300), (iv) Exhibit 2—Training Addendum (E207SET), and (v) the ELA Quotation, which together constitute the sole and entire agreement of the parties as to the subject matter set forth herein. Should there be any conflict between the terms and conditions of the documents that comprise the ELA, the order of precedence for the documents shall be as follows: (i) this signature page. (ii) the ELA Terms and Conditions, (iii) Exhibit 1 --,Scope of Use (E300), (iv) Exhibit 2—Training Addendum (E207SET), and (v) the ELA Quotation. In the event Licensee orders training courses, the terms and conditions of the Training Addendum will take precedence over the provision of the ELA with respect to the training courses. Licensee agrees that additional terms and conditions in any Licensee Purchase Order or addendum will not apply, and the terms of this ELA will govern. ENTERPRISE SOFTWARE SCHEDULE Unlimited Quantitles Desktop Software and Extensions Arcinfo ArcEditor ArcView ArCGIS Desktop Extensions: 3D Analyst, Spatial Analyst, ArcGIS Network Analyst, Geostatistical Analyst, ArcGIS ArcScan, ArcGIS Data Reviewer, ArcGIS Publisher, Maplex for ArcGIS, ArcGIS Schematics, and ArcGIS Workflow Manager Server Software and Extensions ArcGIS Server Workgroup or Enterprise (Advanced, Standard, and Basic) ArclMS ArcGIS Server Extensions: 3D, Schematics. Geostatistical, ArcGIS Workflow Manager, Network, Image, and Spatial Developer ArcGIS Engine Runtime ArcGIS Engine Runtime Extensions: 3D, Spatial, Geodstabase Update, Network, Schematics, and Maplex Limited Quantities One (1) Annual Subscription to Esd Developer Network (EDN) One (1) CityEngine Advanced Single Use License OTHER BENEFITS Number of Esd International User Conference Registrations provided annually 3 Number of Tier 1 Help Desk Individuals authorized to call Esri 3 Maximum number of sets of backup media, if requested* 2 Virtual Campus Annual User License allowance 7,500 Fie percent (5%) discount on all individual commercially available instructor -led training classes at Earl facilities purchased outside of this Agreement Discount does not apply to Small Enterprise Training Package.) " Additional sets of backup media may be purchased. This ELA supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such subject matter, which is the licensing of the Enterprise Software. Except as provided in Section 9.1 Future Versions/Updates, any modifications or amendments to this ELA must be in writing and signed by an authorized representative of each party. Licensee may accept this ELA by signing and returning it to Attn.: Esri Customer Service, 380 New York Street, Redlands, CA 92373-8100; e -mailing it to serviceftesri.com or faxing it to 909-307-3083. Licensee will include an authorizing Purchase Order that matches the ELA Quotation and complies with the requirements of this ELA. ADDITIONAL OR CONFLICTING TERMS IN LICENSEE'S ORDER WILL NOT APPLY, AND THE TERMS OF THIS ELA WILL GOVERN. ACCEPTED AND AGREED: Licensee Contact Information (License) By: Signature Printed Name: Title: Date: Contact Name: Address: City, State, ZIP: Telephone: _ Fax: E-mail: Esd EIN Number: 95-2775732 ELA Quotation Number: Esd Contract Number: E214-2 Page 1 of 01/10/2012 ELA TERMS AND CONDITIONS ARTICLE 1—DEFINITIONS Definitions. The terms used are defined as follows: • "Data" means any Esri or third -party digital dataset(s) including, but not limited to, geographic vector data coordinates, raster, reports, or associated tabular attributes licensed under this ELA. • "Deploy," "Deployed," or "Deployment" means to redistribute and install or the redistribution and installation of the Enterprise Software (and related key codes/registration files) or its having been redistributed and Installed by Licensee on Licensee's hardware. • "Documentation" means all printed and digital materials Including help files and user reference documentation that are delivered with the Software or, If delivered via download, that are delivered from the Software setup or installation program. ■ "ELA Fee" means the fee set forth in the ELA Quotation. • "ELA Maintenance" means Tier 2 Support, updates, and patches provided by Esri to Licensee for the Enterprise Software. • "ELA Quotation" means the Esri quote form provided to Licensee for the Small Municipal and County ELA containing the ELA Fee and annual payment schedule. ■ "Enterprise Software" means the items identified in the Enterprise Software Schedule on page 1 of this ELA. ■ "Incident" means a failure of the Software to operate according to the Documentation where such failure substantially impacts operational or functional performance. • "License Agreement" and "ELN" are used interchangeably and mean the ELA Terms and Conditions, including Exhibit 1 --Scope of Use (E300), that apply to Enterprise Software provided to Licensee by Esri under this ELA. • "Samples" means sample rode, sample applications, add-ons, or sample extensions of Software, Data, Documentation, or Web Services. ■ "Software" means the actual copy of all or any portion of Earl's proprietary software technology. accessed or downloaded from an authorized Esri website or delivered on any media, in any format, including backups, updates, service packs, patches, hot fixes, or permitted merged copies as identified in Exhibit 1. ■ 'Technical Support" means a process to attempt to resolve reported Incidents through error correction; patches; hot fixes; workarounds; replacement deliveries; or any other type of Software, Data, or Documentation corrections or modifications. • "Term License(s)" means license(s) provided for use during a fixed or limited time period concurrent with the term of this ELA. • 'Tier 1 Help Desk" means Licensee point of contact from which all Tier 1 Support will be given to Licensee. • 'Tier i Support" means the Technical Support provided by the Tier 1 Help Desk as the primary contact to Licensee in attempted resolution of reported Incidents. • "Tier 2 Support" means the Technical Support provided by Esri to the Tier 1 Help Desk when the Incident cannot be resolved through Tier 1 Support. ■ "Web Services" means software services or Esri or third -party data provided by Esri that perform geographic information system (GIS) functions, tasks, or data services and are accessed over the Internet, excluding Virtual Campus, as identified in Exhibit 1. 12 099 ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP The Enterprise Software Is licensed and riot soli. Esri and its licensors own the Enterprise Software and all copies, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect the Enterprise Software from unauthorized use, reproduction, distribution, or publication. Esri and its third -party licensors reserve all rights not specifically granted in this ELA Including the right to change and improve Web Services. ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License. Subject to the terms and conditions of this ELA, Esri grants to Licensee a personal, nonexclusive, nontransferable Tenn License solely to a. Use, copy, and Deploy quantities of Enterprise Software as defined in the Enterprise Software Schedule of this ELA for Licensee's own Internal use for a term concurrent with this ELA. b. Deploy one subscription of the Esri Developer Network for use by a single named developer for the term of this ELA. c. Access and use any secure Esri website resources made available to Licensee for Licensee's internal use, provided that Licensee follows Esri's terns of use policy specified therein. All password or controlled access information provided by Esri shall be treated as Esri confidential Information, d. Use Enterprise Software in accordance with Exhibit 1— Scope of Use (provided that all licenses are Term Licenses). 3.2 Consultant Access, Subject to Section 3.1, Licensee may provide access to the Enterprise Software to any consultant or contractor of Licensee, provided consultants' and contractors' use is for the sole benefit of Licensee while (i) working do -site at Licensee's facilities, (ii) remotely accessing or using Enterprise Software from Licensee's on-site computers or machines, or (iii) remotely accessing or using Enterprise Software from a third party's computers or machines under contract to Licensee. Licensee shall be responsible for compliance by consultants or contractors with the terms and conditions of this ELA. Licensee shall require consultants and contractors to discontinue access to and use of Enterprise Software upon completion of work for Licensee. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store the Software, Data, and Documentation on electronic storage device(s). b. Licensee may make one (1) copy of the Software, Data, and Documentation for archival purposes. Licensee may crake routine computer backups. a Licensee may customize the Software using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in the Documentation. d. Licensee may use, copy, or prepare derivative works of the Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own Internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or E214-2 Page 2 of 6 01110/2012 digital documentation are subject to this ELA. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensor(s): "Portions of this document Include intellectual Property of Esri and its licensor(s) and are used herein under license. Copyright © [insert the actual copyright date(s) from the source materials] Esri and its licensor(s). All rights reserved." 4.2 Uses Not Permitted a. Except as provided herein, Licensee shall not sell, rent, lease, sublicense, lend, assign, or time-share the Enterprise Software. Licensee shall not act as a service bureau or commercial application service provider (ASP) that allows third -party access to the Enterprise Software. Licensee shall not use Enterprise Software for a site or service and operate the site or the service for a profit or generate revenue through direct or indirect methods (e.g., advertising or charging for access to the site or service). b. Except as provided herein, Licensee shall not redistribute the Software to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs. c. Licensee shall not reverse engineer, decompile, or disassemble the Enterprise Software, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction. d. Except to the extent that applicable law prohibits this restriction, Licensee shall not make any attempt to circumvent the technological measure(s) that controls access to, or use of, the Enterprise Software. e. Except as provided herein, Licensee shall not redistribute the Software activation number(s), registration numberilic ense authorization file(s), developer license file(s), or Web Services access codes to third parties. I. Licensee shall not use the Software or Web Services to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws. g. Licensee shall not remove or obscure any Esri or its licensor(s) patent, copyright, trademark, or proprietary rights notices contained in or affixed to the Enterprise Software. h. Licensee shall not unbundle individual or component parts of the Software or Data for independent use. I. Hard -copy Documentation may not be copied. j. Licensee shall not use, transfer, redistribute, or Deploy Enterprise Software outside the United States. ARTICLE S—TERM AND TERMINATION AND EXPIRATION 5.1 Term. The term of the ELA shall be three (3) years from the Effective Date, unless this ELA is terminated earlier as provided herein. The term of all licenses and the authorized period of use for all Enterprise Software Deployed shall be concurrent with the term of this ELA. No indefinite or perpetual license grants are provided with this ELA. 5.2 Termination for Lack of Funds. Either party may terminate this ELA for Lack of Funds. Lack of Funds is the inability of Licensee to secure appropriation of funds through the legislative or governing body's approval process for annual payments due. 5.3 Termination for a Material Breach. Either party may terminate this ELA for a material breach by the other party. The breaching party shall be given a period of ten (10) days from date of written notice to cure any material breach. 5.4 No Use upon Expiration or Termination. Upon expiration or termination of this ELA, all Enterprise Software Deployed shall terminate_ Licensee shall cease access and use of Web Services 12 099 and clear Web Services client -side data cache and cease use, uninstall, remove, and destroy all Deployed Software, Data, and Documentation and any whole or partial copies, modifications, media, or merged portions in any form and execute and deliver evidence of such actions to Esri. ELA Maintenance, Virtual Campus access, and User Conference Registrations shall also terminate. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided in this Article 6, Esri warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) the media upon which the Software is provided, if any, will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. 6.2 Data and Web Services Disclaimer. The Data and Web Services may contain some nonconformifies, defects, errors, or omissions. THE DATA AND WEB SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, Esri and its licensors) do not warrant that the Data and Web Services will meet Licensee's needs or expectations, that the use of the Data and Web Services will be uninterrupted, or that all nonconforrnities can or will be corrected. Esri and its licensor(s) are not inviting reliance on this Data or Web Services, and Licensee should always verify actual Data or Web Services. 6.3 Special Disclaimer. SAMPLES, PATCHES, AND HOT FIXES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAMPLES, PATCHES. AND HOT FIXES. 6.4 Internet Disclaimer. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT (1) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (ii) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, AND (iii) NONE OF THE PARTIES SHALL BE LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SERVICE. 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT THE ENTERPRISE SOFTWARE WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT TOLERANT, OR FAIL-SAFE; OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 6.6 Exclusive Remedy. Licensee's exclusive remedy and Earl's entire liability for breach of the limited warranties set forth In this E214-2 Page 3 of 6 01/10/2012 Article 6 shall be limited, at Esri's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a workaround for the Software subject to the Esri Maintenance Program found at www.esri com/leca /maintenancehto]j; or (iii) return of the license fees paid by Licensee for the Software or Documentation that does not meet Esri's limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of the Software or Documentation and executes and delivers evidence of such actions to Esri. ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSOR(S) SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; OR LOSS OF ANY GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS ELA OR USE OF THE ENTERPRISE SOFTWARE, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO THIS ELA. 7.3 Applicability of Disclaimers and Limitations. The parties agree that Esri has set its fees and entered into this ELA in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 8—INFRINGEMENT INDEMNITY 8.1 Esri shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third party alleging that the Software infringes a US patent, copyright, or trademark provided Licensee promptly notifies Esri in writing of the claim; Licensee provides documents clearly describing the allegations of infringement; Esri has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and Licensee cooperates fully in the defense of the claim. 8.2 If the Software is found to infringe a US patent, copyright, or trademark, Esri, at its own expense, may either (i) obtain rights for Licensee to continue using the Software or (0) modify the allegedly infringing elements of the Software while maintaining substantially similar software functionality or data/Informational content. If neither alternative is commercially reasonable, the infringing items shall be returned to Esri, the licence shall 12 099 terminate, and Licensee shall uninstall the infringing items. Esri's entire liability shall then be to indemnify Licensee pursuant to Section 8.1 and to refund a portion of the fees paid by Licensee in the current fee payment period. The refund will be calculated for the time remaining for the fee payment period, starting from the notice date of infringement to the end of the fee payment period. 8.3 Esri shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement of the Software by (i) the combination of or integration with a product, process, or system not supplied by Esri; (ii) material alteration by anyone other than Esri or contractors acting on behalf of Esri; (iii) use after Licensee has been notified of possible Infringement; or (iv) use after modifications are provided or a retum is ordered by Esri under Section 8.2. 8.4 In no event shall the Indemnification set forth in this Article 8 apply to any Samples provided hereunder. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ARTICLE 9—GENERAL PROVISIONS 9.1 Future Versions/Updates. Esri reserves the right to update the Small Municipal and County Enterprise Software program suite. Licensee may continue to use all Enterprise Software that has been Deployed, but support and upgrades for deleted items may not be available. As new Enterprise Software is incorporated Into the standard program, it will be offered to Licensee via written notice for incorporation into the Enterprise Software Schedule at no additional charge. New or updated Enterprise Software may require additional or revised terms and conditions. The terms and conditions subject to revision are limited to Article 1—Definitions, Article 4—Scope of Use, and Exhibit 1—Scope of Use (E300) or any term as required by law. Esri may provide notice of the additional terms or revisions to Licensee in writing or by posting them on Esri's website at www.esri.com/leoal, The additional terms or revisions shall be incorporated into this ELA upon use of the updated or new Enterprise Software. Should Licensee reject the additional terms or revisions, then Licensee shall not install or use the revised, updated, or new Enterprise Software. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release the Enterprise Software, in whole or in part, to (!)any US embargoed country (or to a national or resident of any US embargoed country); (it) any person on the US Treasury Department's list of Specially Designated Nationals; (111) any person or entity on the US Commerce Departmenrs Denied Persons List, Entity List, or Unverified List; or (Iv) any person or entity to which such export or reexport violates any US export control laws or regulations including, but not limited to, the terms of any export license or license exemption and any amendments and supplemental additions to US export laws as they may occur from time to time. 9.3 Taxes and Fees. Sales or use taxes for the fees quoted are as required by law. The tax amount may change depending on the time elapsed between this quote and date of the invoice. Esri will include applicable sales or use taxes on your Invoice unless you provide proof with your order that your organization or use of the product is tax exempt. 9.4 No Implied Waivers. The failure of either party to enforce any provision of this ELA shall not be deemed a waiver of the E214-2 Page 4 of 6 01/10/2012 provisions or of the right of such party thereafter to enface that or any other provision. 9.5 Severability. The parties agree that if any provision of this ELA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable. 9.6 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this ELA without Esri's prior written consent, and any attempt to do so without consent shall be void. This ELA shall be binding upon the respective successors and assigns of the parties to this ELA. 9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, and 9 of this ELA shall survive the expiration or termination of this ELA. 9.8 Equitable Relief. The parties agree that any breach of this ELA may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Esri shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction. 9.9 Goveming Law. This ELA shall be govemed by and construed in accordance with the laws of the state in which Licensee is located without reference to conflict of laws principles, except that US federal law shall govern in matters of intellectual property. ARTICLE 10—ELA MAINTENANCE ELA Maintenance for Enterprise Software provided under this ELA is included with the ELA Fee. ELA Maintenance includes standard maintenance benefits specified in the most current applicable Esri US Software Maintenance Program document (found at www.esri.comAeaal) as modified by this Article 10—ELA Maintenance. ELA Maintenance does not include Technical Support for Web Services. a. Tier 1 Support Provided by Licensee (1) Licensee shall provide Tier 1 Support through the Tier 1 Help Desk to all Licensee's authorized users. (2) The Tier 1 Help Desk will use analysts fully trained In the Software they are supporting. (3) At a minimum, Tier 1 Support will Include those activities that assist the user in resolving how-to and operational questions as well as questions on Installation and troubleshooting procedures. (4) Tier 1 Support analysts will be the initial points of contact for all questions and Incidents. Tier 1 Support analysts shall obtain a full description of each reported Incident and the system configuration from the user. This may Include obtaining any customizations, code samples, or data involved in the Incident. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Incidents. (5) If the Tier 1 Help Desk cannot resolve the Incident, an authorized Tier 1 Help Desk individual may contact Esri Tier 2 Support. The Tier 1 Help Desk shall provide support in such a way as to minimize repeat calls and make solutions to problems available to Licensee. (6) Tier 1 Help Desk individuals identified by Licensee are the only individuals (callers) authorized to contact Esri directly for Tier 2 Support. Licensee may revise named Individuals by written notice. i 12 499; b. Tier 2 Support Provided by Esri (1) Esri shall log the calls received from Tier 1 Help Desk individuals. (2) Esri shall review all Information collected by and received from Tier 1 Help Desk individuals including preliminary documented troubleshooting provided by Tier 1 Help Desk when Tier 2 Support is required. (3) Esri may request that Tier 1 Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk. (4) Esri shall attempt to resolve the Incidents submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk Individuals. (5) When the Incident is resolved, Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to the user. Esri may, at Esrl's sole discretion, make patches, hot fixes, or updates available for downloading from Esd's website. No Software other than the defined Enterprise Software will be provided maintenance under this ELA. Licensee may acquire maintenance for other Software (non - Enterprise Software) outside of this ELA. ARTICLE 11—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT 11.1 Purchase Orders, Delivery, and Deployment Licensee shall issue a Purchase Order upon execution of the ELA and annually thereafter in accordance with the ELA Quotation. Payment shall be due and payable within thirty (30) days of the anniversary date of the Effective Date, with the initial payment due within thirty (30) days of execution of the ELA. Esd's Federal ID Number is 95-2775-732. Upon receipt of the initial Purchase Order from Licensee, Esri shall authorize download of the Enterprise Software to Licensee for Its Deployment activities. If requested, Esri will ship backup media to the ship -to address identified on the Purchase Order, FOB Destination, with shipping charges prepaid. For those entities that avoid sales tax by downloading deliverables, request for delivery or receipt of tangible media may cause license fees to be subject to taxes. Licensee acknowledges that should such taxes become due, Esri has a right to invoice and Licensee agrees to pay any such sales or use tax associated with its receipt of tangible media. Esri shall provide registration numbers or keycodes, as applicable, to activate the nondestructive copy protection program that enables the Enterprise Software to operate. Licensee shall Deploy, Install, configure, and track the Deployment status of the Enterprise Software. 11.2 Purchase Order Requirements All orders pertaining to this ELA shall be processed through Licensee's centralized point of contact. The following information shall be Included in each Purchase Order: (1) Licensee name; Esri customer number, if known; and bill - to and ship -to addresses (2) Purchase Order number (3) Applicable annual payment due E214-2 Page 5 of 6 01110/2012 12 099 (4) On the face page of its Purchase Order (or ordering document), Licensee shall insert a reference to the ELA and the following statement: 'THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL TERMS AND CONDITIONS IN THE PURCHASE ORDER WILL NOT APPLY." ARTICLE 12 --ENDORSEMENT AND PUBLICITY This ELA shall not be construed or interpreted as an exclusive dealings agreement or an endorsement of Esd by Licensee. Licensee agrees that upon execution of the ELA. Esri may publicize the existence of this ELA. ARTICLE 13—ADMINISTRATIVE REQUIREMENTS 13.1 OEM Licenses. If Licensee obtains Software, Data, Web Services, or any component thereof as part of an original equipment manufacturer (OEM) software program or product developed and licensed by an OEM business partner of Esd, Licensee shall not be entitled to or seek any discount from the OEM business partner or Esd, directly or indirectly, as a result of or based on the availability of such Software, Data, or Web Services as Enterprise Software under this ELA. In addition, such Software, Data, Web Services, or any component thereof included in the OEM software program or product will be licensed through the license agreement provided by the OEM business partner and not through this ELA. 13.2 Product Obsolescence. During the term of this ELA, some Enterprise Software items may become obsolete, may no longer be commercially offered, or may no longer be available for unlimited quantity Deployment. Licensee may continue to use such Enterprise Software that has been Deployed for the term of the ELA, but updates for such obsolete Enterprise Software may not be available. Esri's Product Life Cycle Support Policy, available at help.arcuis.com/oNshamd/Product-life pycle/ProductLifeCvcle.odf, defines the support phases and overall support plans. ELA Maintenance shall be subject to the individual Product Life Cycle Support Status, which can be found at hUpJlresouroes.arcais.com/contenUnroduct-life-cycles. 13.3 Renewal. Upon expiration of this ELA, the parties will evaluate Licensee's requirements. Any follow-on ELA will be offered in accordance with license terms and condition and pricing then in effect and based on Licensee's then current population count. ARTICLE 14—OPTIONAL ITEMS If training courses identified in the ELA Quotation are acquired, they will be subject to the terms found in Exhibit 2—Training Addendum. In the event Licensee orders training courses, the terms and conditions of the Training Addendum will take precedence over the provision of the ELA with respect to the training courses. E214-2 Page 6 of 6 01/10/2012 EXHIBIT 1 SCOPE OF USE (E300 09/29/2011) 12 099E Esri, 380 New York St, Redlands, CA 92373-8100 USA - TEL 909-793-2853 • FAX 909-793-5953 The scope of use for the Software, Data, and Web Services identified below is described in the applicable footnotes identified in parentheses. Software • ArcExplorer-Java and Windows Editions (20 and 25) • ArcGIS API for iOS, Windows Phone, or Android (l, 16, 25, and 33) ■ ArcGIS Desktop - Arclnfo (either 1 or 2 and 25, 26, 33, 44, and 45) - ArcEditor (either I or 2 and 25, 26, 33, 44, and 45) - ArcView (either I or 2 and 25, 33, 44, and 45) • ArcGIS Desktop Extensions (7) • ArcGIS Engine Developer Kit and Extensions (1, 14, 15, 22, 25, 26, and 43) • ArcGIS Engine Runtime and Extensions (either 1 or 2 and 15, 22, 25, 26, and 33) • ArcGIS Explorer (20, 25, and 33) • ArcGIS for AutoCAD (1, 20, and 25) • ArcGIS for iOS (l, 25, and 33) ■ ArcGIS Mobile Deployments (1, 15, 16, 25, 33, and 54) • ArcGIS Runtime (1, 15, 18, 33, 35, and 59) ■ ArcGIS Runtime SDK (1, 15, 18, 33, 35, and 60) ■ ArcGIS Server - Workgroup (either 3 or 5 and 8, 9, 25, 28, 29, 30, 32, 33, 38, 39, 40, and 45; if licensed as a Term License, 6 will also apply) - Enterprise (either 3, 4, or 5 and 8, 9, 25, 27, 31, 33, 38, 39, 40, and 45; if licensed as a Term License, 6 will also apply) > Cloud Bundle (6 and 33 ) • ArcGIS Server Extensions - ArcGIS for INSPIRE (7, 8, 33, and 35) - ArcGIS Server Geoportal Extension (either 3, 4, or 5 and 7 and 52) - ArcGIS Server Image Extension (7, 8, and 42) - ArcGIS Server Image Extension Service Editor (1) - Other Extensions (7) ■ ArcGIS Web Mapping (including SharePoint, JavaScript, Adobe Flex, Microsoft SilverlighYWPF, SOAP, and REST) (6, 33, and 35) • ArcIMS - ArcIMS and Extensions (either 3, 4, or Sand 8, 10, 31, and 45) • ArcLogistics - Desktop (1 and 25) - Using ArcGIS Online (6, 20, 25, 34, 35, and 46) - Using ArcGIS Server (6, 20, 25, 34, 35, and 46) - Navigator (I and 46) • ArcPad (1, 12, 13, 25, and 33) ■ ArcReader (20, 25, 33, and 45) • ArcView 3.x and Extensions (1, 7, and 17) • Esri Aeronautical Solution (either I or 2) ■ Esri Business Analyst (Canadian Edition) (either 1 or 2 and 6, 25, 33, 36, 45, and 48) ■ Esri Business Analyst (either 1 or 2 and 25, 33, 45, and 48) • Esri Business Analyst Online API for Adobe Flex, Microsoft Silverlight, SOAP, and REST (6, 16, 25, 33, 35, 55, and 56) • Esri Business Analyst Server - Workgroup (either 3, 4, or 5 and 8, 9, 21, 25, 28, 29, 31, 33, 39, 40, 45, and 48) - Enterprise (either 3, 4, or 5 and 8, 9, 21, 25, 27, 31, 33, 39, 40, 45, and 48) • Esri Business Analyst Server (Canadian Edition) (either 3, 4, or 5 and 8, 9, 21, 25, 27, 31, 33, 36, 39, 40, 45, and 48) • Esri Business Analyst Server Developer (3, 6, 25, 33, 35, and 5l) Esri Business Analyst Server Developer (Canadian Edition) (3, 6, 25, 33, 35, 36, and 51) • Esri CityEngine (either 1 or 2 and 44) ' Esri Defense Mapping (either 1 or 2) • Esri Developer Network (EDN) Software, Web Services, and Data (6, 7, 24, 25, 26, 33, 34, and 35) ■ Esri File Geodatabase API (47) ■ Esri Nautical Solution (either 1 or 2) • Esri Production Mapping (either 1 or 2) • Geoportat Clients for ArcGIS (7, 20, and 52) ■ MapIt (11, 25, 31, 33, 35, 49, and 50) • MapObjects--Java Edition (1, 5, 8, 15, 18, and 19) • MapObjects LT (1, 14, and 16) • MapObjects-Windows Edition (1, 14, 15, 16, and 18) ■ MOLE (1) • NetEngine Internet (5) ■ Portal for ArcGIS (5, 6, 31, 33, 61, 62, and 63) • Tracking Server (either 4 or 5 and 31) Web Services ■ ArcGIS Online Services (6, 25, 33, 34, and 35) ■ Esri Business Analyst Online (6, 25, 33, 48, 56, 57, and 58) • Esri Business Analyst Online Mobile (1, 6, 25, 33, 48, 56, 57, and 58) ■ Esri Community Analyst (6, 25, 33, 48, 56, 57, and 58) ■ Esri MapStudio (6, 25, 33, 34, 35, and 56) ■ Esri Redistricting Online (6, 25, 33, 34, and 35) Data • Data with ArcGIS Data Appliance (6, 23, 25, and 4l) ■ Esri Address Coder (either 1, 2, or 5 and 21, 22, 25, and 48) ■ Esri Business Analyst (Canadian Edition) Data (either I or 2 and 6, 21, 25, 33, 36, 45, and 48) • Esri Business Analyst Data (either 1 or 2 and 21, 25, 33, 45, and 48) • Esri Business Analyst Server (Canadian Edition) Data (either 3, 4, or 5 and 21, 25, 33, 36, 45, and 48) • Esri Business Analyst Server Data (either 3, 4, or 5 and 21, 25, 33, 45, and 48) • Esri Data & Maps (either 1, 2, 3, 4, or 5 and 23 and 37) ■ Esri Data (either 1, 2, or 5 and 25 and 48) - Demographic, Consumer Spending, Market Potential, Retail MarketPlace, Business, Traffic, Shopping Center, Cable Boundaries, Banking, and Crime • Sourcebook -America (l and 21) • StreetMap Premium (either 1, 2, 4, or 5 and 6 and 25) ■ Tapestry Segmentation (either 1, 2, or 5 and 21 and 48) E300 Page I of 4 09/29/2011 12 099 L "Single Use License." Licensee may permit a single authorized end user to install and use the Software, Data, and Documentation on a single computer for use by that end user on the computer on which the Software is installed. Remote access is not permitted. Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer as long as only one (1) copy of the Software, Data, and Documentation is in use at any one (1) time. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 2. "Concurrent Use License." Licensee may install and use the Software, Data, and Documentation on computer(s) on a network, but the number of simultaneous users may not exceed the number of licenses acquired. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 3. "Development Server License." Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License rights, Licensee may use and install the Software for the following purposes: user acceptance testing, performance testing, load testing of other third -party software, staging new commercial data updates, and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights, Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. "Term License." License is provided for use for a limited time period or on a subscription or transaction basis. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User -developed ArcGIS Server administration tools may be copied throughout Licensee's organization, but the ArcCatalog application (found in ArcGIS Desktop) may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects—Windows Edition applications on the Internet or intranet. Licensee shall not develop client/server solutions with the ArcIMS—Java Archive (JAR) files without a license for the MapObjects--Java Edition developer kit. 11. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). The Software is licensed per server. The licensed server is the server on which Licensee installs the Spatial Data Service. 12. Software is only licensed for navigational use when used in conjunction with ArcLogistics. 13. "Dual Use License" means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as long as the Software is only used by a single individual at any one (1) time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright 0 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. US Patent No. 5,710,835." 15. Deployment licenses for desktop or Internet application(s) may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s) provided Licensee uses a written sublicense agreement that protects Esri's rights in its Software, Data, Web Services, and Documentation to the same extent as the Esri License Agreement including, but not limited to, the following terms: a. Sublicensee may not reverse engineer, decompile, or disassemble the Esri Software, Data, Web Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use; transfer; or assign its rights under the license grant; b. Sublicensee may not use any Esri Software, Data, Web Services, or Documentation, in whole or in part, separate from Licensee's executable application; and c. Third -party dependent or required components are redistributable subject to permission from the owner or author. d. Applications may be subject to deployment fees owed to Esri. Licensee shall contact its distributor for details. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media. Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. MapObjects Java Edition contains Java Archive files, which indicate they are authentic Esri-certificated files when used over the Internet. Licensee shall not use Esri certification or reference Esri as a source of trusted content in any modified MapObjects—Java Archive files. Licensee may deploy the unmodified Java class Esri-certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a) the Software is reproduced and deployed in its entirety; (b) a license agreement accompanies each copy of the Software that protects the Software to the same extent as the Esri License Agreement, and the recipient agrees to be bound by the terms and conditions of the license agreement; (c) all copyright and trademark attributions/notices are reproduced; and (d) there is no charge or fee attributable to the use of the Software. 21. Licensee shall not withhold any substantial right (e.g., extension of credit) from any individual based solely on the individual's place of residence, as profiled in the Tapestry Segmentation system. E300 Page 2 of 4 09/29/2011 1.2 09 22. (a) ArcGIS Engine Runtime licenses shall not be used for Internet and server development and deployment; (b) an end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software (ArcView, ArcEditor, or ArcInfo) to obtain the right to run an ArcGIS Engine application on one (1) computer; and (c) the ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications. A single user can have multiple applications installed on one (1) computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http://www.esri.com/legal/ in the Help system, or in supporting metadata files, subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software, Web Services, and Data may only be used by one (1) named developer per subscription solely for the purposes of research, development, testing, and demonstration of a prototype application. EDN server Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third -party owned data shall be subject to the Use of Data Restrictions found at http://www.esii.corwIeRaV for the specific Data accessed. The Use of Data Restrictions may be modified by Esri from time to time. If a modification is unacceptable to Licensee, Licensee may cancel a subscription upon written notice to Esri, or discontinue use of the Data or Web Services, as applicable. If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to ten (10) gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independent of Licensee's ArcGIS Server Enterprise configuration. 28. Use is limited to ten (10) concurrent end users of applications other than ArcGIS Server applications. This restriction includes use of ArcGIS Desktop Software, ArcGIS Engine Software, and third -party applications that connect directly to any ArcGIS Server geodatabase. There are no limitations on the number of connections from web applications. 29. Software can only be used with SQL Server 2005/2008 Express. 30. Use is restricted to a maximum of ten (10) gigabytes of Licensee data. 31. Redundant Software installation(s) for failover operations is allowed but can only be operational during the period the primary site is nonoperational. The redundant Software installation(s) shall remain dormant, except for system maintenance and updating of databases, while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. Licensee's access to and use of Cloud Bundle, ArcGIS Web Mapping, ArcGIS Online Services, Business Analyst Online, Business Analyst Online API, or Microsoft Bing Maps is conditioned upon Licensee's acceptance of the Esri Web Services and API Terms of Use, the Business Analvst Online Web Subscription Terns and Conditions the Terms of Use for Bine Mans Services and any other terms and conditions applicable thereto or to any third -party data being accessed through them, found at http://www.esri.com/le&a_1. 34. Licensee's organization is limited to the number of specified credits, transactions, geography, or number of users as described in the online product description. 35. Licensed end users shall not share the client -side data cache derived from ArcGIS Online Services with other licensed end users or third parties. 36. Licensee's use of Esri Business Analyst (Canadian Edition) Data is subject to the Use of Data Restrictions specific to Esri Business Analyst (Canadian Edition Data. 37. Data provided with StreetMap USA may be used for mapping, geocoding, and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or to calculate an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard (Workgroup or Enterprise) may only be used for generating globe data cache(s) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS Server 3D extension Software is permitted with AreGIS Server Standard. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic (Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans (EJB) provided with ArcGIS Server (Workgroup or Enterprise) is permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance. This restriction applies to a large-scale (i.e., scale levels below 1:100,000) street map, transportation layer, boundaries and places layer, and one (1) -meter or better resolution imagery included in the USA Collection. This restriction does not apply to the small-scale (i.e., scale levels above 1:100,000) maps provided in the World Collection, which are intended for display at global and regional scales. 42. Licensee has the right to one (1) desktop deployment of the ArcGIS Server Image extension Service Definition Editor for every four (4) cores of ArcGIS Server Image extension that are licensed. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the ArcGIS Engine Runtime Software. E300 Page 3 of 4 09/29/2011 12 099 44. For any operating system environment in which Licensee runs instances of the Concurrent Use License management software, Licensee may run up to the same number of passive failover instances of the Concurrent Use License management software in a separate operating system environment for temporary failover support. 45. Data licensed with Esri Business Analyst and Esri Business Analyst Server is restricted for use only in conjunction with the respective Business Analyst extension. 46. Licensee should not follow any route suggestions that appear to be hazardous, unsafe, or illegal. Licensee assumes all risk of using this navigation Software. 47. Licensee may develop and distribute software or web applications that use the Esri File Geodatabase API to Licensee's end users. 48. Licensee may include reports and maps created from the Software or Data in hard -copy or read-only format for presentation packages or marketing studies for subsidiaries and customers. The total content of the Esri reports and maps must be less than twenty percent (20%) of Licensee's total content of the presentation package or marketing study. Full, complete, stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold, sublicensed, or otherwise transferal without prior written permission of Esri. Licensee's third -party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes. In no case shall Licensee redistribute the Data in digital formats. 49. Esri MapIt Silverlight Web or WPF applications may not be deployed independent of Licensee's MapIt deployment configuration. 50. Licensee has the right to one (1) desktop deployment of Spatial Data Assistant for each Esri MapIt server license. 51. Esri Business Analyst Server Developer and Data may only be installed on one (1) server per license solely for the purposes of research, development, testing, and demonstration of a prototype application. 52. Source code is the intellectual property of Esri. Licensee shall treat any source code file identified as "Software" in a README file or at http://www.esri.com/legal/ as a trade secret for Licensee's own internal use only and not for further redistribution or access by unlicensed third parties. Licensee shall not modify the Software, Documentation, Data, or source code to incorporate, embed, link, or otherwise include any code, libraries, or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU General Public License (GPL) or GPL-compliant licenses, including, without limitation, the Artistic License (e.g., Pert), the Mozilla Public License, the Netscape Public License, and the Sun Community or Industry Standards License, that could require a user to make its proprietary source code available to a requesting third party. 53. Reserved. 54. ArcGIS Mobile is licensed for use with ArcGIS Server Advanced (Enterprise or Workgroup) and ArcGIS Desktop (Arclnfo, ArcEditor, ArcView, and ArcGIS Engine applications). 55. Licensee may develop software or web applications that use the Business Analyst Online API to access, query, create, display, and redistribute Reports and resulting static, electronic maps to end user(s) of Licensee's software or web applications. End user(s) of Licensee's software or web applications may use the Reports and maps for internal purposes only and not for further redistribution. "Report" means any formatted output created by the Business Analyst Online API, which includes PDF, CSV, Excel, HTML, and XML formats. Licensee shall not redistribute any Data in vector formats. 56. For Reports or maps displayed or posted to an external website, or Reports or maps crated for Licensee's end user(s), Licensee shall affix an attribution notice to Licensee's online and/or hard -copy output that acknowledges Esri's and its third -party data supplier's intellectual property. These notices are found in the PDF or export image format of each individual Report or image, or as follows: "Source [Esri, Supplier]" or Copyright ® [year(s)] [Esri, Supplier]. All rights reserved." 57. Licensee may only display or post any combination of 100 Business Analyst Online or Community Analyst Reports and maps on its external websites. 58. Licensee shall order a separate Business Analyst Online or Community Analyst subscription for each person who uses Business Analyst Online or Community Analyst and shall provide output from the Business Analyst Online or Community Analyst subscription only to the e-mail of the individual subscriber. 59. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the ArcGIS Runtime Software up to the number of deployment licenses that have been purchased. 60. (a) ArcGIS Runtime licenses shall not be used for Internet and server development and deployment; (b) an end user must purchase a software application that includes an ArcGIS Runtime license to obtain the right to run an ArcGIS Runtime application on one (1) computer. A single user may have multiple ArcGIS Runtime licensed applications installed on one (1) computer that utilize a single ArcGIS Runtime. 61. Oracle is a third -party beneficiary of Esri's rights under the Esri License Agreement with respect to the Software but is not a party hereto and assumes no obligations hereunder. 62. Esri and its Licensors reserve the right to conduct an audit of Licensee's use of the Software. Licensee will provide reasonable assistance and access to information regarding Licensee's use of the Software. Audit results may be reported to Esri's Licensors. Fees for over -deployment or excess usage are payable within thirty (30) days of the invoice date. 63. Licensee may not publish the results of benchmark tests run on the Software without the prior written permission of Esri and its Licensors. E300 Page 4 of 4 09/29/2011 12 099 qpesri� EXHIBIT 2 TRAINING ADDENDUM (E207SET 3/11) Earl, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909.793-2853 • FAX 909-793-5953 ARTICLE 1 -TRAINING DESCRIPTION Esri offers instructor -led training related to the use of its proprietary GIS software. Esri will provide to Licensee a fixed number of training days to use for Instructor -Led Training, as defined in this Small Enterprise Training Package, if purchased. Instructor -Led Training events occur at an Esri Learning Center or via the web in a cloud environment. The Esri software training course(s) to be conducted, location, schedule dates, and registration requirements are set forth in the Esri Training catalog located on Esri's Training website (bWtraininc esricom). AN courses are conducted in substantial conformity with course descriptions outlined on the Esri Training website. Esri reserves the right to modify course content when necessary due to software technical capabilities or limitations. ARTICLE 2—ESRPS RESPONSIBILITIES Esri will provide an instructor qualified to conduct the course(s) as well as all necessary training materials sufficient for the number of registered participants (hereinafter •Student(s)•) on the scheduled dates. Esri will provide each Student with a course manual where applicable. Esri will confirm Learning Center training Gass scheduled dates approximately ten (10) business days prior to the class start date. ARTICLE 3—LICENSEE'S RESPONSIBILITIES • Licensee must ensure the protection of FM's copyrights. Licensee shall neither copy or distribute nor permit a third party to copy or distribute any of Esri's training material(s) unless otherwise required by law. ■ Licensee must not resell seats) to an Esri training class unless explicitly authorized in writing by Esri. • Licensee must confirm that all registered Students met the minimum prerequisites for the applicable class set forth on Earls Training website. • Licensee must ensure that all Students have received confirmation from Esri to participate in an Esri training event. Unregistered Students are not permitted to view or participate in a Virtual Classroom training event. Esri reserves the right to disconnect any Student who permits access to unregistered Students. • Licensee must submit registrations with a confirmed payment commitment at least seven (7) business days before the class start date. If Licensee submits a registration without a confirmed payment, Esri will not confine the seat reservation. The reservation will be added to the waiting list pending payment confirmation and subject to availability. ■ US government export control laws and regulations prohibit US persons from engaging in transactions with certain denied persons found on various US Government Denied Persons lists (e.g., US Department of the Treasury's Specially Designated Nationals Ust, US Commerce Department's Denied Persons/Entity List, etc.). To meet these export requirements, Licensee must submit to Esri Customer Service a list of the names of Students that are to attend any training class. Any Student that is found on any of the various US Government Denied Persons lists will not be permitted to attend training. • Licensee is responsible for all Student travel arrangements. Esri assumes no responsibility for losses from nonrefundable travel arrangements resulting from denial of a Student's participation due to US government export regulation requirements, course scheduling changes, or cancellations. • Licensee must provide written notice to Esri's Customer Service at service4esri.com of any cancellation, rescheduling, or Student substitution requirements and receive confirmation of these change(s) prior to the class start date. • Licensee is responsible to ensure that it adheres to the course, facility, and equipment requirements for Esri training as found at htto://training,osri.com/astewav index.cfm?fa=trainincOotions.oateway. • Students may not use audio and/or video recording equipment within the classroom without prior written approval from Esri. Esri reserves the right to record a classroom training event for future rebroadcast. ARTICLE 4—CANCELLATION AND RESCHEDULING POLICY When a Student's place in class is filled by another person from the same organization, a Student substitution is allowed at no cost provided Esri's Customer Service department is notified three (3) business days in advance of the class start date. Should a Student substitution occur without three (3) business days' notification, an additional nonrefundable transfer and data processing fee may be assessed. A Student may transfer from one (1) scheduled Esri Learning Center class to another one (1) time at no additional charge provided Esn s Customer Service department Is notified three (3) business days In advance of the class start date. Subsequent transfers or transfers that occur without three (3) business days' notification may Incur a transfer fee. Students may cancel their enrollment in a class provided Esrl's Customer Service department is notified three (3) business days in advance. If three (3) business days' notification is not provided, Students may be charged the full Student Seat fee. If Esri is unable to conduct the training on the schedWed date, Esri will notify Licensee at least three (3) business days before the scheduled date. If cancellation of a training event is necessary due to Force Majeure, the affected party is released In full from the three (3) -business -day notification. The affected party will either reschedule the training or cancel the order without that affected party incurring any liability. E207SET Page I of 03/25/2011 12 099 ARTICLE 5 --UNIQUE TERMS FOR THE SMALL ENTERPRISE TRAINING PACKAGE • To order training, Licensee must include training in the Purchase Order for the ELA or provide a Purchase Order as required and specified within the ELA that matches the Esri quotation. • Where Licensee submits additional Purchase Orders to purchase training days for additional year(s), any unused training days will automatically roll over. • A Purchase Order is required annually for each three (3) -year term. Failure to submit annual Purchase Orders will result in the forfeit of unused training days. • Licensee must assign an individual within its organization to the role of Training Administrator to serve as liaison between Licensee's organization and Esri as well as internally manage and authorize allocated training days. • The training days are available for a period of twelve (12) months, commencing on the purchase Effective Date, and ending when all training days are consumed, whichever is sooner. • Esri will invoice for outstanding training expenses where applicable. • Training days are not transferable and not refundable for any other Esri products or services. ARTICLE f3 --RESERVATION OF OWNERSHIP AND GRANT OF LICENSE Except as specifically granted In this Agreement, Esri and/or its licensors own and retain all right, title, and interest in software, data, documentation, and training materials. ARTICLE 7 -WARRANTY 7.1 Esri will provide training in a manner consistent with the technical and professional standards of the industry. 7.2 Disclaimer of Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, AND NONINFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE TRAINING IS ERROR FREE, ARTICLE 8—LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY EXCEPT FOR INDEMNITY ASSOCIATED WITH CLIENT SITE TRAINING, IN NO EVENT SHALL ESRI BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR TRAINING; LOST PROFITS; LOST SALES; BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PORTION OF THE TRAINING UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE "CC INAPPLICABILITY Training provided under this Agreement will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. E207SET Page 2 of 2 03/25/2011 12 099 MEMORANDUM To: City Council From: Arthur B. Morgan, City Engineer — Director of Public Services Subject: Proposed Continuation of GIS License and Maintenance Agreement with ESRI Date: February 27, 2012 The City is currently mapping and inputting data into our GIS system, which is provided by ESRI. ESRI is the industry leader in the GIS field. They are the sole provider of GIS software of this caliber. Our current license and service agreement expires at the end of this month. ERSI is asking for a three year commitment from the City at the current fixed rate of $35,000 per year. It is the City's long-term plan that the current GIS system will serve the Assessing, Airport, Code, Community and Economic Development, Fire, Planning, Police, Public Services, and Risk Management Departments. Our current license agreement provides access to this program for all of these departments, as well as any other departments which may need to use it in the future. A cost analysis performed when this software was purchased showed that purchasing this software at this rate, as opposed to purchasing individual licenses, will save the City money over a five-year period. Staff recommends that the City Council authorize the City Manager to extend our current agreement with ESRI three more years.