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October 1, 2004 William Tharp City of Miami Miami Riverside Center 444 S.W. 2nd Ave Miami, FL 33130 Subject: ESRI Sole Source Justification for Geographic Information System Software and Maintenance Dear <Mr. Tharp: This letter confirms that ESRI, as owner and manufacturer, is the only source from which all ESRI® software and maintenance services can be ordered. ESRI is the sole domestic source for the purchase of the following software licenses: ArclnfoTM, Arclnfo Workstation extensions (ArcNetworkTM, ArcCOGOTM, and ArcScanTM), ArcEditorTM, ArcGIS Server', ArcGIS Server extensions (Spatial Option, 3D Option and StreetMap Option), ArcSDETM, ArcGIS Schematics, NetEngineTM, ArcGIS Maplex, Maplex 3.x, Military Overlay Editor (MOLETM), GIS Data ReViewer, ArcWeb Services, ArcGIS Engine, Engine extensions, and Engine Runtimes ESRI is the sole domestic provider of software maintenance for all ESRI software (technical support plus ESRI software updates/upgrades) except for PC ARC/INFO, Data Automation Kit, ArcLogistics Route, and Business Analyst. ESRI distributes certain software licenses through valued added resellers and distributors, excluding those listed above. ESRI is also the sole source of certain proprietary training courses. If you have further questions, please feel free to call our Contracts Department at 909-793-2853, extension 1550. Sincerely, Susan Hokanson Contract Specialist J-8933/KMM 6/24/02 ESR! 380 New York St., Redlands, CA 92373-8100, USA • TEL 909.793-2853 • FAX 909-793-5053 • E-MAIL info©esrlcom • WEB www.esrl.com ESRI, 380 New York St., Redlands, CA 02373-8100 USA • TEL 809-783-2853 • FAX 908-793-5953 MASTER AGREEMENT This Master Agreement ("Agreement") is between the City of Miami, Florida, a municipal corporation of the State of Florida ("Licensee" or "Client") and Environmental Systems Research Institute, Inc. ("ESRI") a State of California for -profit corporation, registered with the State of Florida. The Agreement enables Licensee to acquire ESRI geographic information system Software, services, Documentation, Data, or hardware over a period of five (5) years . The parties acknowledge that they have read and understand this Agreement and agree to be bound by the terms and conditions contained herein. Licensee may only use the type and number of copies of the Software, Data, and Documentation for which the appropriate license fees have been paid to ESRI in accordance with this Agreement. This Agreement is comprised of the following documents: 1. Master Agreement signature page 2. General License Terms and Conditions, Version E200M 5/04 3. ESRI Exhibit 1, Scope of Use, Version E300M 5/04 4. ESRI Master Agreement Terms and Conditions, Version E500 4/04B 5. ESRI Master Agreement Price List, Version E405 7/04 6. ESRI Client Site Training Terms and Conditions, E207 1/02 7. Exhibit 2, Certification of Deinstallation, Discontinued Use of, or Destroyed 8. Custom Software, Technical Data, and Assistance License Addendum, Version E600 5/04, including Attachment A Sample Task Order and Attachment B — Time and Materials Rate Schedule (8410) 9. Exhibit 3, ESRI Training Rate Schedule This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating to such subject matter. Any modification(s) or amendment(s) to this Agreement must be in writing and signed by an authorized representative of each party. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and effective as of the last date written below. Page 1 of 2 E100 5/04B V9-28-04 ATTEST: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (ESRI) By: By: Corporate Secretary Authorized Signature Printed Name: Printed Name: Title: Date: ATTEST: CITY OF MIAMI, FLORIDA Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez Dania F. Carrillo City Attorney Risk Management Administrator Page 2 of 2 E100 5/04B GENERAL LICENSE TERMS AND CONDITIONS (E200M 5/04) ESRI, 380 New York St., Redlands, CA 02373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE 1--DEFINITIONS Definitions —As used herein, the following words, phrases, or terms in this Agreement shall have the following meanings: (a) "Software" means the actual copy of all or any portion of ESRI's proprietary geographic information system (GIS) software technology, computer software code, components, dynamic link libraries (DLLs), and programs delivered on any media, including, but not limited to, alpha, beta, prerelease, restricted version(s), or final commercial release provided in source, object, or executable code format(s), inclusive of backups, updates, or merged copies permitted hereunder or subsequently supplied under this Agreement. (b) "Data" means any ESRI or third party data vendor(s) digital data set(s) including, but not limited to, geographic, vector data coordinates, raster, or associated tabular attributes in ESRI® GIS software compatible format(s) supplied under this Agreement. (c) "Documentation" means all of the printed and digital materials including, but not limited to, user documentation, training documentation, or technical information and briefings supplied under this Agreement. (d) "License Manager" means the nondestructive license management software program or hardware key, or similar copy protection mechanism, which controls the distribution of the licensed number of Software copies to requesting end user(s) of Licensee. (e) "Force Majeure Event" shall mean an event that satisfies each of the following conditions: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non- performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or intergovernmental body other than a party hereto; or any other act or condition beyond the reasonable control of the non -performing party. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP The Software, Data, and Documentation are owned by ESRI and its licensor(s) and are protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights. ESRI and its licensor(s) retain all rights, title, and ownership not granted herein to all copies of the Software, Data, and Documentation licensed under this Agreement. From the date of receipt, Licensee agrees to use reasonable effort to protect the Software, Data, and Documentation from unauthorized use, reproduction, distribution, or publication. All rights not specifically granted in this Agreement are reserved to ESRI and its licensor(s). ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License —In consideration of the mutual promises and covenants provided herein and for other good and valuable consideration, and conditioned upon compliance with all of the terms and conditions set forth in the Agreement including, but not limited to, Article 4, ESRI grants to Licensee a personal, nonexclusive, nontransferable license to (a) Use the Software, Data, and Documentation as a single package for Licensee's own internal use only; and (b) Access and use any secure ESRI Web site resources made available to Licensee for Licensee's internal use only, provided that Licensee follows ESRI's terms of use policy specified therein. All password or controlled access information provided by ESRI shall be treated as ESRI confidential information. 3.2 Beta License —In the event ESRI accepts Licensee into a current Beta Testing program, Licensee may be provided copies of alpha, beta, and/or prerelease (hereinafter collectively referred to as "Beta") Software for the limited purpose of testing the Beta Software in accordance with the Beta testing policies then in effect. Beta Software and Documentation delivered are confidential and proprietary to ESRI and contain trade secrets, inclusive of unpublished specifications. In consideration of the ESRI is a trademark, registered trademark, or service mark of ESRI in the United States, the European Community, or certain other jurisdictions. Page 1 of 5 E200M 5/04 V09-27-04 rights granted herein, Licensee agrees to retain all Beta Software and Documentation provided to Licensee in confidence. Licensee shall maintain all results of testing in confidence and agrees not to disclose to any third party details pertaining to the Beta Software, Documentation, test results, or errors encountered. ESRI reserves the right to determine which Beta Software and Documentation, subsequent interim beta release(s), or patch(es) will be made available to Licensee to test during the term of the Agreement. Beta Software is subject to change prior to its commercial release and may never be commercially released. Licensee is advised that such Software is not suitable or licensed for full use and accepts all responsibility for use of the same and any results generated. 3.3 Evaluation License—ESRI may from time to time extend a limited term evaluation license(s) under the terms of this Agreement, for the duration authorized in any supporting documentation supplied by ESRI. Any evaluation license subsequently converted to a full use license is also subject to the terms of this Agreement. 3.4 Consultant Access —Licensee may provide access to the Software, Data, or Documentation to any consultant or contractor of Licensee, provided that the consultant or contractor is using the Software, Data, or Documentation exclusively for the benefit of Licensee. Licensee shall be responsible for compliance by consultants or contractors with the terms and conditions of this Agreement. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses (a) Licensee may (i) install and store copies onto electronic storage device(s) and (ii) only use the Software, Data, and Documentation as described in Exhibit 1 set forth herein and in accordance with the licensed configuration on file with ESRI Customer Service. (b) Licensee may make one (1) copy of the Software, Data, and Documentation for archival purposes during the term of this Agreement. Additionally, Licensee may make routine computer backups of Software, Data, and Documentation and implement a redundant Software installation for failover operations during the period the primary site is not operational. The redundant Software installation shall remain dormant except for system maintenance and updating of databases while the primary site is operational. (c) Licensee may customize the Software using any (i) macro or scripting language, (ii) open 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 the Data only as described in the Distribution Rights section of the help or metadata files delivered with the Software, Data, and Documentation, or subject to the third party Data vendor's terms. (e) 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. The portion(s) of the Documentation supplied in digital format merged with other software and printed or digital documentation shall continue to be subject to the terms and conditions of this Agreement and shall provide the following copyright attribution notice acknowledging the proprietary rights of ESRI and its licensor(s) in the Documentation supplied in digital format: "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) Licensee shall not sell; rent; lease; sublicense; lend; assign; time-share; or act as a service bureau or Application Service Provider (ASP) that allows third party access to the Software, Data, and Documentation except as provided herein; or transfer, in whole or in part, access to prior or present versions of the Software, Data, or Documentation, any updates, or Licensee's rights under this Agreement. (b) Licensee shall not redistribute the Software developer license authorization file(s). (c) Licensee shall not redistribute the Software, in whole or in part, including, but not limited to, extensions, components, or DLLs without the prior written approval of ESRI as set forth in an appropriate redistribution license agreement. (d) Licensee shall not reverse engineer, decompile, or disassemble the Software, Data, or Documentation, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction in order to protect ESRI and its licensor(s) trade secrets and proprietary information contained in the Software, Data, or Documentation. (e) Licensee shall not make any attempt to circumvent the technological measure(s) (e.g., License Manager, etc.) that controls access to or use of the Software, Data, and Documentation, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction. (f) Licensee shall not use the Software to transfer or exchange any material where such transfer or exchange is prohibited by copyright or any other law. Page 2 of 5 E200M 5/04 (g) (h) 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 Software, Data, or Documentation. After a reasonable transition period for updating to the most current version of the Software, Licensee shall cease using all prior version(s) of the Software that Licensee has elected to update to the most current version(s) of the Software. When the transition to the most current version(s) of the Software is complete, the quantity of Software licenses in use by Licensee at any given time shall not exceed the total quantity licensed by ESRI in accordance with the licensed configuration on file with ESRI Customer Service. ARTICLE 5—MAINTENANCE Maintenance consists of Software, Data, or Documentation updates and access to technical support and other benefits specified in the most current applicable ESRI Support Services Policy. ARTICLE 6—TERM AND TERMINATION The license granted to Licensee by this Agreement shall commence upon the acceptance of this Agreement and shall continue until such time that (i) Licensee elects in writing to discontinue use of the Software, Data, or Documentation and terminates this Agreement or (ii) either party terminates this Agreement for a material breach that is not cured within ten (10) days of written notice to the other party, except that termination is immediate for a material breach of a nature that it is impossible to cure. Upon termination of this Agreement, Licensee shall uninstall, remove, and destroy all Software, Data, and Documentation, and any whole or partial copies, modifications, or merged portions in any form and execute and deliver evidence of such deinstallation and destruction to ESRI as set forth in Exhibit 2. ARTICLE 7—LIMITED WARRANTIES AND DISCLAIMERS 7.1 Limited Warranties —For a period of ninety (90) days from the later of the date of keycode issuance or date of delivery of the Software, Data, or Documentation to Licensee, ESRI represents and warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) the media upon which the Software, Data, and Documentation is provided will be free from defects in materials and workmanship under normal use and service. 7.2 Data Disclaimer --If included under this Agreement, the Data has been obtained from sources believed to be reliable, but its accuracy and completeness are not guaranteed. The Data may contain some nonconformities, defects, errors, or omissions. ESRI AND ITS LICENSOR(S) MAKE NO WARRANTY WITH RESPECT TO THE DATA. Without limiting the generality of the preceding sentence, ESRI and its licensor(s) do not warrant that the Data will meet Licensee's needs or expectations, the use of the Data will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensor(s) are not inviting reliance on this Data, and Licensee should always verify actual Data including, but not limited to, map, spatial, raster, and tabular information. 7.3 General Disclaimer —EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. ESRI DOES NOT WARRANT THAT THE SOFTWARE, DATA, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS, OR THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT BETA AND EVALUATION SOFTWARE IS DELIVERED "AS -IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA AND EVALUATION SOFTWARE. 7.4 Exclusive Remedy --Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this Article 7 shall be limited, at ESRI's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a work -around for the Software subject to the ESRI Support Services Policy; or (iii) return of the license fees paid by Licensee for the Software, Data, or Documentation that does not meet ESRI's Limited Warranty, provided that Licensee uninstalls, removes, and destroys all copies of the Software, Data, or Documentation and executes and delivers Exhibit 2. ARTICLE 8—LIMITATION OF LIABILITY 8.1 Disclaimer of Certain Types of Liability —IN NO EVENT SHALL ESRI OR. ITS LICENSOR(S) BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST Page 3 of 5 E200M 5/04 SALES OR BUSINESS EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SOFTWARE, DATA, OR DOCUMENTATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND 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. 8.2 General Limitation of Liability —IN NO EVENT WILL ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID TO ESRI BY LICENSEE FOR SOFTWARE, DATA, OR DOCUMENTATION PURSUANT TO THIS AGREEMENT. 8,3 Applicability of Disclaimers and Limitations —Licensee agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Licensee has accepted the Software, Data, or Documentation or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. ARTICLE 9—INFRINGEMENT INDEMNITY 9.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any Toss, 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, Data, or Documentation infringes a U.S. patent, copyright, or trademark provided (a) Licensee promptly notifies ESRI in writing of the claim thereof; (b) ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and (c) Licensee cooperates fully in the defense of the claim. 9.2 If the Software, Data or Documentation is or ESRI believes that the Software, Data, or Documentation will become the subject of an infringement claim, or in the event that use of the Software, Data, or Documentation is enjoined, ESRI, at its own expense, may either (i) obtain the right for Licensee to continue using the Software, Data, or Documentation or (ii) modify the Software, Data, or Documentation to make it noninfringing while maintaining substantially similar software functionality or data/informational content. If neither of such alternatives is commercially practical, the infringing items shall be returned to ESRI and ESRI's sole liability shall be to refund license fees paid by Licensee prorated on a twenty percent (20%) per year straight line depreciation basis over a five (5) year period from the initial date of delivery. 9.3 ESRI shall have no obligation hereunder to defend Licensee or to pay any resulting costs, damages, or reasonable attorneys' fees for or with respect to any claims, actions, or demands alleging (i) infringement that arises by reason of combination of noninfringing items, however acquired, with any items not supplied by ESRI; (ii) infringement to the extent arising from material alteration of the Software, Data, or Documentation by anyone other than ESRI, its agents, or its contractors; (iii) the direct or contributory infringement of any process patent by Licensee through the use of the Software, Data, or Documentation other than a process patent that is necessarily infringed by the internal processes executed within the Software or Data itself when the Software or Data is executed for its intended purpose; (iv) continued allegedly infringing activity by Licensee after it has been notified of the possible infringement; or (v) continued allegedly infringing activity by Licensee to the extent it arises from failure of Licensee to use the updated or modified Software, Data, or Documentation provided by ESRI for avoiding infringement. 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 10—GENERAL PROVISIONS 10.1 Future Orders —Licensee may place orders for Software, Data, Documentation, or maintenance for a period of five (5) years of this Agreement's execution date and such Software, Data, Documentation or maintenance shall be licensed under the terms of this Agreement, except that new Software, Data, and Documentation commercially released during that year may Page 4 of 5 E200M 5/04 require additional terms which shall be mutually agreed to in writing by the parties Any changes to the terms of this Agreement shall be mutually agreed to in writing by both parties. 10.2 Export Control Regulations —Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, or provide the Software, Data, or Documentation, in whole or in part, to (i) any country to which the United States has embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control law or regulation. Licensee shall not export the Software, Data, and/or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Licensee represents and warrants that it is not a national, resident, located in or under the control of, or acting on behalf of any person, entity, or country subject to such U.S. export controls. 10.3 Commercial Terms and Conditions —This Agreement contains ESRI's commercial terms and conditions. Licensee's rights in the Software, Data, and Documentation are strictly limited to the uses granted by this Agreement pursuant to FAR 12.211, FAR. 12.212, and DFARS 227.7202. In the event any court, arbitrator, or board holds that the U.S. Government has greater rights to any portion of the Software, Data, or Documentation, such rights shall extend only to the portion(s) affected and use, duplication, or disclosure by the U.S. Government is subject to restrictions as provided in FAR 52.227-19 (June 1987), FAR 52.227-14 (ALT III) (June 1987), DFARS 252.227-7015 (NOV 1995), or NFS 1852.227-86 (December 1987), as applicable. No other license terms or conditions shall apply unless expressly agreed in writing by ESRI and Licensee. ESRI Software is unpublished and all rights reserved under copyright laws of the United States. 10.4 Shipping Charges —License fees quoted to Licensee are exclusive of shipping and handling charges. I0.5 No Implied Waivers —The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 10.6 Severability—The parties mutually agree that if any provision of this Agreement 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. 10.7 Counterparts —This Agreement may be executed in counterparts, all of which, taken together, shall be deemed one (1) original document. 10.8 Successor and Assigns —Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void. This Agreement shall be binding upon the respective successors and assigns of the parties to this Agreement. 10.9 Survival of Terms —The provisions of Articles 6, 7, 8, 9, and 10 of this Agreement shall survive the expiration or termination of this Agreement for any reason. 10.10 Equitable Relief —Licensee agrees that any breach of this Agreement by Licensee 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 to prevent violation of these terms and without the requirement of posting a bond or undertaking or proving injury as a condition for relief. 10.11 Governing Law -Licensees in the United States of America, Its Possessions, and Territories —This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, in Miami -Dade County, without reference to conflict of laws principles. 10.12 Additional Provisions — The entire sum of Article 12 of the Master Agreement Terms and Conditions, Version E500 4/04B shall be included as part of the General License Terms and Conditions, Version E200M 5/04 document. Page 5 of 5 E200M 5/04 ESRI EXHIBIT 1 SCOPE OF USE (E300M 5/04) ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 The scope of use for each ESRI Software identified below is described in the applicable footnotes listed in parentheses. • ArcGIS Desktop - ArcReader (1 and 19) - ArcView (1, 2, and 6) - ArcEditor (1, 2, and 6) - Arclnfo (2 and 6) - Extensions (1, 2, and 6) - Arclnfo Workstation Extensions (2 and 6) • ArcGIS Schematics SDK (1, 4, 12, and 16) • ArcGIS Business Analyst (1, 2, 15, and 21) • ArcGIS Engine - ArcGIS Engine Developer Kit (1 and 23) - ArcGIS Engine Runtime (1, 4, 12, and 23) - ArcGIS Engine Options (Spatial Analyst, 3D Analyst, Geodatabase (GDB) Update, StreetMap) (1, 4, 12, and 23) • ArcGIS Server - ArcGIS Server Base License (1, 3, 5, 7, and 24) - ArcGIS Server Options (Spatial Analyst, 3D Analyst, StreetMap) (1, 3, 5, 7, and 24) • ArcSDE - ArcSDE Server (I, 3, 5, 7, and 18) - ArcSDE for Coverages (3, 5, 7, and 18) - ArcSDE Connections (2, 7, and 18) • ArcIMS - ArcIMS and Extensions (I, 3, 5, 6, 7, 12, and 15) - ArcIMS ArcMap Server (1, 3, 5, 7, and 12) - RouteMAP IMS (1, 3, 5, 7, and 12) • ArcView GIS 3.x - ArcView and Extensions (1) - ArcView Business Analyst (1, 15, and 21) • ArcLogistics Route (1, 8, and 15) • PC ARC/INFO (1) • Maplex (1) • MOLE (1) • MOLE SDK (1, 4, and 12) • BusinessMAP (1 and 15) • ArcPad (1, 9, and 10) • ArcPad StreetMap (1, 9, and 20) • ArcPad Application Builder (1) • MapObjects-Windows Edition (1, 4, 11, 12, and 16) • MapObjects-Java Edition (1, 3, 4, 5, 12, 16, and 17) • MapObjects LT (1, 4, 12, and 13) • ArcExplorer (1 and 19) • NetEngine (1, 5, and 12) • NetEngine Internet (3, 5, and 13) • Production Line Tool Set (PLTS); GIS Data ReViewer; Job Tracking for ArcGIS (1) • Data Sets (1 and 15) 1. "Single use license" means a license must be dedicated for each computer or network access point that has use rights for the Software, Data, or Documentation. Licensee may make a second copy for Licensee's exclusive use on a portable computer so long as only one (1) copy of the Software, Data, and Documentation is in use at any one time. 2. "Concurrent use license" means a license that permits execution of the Software on any computer on the network. The number of simultaneous/concurrent users may be controlled by a License Manager to access and use the Software, Data, or Documentation. 3. "Server license" means a license for the server -side Software that resides on a server computer and provides services to multiple users in a client/server distributed computing environment. 4. A " Stand-alone Redistribution license" grants the right to Licensee to redistribute a stand-alone application to end users, provided the application is installed on each computer on which the application is run (also known as a "Stand-alone Deployment license"). The Stand-alone Redistribution license requires payment of redistribution or deployment fees, except for MapObjects LT. 5. A "Server Deployment license" grants the right to Licensee to redistribute an application via a network, the Internet, or Intranet to end users of the application (also known as an "Internet Redistribution license"). The Server Deployment license does not require payment of additional deployment or redistribution fees, except for MapObjects-Java Edition. 6. Extensions or Options to Software programs follow the same scope of use as that granted for the corresponding Software programs. For example, if you order an Arclnfo extension, then that extension is also licensed for concurrent use. 7. The ArcGIS Server, ArcIMS, ArcSDE and MapObjects-Java Edition (collectively Server Software) licenses are licensed per Server/CPU and include the right to develop, test, and deploy applications to end users. Additional CPU licenses, Developer licenses, and Development and Testing Server Licenses are available for a fee. All Developer licenses are Single Use licenses. Licensee shall not use a Developer license or a Development and Testing Server license to deploy applications for production use by end users. Licensee may use the Server Software to test and deploy Page 1 of 4 E300M 5/04 V09-27-04 applications on the Internet provided the source and object code are not accessible to users of the application. Except for ArcGIS Server, the Server Software administration tools may be copied and redistributed throughout Licensee's organization. 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. 8. ESRI and its licensor(s) grant Licensee a nonexclusive, nontransferable, limited license to use, copy, and prepare derivative works by (a) Translating "alroute.mld" (hereinafter "Dictionary") from the original text in the English language; (b) Editing Geographic Data Technology (GDT) Data included within ArcLogistics Route; and (c) Adding Data (owned by Licensee or others) to ArcLogistics Route Software. The license grant is conditioned as follows: (a) The derivative works are for Licensee's internal use only; (b) ESRI and its licensor(s) retain all exclusive right, title, and interest in and benefits from the derivative works, except Data owned by Licensee or others; and (c) Licensee expressly waives and relinquishes any and all ownership including, but not limited to, copyright, moral rights, or any other statutory or common law claims to the derivative works, except for Data owned by Licensee or others. Licensee shall not translate, modify, or edit in any way the software name "ArcLogistics Route," software logo, any third party software, any text other than the Dictionary, or any Data other than GDT's. The amount of Data used by Licensee is limited by Data credits purchased. Additional license fees are required if ArcLogistics Route with Data is to be accessed by more than one (1) ArcLogistics Route license. 9. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 10. This is a "Dual Use License," meaning the Software may be installed on a desktop computer and may be used simultaneously with either a Personal Digital Assistant (PDA) or handheld mobile computer provided that the Software is only used by a single individual at any one (1) time. 11. Licensee shall not redistribute or disclose the MapObjects developer license file (*.lie). Developers must attribute as follows: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright CO 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." 12. Redistribution rights for standard or Internet application(s) may be subject to payment of additional license fees. Other restrictions notwithstanding, Licensee may redistribute commercial applications to its sublicensee(s) provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software, Data, and Documentation to the same extent as the ESRI License Agreement, and that includes the following terms, as a minimum: (a) Sublicensee may not reverse engineer, decompile, or disassemble the ESRI Software, Data, or Documentation, except to the extent permitted by applicable law, copy for commercial use, transfer, or assign its rights under the license grant; and (b) Sublicensee may not use any ESRI Software, Data, or Documentation, in whole or in part, separate from Licensee's executable application. (c) Third party dependent or required components are redistributable subject to permission from the owner or author. 11 Subject to an annual renewal fee. 14. [Reserved] 15. For ESRI branded Data, unless there is a statement to the contrary in the metadata, Licensee may use, copy, reproduce, publish, publicly display, or redistribute map images derived from the Data in hard -copy or static, electronic formats (i.e., .gif, .jpeg, etc.), provided that Licensee affixes an attribution statement to the map images acknowledging ESRI or its licensors as the source of the portion(s) of the Data displayed, printed, or plotted. For third -party branded Data, the right to use, reproduce, and redistribute shall be subject to the third -party Data vendor's data license agreement. The Data shall not be used separately from ESRI Software. 16. The Redistribution Stand-alone (or Deployment) license is per application per computer. For MapObjects---Windows Edition, Internet or Intranet Deployment requires an ArcIMS Internet Deployment License. Except for ArcIMS licenses, one (1) Internet Deployment license is required for each ArcIMS server/CPU that runs Web mapping applications built with MapObjects—Windows Edition. For MapObjects—Java Edition, Internet or Intranet Deployment requires a Page 2 of 54 E300M 5/04 MapObjects—Java Internet Deployment License. An application upgrade is not a redeployment as long as it uses the same major revision of ArcGS Schematics SDK, MapObjects—Windows Edition, or MapObjects—Java Edition. 17. The MapObjects Java Edition contains Java Archive (JAR) files, which indicate they are authentic ESRI-certificated files when used over the Internet. Any Licensee certificate placed on the modified "re jarred" files cannot reference ESRI as a source of trusted content. In addition to any other rights and restrictions in the Agreement, Licensee may use the MapObjects—Java Edition on a single computer to (a) Build applet(s) that are used only as an internal component in end user interfaces, and to copy the applet(s) to additional computers (e.g., Web Server) from which Licensee may deploy the applet(s) to end users via download in the course of browsing or interacting with Licensee's Web pages. End user redistribution of the applet(s) is not allowed; and (b) Build stand-alone Java Applications. Licensee may deploy the Java class ESRI certificated libraries as an integral part of Licensee's application(s); and (c) Build servlcts and/or Enterprise JavaBeans with MapObjects—Java components, requiring a MapObjects—Java Internet Deployment License for each CPU; and (d) Distribute MapObjects Java applets, provided (i) Licensee's Web pages or software application(s) is targeted at end users and not as a development tool; (ii) Licensee does not use ESRI's name, logos, or trademark to market Licensee's Web pages or application(s); and (iii) Licensee includes a valid Licensee copyright notice on Licensee's Web pages and software application(s). 18. ArcSDE is licensed on a Server/CPU basis and on a one-to-one basis with a relational database, meaning Licensee shall run ArcSDE on a Server on a one-to-one basis with a database Server. In most implementations ArcSDE and the database are installed on the same Server. Each ArcSDE Server license enables the customer to have multiple ArcSDE instances if they have multiple database instances on the corresponding database Server. Licensee shall not install ArcSDE instances on more than one Server and shall not use the network to connect from the Server on which ArcSDE is installed to databases on more than one (1) Server. ArcSDE Single Use licenses are available only for use with ArcEditor Single Use Software licenses on a one-to-one basis. ArcSDE direct connections run on a client desktop computer are also Single Use licenses. ArcSDE for Coverages is licensed only in conjunction with concurrent use licenses of ArcView, ArcEditor, Arclnfo, ArcSDE Server, or ArcIMS Software. Licensee may use the ArcSDE for Coverages subject to this Agreement. ArcSDE for Coverages is not licensed separately, but may be distributed separately. 19. Licensee may reproduce and redistribute the ArcReader and/or ArcExplorer Software provided all of the following occur: (a) The ArcReader or ArcExplorer Software is reproduced and redistributed in its entirety whether as a stand-alone application or as an embedded GIS viewing tool on Licensee's own deliverable; (b) An Agreement accompanies each copy of the ArcReader or ArcExplorer Software that protects the ArcReader or ArcExplorer Software to the same extent as the ESRI License Agreement, and the recipient agrees to be bound by the terms and conditions of the Agreement; (c) All copyright and trademark attributions/notices are reproduced; and (d) There is no charge or fee attributable to the use of the ArcReader or ArcExplorer Software. 20. Data provided with ArcPad StreetMap may be used for mapping, geocoding, and routing purposes but may not be used for dynamic routing purposes. Dynamic routing or "real-time guidance" is predictive routing and is not included in the ArcPad StreetMap functionality. For instance, ArcPad StreetMap may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or calculating an alternate route if a turn is missed. 21. Subject to the Permitted Uses described below, the Data provided with Business Analyst shall not be used separately from the Software. Use of the Data provided with Business Analyst shall be subject to Footnote 15 above and are hereby supplemented by adding the following terms and conditions: "Permitted Uses: (a) In conjunction with the permitted uses described in Footnote 15, Licensee is granted permission to include resultant maps, reports, or other data output derived from Business Analyst only as part of Licensee's value- added products andlor services (e.g„ Licensee's client reports, presentation packages, marketing studies, etc.) to current or prospective clients, so long as the resultant maps, reports, or other data output derived from Business Analyst comprises less than twenty percent (20%) of the total content value of the Licensee's client reports, presentation packages, or marketing studies. Page 3 of -54 E300M 5/04 Uses Not Permitted: (a) Licensee shall not sell; rent; lease; sublicense; lend; assign; time-share; or act as a service bureau or Application Service Provider (ASP) of full, complete, stand-alone reports, maps, or data output created from Business Analyst without first entering into an appropriate reseller-type agreement with ESRI. (b) Unless Licensee has separately licensed a copy of ESRI BIS Coder, Community Coder, or ESRI BIS Data that permits appending of the ACORN or Community segmentation codes, Licensee shall not use the Data provided with Business Analyst to assign or append ACORN or Community segmentation codes to addresses or geographical data not included in Business Analyst. (c) Licensee shall not use, copy, redistribute, display, rebroadcast, or otherwise retransmit the Software or Data provided with Business Analyst on the Internet without first entering into an appropriate Internet/Intranet Deployment -type agreement with ESRI. (d) Licensee shall not withhold any substantial right (e.g., extension of credit) from any individual based solely on the ACORN or Community market segmentation systems type of said individual's place of residence." 22. [Reserved] 23. The ArcGIS Engine Developer Kit grants the right to develop an unlimited number of applications on a single computer and to deliver the applications with or without the Engine Runtime Software to end users. The ArcGIS Engine Developer Kit licenses and Engine Runtime licenses may be licensed independent of the other. Licensee shall not redistribute the Engine Developer Kit authorization file. The Engine Runtime licenses shall not be used for development of Engine applications. Internet Deployment is not permitted. 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 unlimited number of ArcGIS Engine Developer Kit applications on one (I) computer. The ArcGIS Engine Runtime Options shall not be used in combination with ArcGIS Software to run ArcGIS Engine applications. Developers must attribute as follows: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright © 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." 24. ArcGIS Server requires ArcSDE and an ArcGIS Desktop License (ArcInfo, ArcEditor, or ArcView), licensed separately. The ArcGIS Server Base License includes the GIS Server and the Application Developer Framework (ADF). The ArcGIS Server options or extensions are the ArcGIS Server Spatial Option, ArcGIS Server 3D Option, and the ArcGIS Server StreetMap USA Option. An ArcGIS Server standard license includes the right to install and run the .NET or Java ADF on one (1) developer computer for the purposes of developing Web applications and services. General Notes: A. Use of ESRI Software, Data, or Documentation in a commercial Application Service Provider (ASP) business model is subject to execution of a written ASP license agreement and the payment of the appropriate additional license fees. For purposes of this Agreement, a commercial ASP means a Licensee who uses ESRI Software, Data, or Documentation for a site or service, operates the site or the service for a profit, and generates revenue by charging for access to the site or service (by selling data, pay -per -view, subscription fee, or similar means). B. ESRI does not permit a Licensee to make the ESRI Software, Data, or Documentation accessible to third parties for remote geoprocessing or on a global server for access by foreign affiliates or other third parties. I Page 4 of 54 E300M 5/04 ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ESRI MASTER AGREEMENT TERMS AND CONDITIONS (E500 State and Local) ARTICLE 1--DEFINITIONS As used herein, the following words, phrases, or terms in this Master Purchase Agreement ("Agreement") shall have the following meanings: "Licensee" means the governmental body that has signed this Agreement or an Authorized Entity that has accepted the terms and conditions of this Agreement. "Authorized Entity" means a political subdivision of the governmental body authorized by the contracting governmental body to order and acquire Software, Data, Documentation, products, or services through this Agreement. "Force Majeure Event" shall mean an event that satisfies each of the following conditions: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non -performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or intergovernmental body other than a party hereto; or any other act or condition beyond the reasonable control of the non -performing party. ARTICLE 2—TERM OF AGREEMENT The Licensee's right to purchase under this Agreement shall remain in effect for five (5) years from the effective date unless terminated earlier as prescribed in Article 5—Termination; Cancellation. At the end of the initial five (5) year term, the parties may negotiate a new term and pricing based on mutual agreement. The term of any Software or Data licenses ordered through this Agreement shall be as stated in the General License Terms and Conditions, ESRI may elect to not renew the Agreement should total orders for licenses, training, consulting, and custom application development not exceed an average of one hundred thousand dollars ($100,000.00) per any two (2)-year period. ARTICLE 3—PRODUCT OFFERINGS ESRI may, at its sole discretion, discontinue offering any Software, Data, other product, or service included in this Agreement at any time upon thirty (30) days written notice. ESRI may, at its sole discretion, offer new Software, services, Data, Documentation, hardware, or reduced and/or larger quantity discount pricing by providing written notice. ESRI may require additional license terms prior to use of new Software or Data. Such notice shall become part of this Agreement upon (i) ordering Software, hardware, or services covered by the notice or (ii) thirty (30) days after Licensee's receipt of notice, whichever is sooner. Licensee may object in writing to the notice prior to the occurrence of items i or ii. Any objections or changes to the notice shall require written agreement of both parties. ARTICLE 4—GRANT OF LICENSE AND SCOPE OF USE The license grant and permitted uses specified in Article 3 and Article 4 of the General License Terms and Conditions (E200) are restricted to use within the United States of America, its possessions, and territories. For Internet mapping Software, the server must be located within the United States of America, its possessions, and territories. Page 1 of57 E500 4/04B V9-30-04 ARTICLE 5—TERMINATION; CANCELLATION 5.1 Termination This Agreement may be terminated with or without cause by either party upon forty-five (45) days' written notice. Should the notice specify termination for cause, the recipient of the notice shall have fifteen (15) days in which to correct or cure any default or defect in performance. On termination of this Agreement, all accounts and payments will be processed according to financial arrangements set forth herein for performance rendered to the date of termination. After termination, Licensee shall no longer be permitted to place orders under this Agreement. ESRI, at its sole election, may terminate the right of any Authorized Entity to participate in this Agreement in accordance with this provision without terminating the Agreement with respect to the governmental body or any other Authorized Entity. 5.2 Cancellation Purchase orders, other than for the initial purchase, may be canceled by the Licensee in whole or in part, upon forty-five (45) days' written notice to ESRI. There will be no cancellation charge for canceled Software unless the Software has been delivered. If the Software has been shipped, the cancellation will require Licensee payment of return shipping costs. Licensee has the right to cancel hardware purchases forty-five (45) days prior to scheduled delivery without cost. After hardware delivery or within forty-five (45) days of scheduled delivery, cancellation of the hardware purchase is subject to a manufacturer cancellation charge not to exceed thirty-five percent (35%) of hardware list price. 5.3 Deficiency Action Without prejudice to any other right or remedy available to ESRI, ESRI may terminate this Agreement provided Licensee is given thirty (30) days prior notice to cure deficiency. a. If Licensee fails to pay any license fees to ESRI in accordance with the requirements of this Agreement; or b. If Licensee distributes ESRI® Software, Data, and Documentation to any person or entity other than a Licensee; or c. If Licensee discloses any trade secret technology and other information proprietary to ESRI in breach of this Agreement. 5.4 License. Survival Upon voluntary -termination of this Agreement for the convenience of Licensee or expiration of this Agreement, Licensee may continue to retain and use such licensed ESRI Software, Data, and Documentation in accordance with the General License Terms and Conditions; Exhibit 1, Scope of Use; and any other license terms contained herein. Licensee may then directly and separately contract for Software updates, maintenance, and/or technical support service. ARTICLE 6---NONAPPROPRIATION OF FUNDS; LIMITATION 6.1 Funding Where the financial obligations of the Licensee payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, or otherwise made available and the funds are not appropriated or otherwise available, this Agreement may be terminated as set forth in Article 5. 6.2 No Minimum Purchase Licensee does not guarantee to purchase any certain amount under this Agreement. ARTICLE 7—ORDERS 7.1 Licensee Purchase Orders Licensee shall issue purchase orders to ESRI for Software, Data, services, or hardware based on the fees specified in this Agreement. The Licensee is requested to confirm hardware pricing and model availability with ESRI prior to placement of a purchase order. The terms and conditions of this Agreement shall govern all orders issued by Licensee. Any additional or different terms included with an order shall require specific approval by ESRI via a written modification to this Agreement to be binding. 7.2 Purchase Order Requirements All purchase orders shall reference and be subject to the terms and conditions of this Agreement. ESRI is a trademark, registered trademark, or service mark of ESRI in the United States, the European Community, or certain other jurisdictions. Page 2 of ieftl6fi 7 F39OM 5/04 122 The following information/statements shall also be included in each purchase order. a. Name or identification of Licensee, place of delivery, and the end user name and contact information b. Purchase order number c. Date delivery is requested (minimum thirty [30] days after ESRI receipt of order) d. Primary site for maintenance if primary maintenance is not ordered e. Quantity, description, and unit price f On the face of the purchase order, print the following statement: "Subject to Master Purchase Agreement No. ." 7.3 Additional Quotes Licensee may request a quote for any new or unlisted Software/services and issue a purchase order under this Agreement, provided ESRI may require additional license terms for use of the new or unlisted Software. 7.4 Authorized Entity An Authorized Entity may order or acquire Software, Data, Documentation, hardware, services, updates, maintenance, or support under and subject to the terms and conditions of this Agreement. 7.5 Registration/Keycode Request To activate Software, subject to a License Manager, Licensee may be required to obtain a keycode through ESRI's Web site at myESRI.com or through ESRI's Customer Service Department. ARTICLE 8—ESRI AUTHORIZED RESELLER ORDERS Licensee may purchase ESRI Software from an authorized ESRI reseller under the terms of this Agreement. To implement this approach, the following requirements must be satisfied: • The quotation for ESRI Software and the selection of the ESRI reseller must comply with all applicable State and local public procurement laws and regulations; • The ESRI reseller must be a member of the ESRI Business Partner Program in good standing at the time the order is placed with ESRI and be authorized to provide the Software ordered as defined at ESRI Web site http://gis.esri.com/partners/index.html. Select "Resellers" to view the authorized resellers and the Software they are authorized to provide; and • The Licensee purchase order forwarded by the reseller to ESRI must list the information requested in Article 7.2, the ESRI reseller name, and the Software MPA pricing [needed because the reseller must use the MPA pricing under the MPA. If the reseller does not use the MPA pricing, then it can't use the MPA.]. If all conditions of sale under the MPA are met, ESRI will accept the order and the authorized reseller will receive a sales commission. ESRI will deliver the ESRI Software directly to the Licensee, invoice, and receive payment for any such order. If ESRI does not accept the order, the Licensee may enter into a direct transaction with the ESRI reseller, and the order will not be processed under this MPA. Upon request, the ESRI regional office will provide the Licensee with a list of authorized ESRI resellers in good standing that do business in the State. ARTICLE 9--PRICING ESRI will provide Software, Data, Documentation, maintenance, and support specified at the prices incorporated into this Agreement. The specified prices stated in the incorporated ESRI Master Agreement Price List are exclusive of shipping and installation. All prices encompassed in the ESRI Master Agreement Price List, Version E405 7/04 shall not be increased for a period of three (3) years following the execution of this Agreement with a seven and a half (7.5%) percent annual cap in years four (4) and five (5). Henceforth, the pricing for training services in the ESRI Training Rate Schedule and the Time and Materials Rate Schedule (J-7264-a/BD) are subject to annual escalations not to exceed seven and a half (7.5%) beginning in January 2005. After the initial five (5) year term of this Agreement, the prices for Software, Data, Documentation, maintenance, and updates may be escalated annually during any extension to the term of this Agreement. Page 3 o E389 15/04 6'$Ool�? 9.1 Software, Maintenance, and Support ESRI will provide technical support and maintenance services as specified by the Support Services policies described under "Support" ("Support Services Brochure") on the ESRI Web site home page at www.esri.com. 9.2 Hardware Hardware purchases will be accomplished in accordance with procedures in Article 11, Hardware Purchases. ESRI is subject to hardware vendors' price fluctuations; however, ESRI shall provide a firm quote for hardware valid for sixty (60) to ninety (90) days upon written request. Licensee shall confirm delivery dates with ESRI's hardware manager prior to placing orders. 9.3 Custom Software and Application Services ESRI Services are available on a time and materials or firm fixed price basis via a signed task order, but only if this Agreement expressly incorporates the Custom Software, Technical Data, and Assistance License Addendum (E600), including the current Time and Materials Rate Schedule (J-7264-a/BD). The E600 Addendum and the J-7264-a/BD Rate Schedule together comprise the applicable terms, staffing, and hourly labor rates (hourly rates applicable only for time and materials projects) for any such work to be performed under this Agreement. The scope of work and any additional terms are subject to mutual agreement in the task order. Information and arrangements regarding Custom Software and Application Services are available from the Implementation Services Program Manager, Craig Morgan, at 909-793-2853, ext. 1546. 9.4 Training Services Training will be provided in accordance with the policies defined under "Education and Training" at www.esri.com and the ESRI Client Site Training Terms and Conditions (E207) incorporated herein. ARTICLE 10—TERMS OF COMPENSATION AND ACCEPTANCE 10.1 Terms of Compensation Software and hardware will be invoiced one -hundred percent (100%) upon shipment. 10.2 Acceptance and Payment Software and hardware installation and training services, as applicable, will be invoiced upon completion. When ESRI installation is ordered, acceptance occurs upon completion of ESRI Software installation and testing, unless rejected in writing. Licensee agrees to pay each invoice in full within forty-five (45) days of receipt of a valid invoice. Unless rejected in writing, acceptance of any shipment of ESRI Software, Data, Documentation, and hardware shall be presumed to have occurred fifteen (15) days after receipt by Licensee. ESRI may reject any purchase order if Licensee fails or refuses to pay any license or service fee due. ARTICLE 11—HARDWARE PURCHASES 11.1 Hardware Purchase Procedures ESRI is a value-added hardware reseller. As such, ESRI is restricted from selling hardware to any user who has not licensed ESRI Software. Licensee acknowledges ESRI's representations in this regard. ESRI shall provide hardware prices by written quotation prior to issue of an order. ESRI will order hardware upon receipt of the Licensee's purchase order. 11.2 ESRI Installation of Workstation and/or Peripheral Equipment When ordered by Licensee, ESRI will provide a hardware vendor's installation service for applicable hardware ordered under this Agreement in Licensee's designated office within one hundred twenty (120) days (if possible), depending on vendor inventory/delivery schedules. Installation dates may be changed by mutual consent of ESRI and Licensee. This installation shall include the successful interfacing and testing of equipment according to standard procedures associated with each manufactured item of the system. Page 4of5 7 00M 5!A4— 11.3 Procedures at Site During the installation period, ESRI shall coordinate with the hardware vendor to guide the Licensee's systems administrator on the installation and administration of the new hardware system as it relates to the operation of ESRI Software and other related Software. As the two parties work together on installation tasks, the systems administrator will be guided through key procedures needed to install and administer ESRI Software and other related software on the equipment. 11.4 Deliverables • Hardware system as ordered • Interfaced ESRI Software and hardware, as applicable • Assistance in familiarization with operation of hardware (ESRI and hardware vendor, as applicable) 11.5 Responsibilities • Licensee shall designate a person to act as its system administrator. Prior to the start date for installation, Licensee shall, at its own expense, prepare the designated site in accordance with the hardware manufacturer or third party vendor's ("Vendor's") specifications. These preparations shall include installation of appropriate electrical wiring, air conditioning, heating, humidity control, lighting, and space for hardware components. • ESRI shall coordinate the shipping, insurance, and delivery of the various hardware components including communication with Licensee regarding appropriate logistics. • Licensee shall provide appropriate insurance coverage for the equipment after delivery. 11.6 Manufacturer's Warranty and Infringement Indemnity ESRI will pass through any hardware warranty and infringement indemnity from each respective manufacturer directly to the Licensee. Neither ESRI Software and Data nor vendor's hardware is designed for use in fail-safe environments or mission - critical applications such as, but not limited to, running nuclear operations, airport/aircraft control systems, or 911 emergency and life support response systems. Licensee shall hold ESRI and the hardware vendor harmless from any claims for loss, cost, damage, expense, or liability arising out of, or in connection with, the use and performance of Software, Data, hardware, or services in such fail-safe environments or mission -critical applications. SUCH WARRANTIES AND INDEMNITIES ARE IN LIEU OF AND THIS AGREEMENT EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE HARDWARE IS FAULT -FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; AND (ii) ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. ARTICLE 12—GENERAL PROVISIONS 12.1 Notice Notice required or contemplated by either party must be delivered in person or by courier, express mail, facsimile, or postage - prepaid certified or registered airmail addressed to the party for whom it is intended at the address specified herein. Either party may change its address by giving prompt notice to the other party of the change. Licensee Contact: ESRI Contact: City Manager City Hall 3500 Pan American Drive Miami, FL 33133 With copy to: Chief Information Officer Miami Riverside Center 444 S.W. 2nd Ave Miami, FL 33130 Contracts Manager ESRI 380 New York Street Redlands, CA 92373-8100 Phone: 909-793-2853 Fax: 909-307-3020 Page 5 ofer 7 E300M 5/04 City Attorney Miami Riverside Center 444 S.W. 2nd Ave Miami, FL 33130 12.2 Shipping and Handling • Standard shipping is by two (2)-day air via UPS or equivalent carrier. • Expedited express delivery for Software can be arranged. • It is suggested the shipping and handling charges be confirmed in advance as the ESRI invoicing program will incorporate the current fees automatically. Also, there may be periodic changes due to fluctuations in the transportation industry fees. 12.3 Maintenance Generally, maintenance is offered on an annual basis. Upon expiration of the initial complimentary maintenance year, or any subsequent maintenance term, Licensee may issue a purchase order under this Agreement for renewal of maintenance at the terms and pricing then in effect. Upon acceptance of an ESRI quotation, the purchase order shall be issued in advance or not later than concurrent with the present maintenance term. Should there be a lapse in maintenance coverage, and at some later date the Licensee chooses to reinstate maintenance, Licensee shall pay maintenance fees for the lapsed period, not to exceed a maximum of two (2) prior years, plus one (1) year's maintenance fees in advance. 12.4 PUBLIC RECORDS ESRI understands that the public shall have access, at all reasonable times, to all documents and information pertaining to Licensee contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the Licensee and the public to all documents subject to disclosure under applicable law. ESRI's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the Licensee. 12.5 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS ESRI understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. Licensee and ESRI agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 12.6 NON-DISCRIMINATION ESRI represents and warrants to the Licensee that ESRI does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with ESRI's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. ESRI further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 12.7 INDEPENDENT CONTRACTOR ESRI has been procured and is being engaged to provide services to the Licensee as an independent contractor, and not as an agent or employee of the Licensee. Accordingly, ESRI shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the Licensee, nor any rights generally afforded classified or unclassified employees. ESRI further understands that Florida Workers' Compensation benefits available to employees of the Licensee are not available to ESRI, and agrees to provide workers' compensation insurance for any employee or agent of ESRI rendering services to the Licensee under this Agreement. 12.8 AMERICAN WITH DISABILITIES ACT Licensee shall affirmatively comply with all applicable provisions of the American with Disabilities Act ("ADA") in the course of utilizing the Area including Titles I and II of the ADA (regarding non-discrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure non- discrimination in employment of disabled persons. 12.9 FORCE MAJEURE Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) based upon a Force Majeure Event. Upon the occurrence of a Force Majeure Event the non -performing party will be excused from any further performance of those Page 6 ofkif- g3.0.044-5414. obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; and (b) the non -performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the non -performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) business days of the failure or delay) of the occurrence of a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. Page 7 of 4 7 4399M-51B4 F ESRI MPA PRICE LIST (E405 Sole Source 7/04) ESRI, 380 New York St, Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 General Information and Disclaimers 1. The following software items and related products are offered to Licensee and its qualified agencies for use only within the United States of America, its possessions, and territories. 2. The listed prices are exclusive of shipping, handling and any applicable taxes. Delivery terms are FOB Redlands, California. Shipping and handling will be prepaid and charged back, i.e. included in the invoice as a separate item. If desired, shipping and handling charges can be quoted to the customer prior to the placement of the order. Your ESRI Sales Representative can provide a specific quote including applicable shipping and handling charges. 3. Eligible customers may at any time request a specific quote based on this contract from an ESRI sales representative. When selecting items from this contract without assistance from an ESRI sales representative, be aware of the following general rules: (a) Volume pricing applies on a per -order and per -item basis unless otherwise indicated. The listed prices must be multiplied by the order quantity to determine the total price for any given order. (b) Some products have prerequisites and interdependencies so that one may not be purchased, or may not be functional, without prior or simultaneous purchase of another product. For example, software upgrades can only be licensed by customers who have already acquired the corresponding earlier version of the software, and extension software is only functional in combination with the corresponding core software. If you have questions regarding your configuration, please contact your ESRI representative for additional information. (c) System requirements and platform support vary from item to item. If in doubt whether your system will support a desired item, please contact your ESRI sales representative for additional information. (d) Some items are not offered to all potential customers. For example, certain software upgrades are only offered to customers who have acquired the most recent versions of the software and local government licenses are only offered to local government customers. (e) For installations exceeding one (1) day on -site, ESRI will add $1,000 per day. (f) Customer must provide adequate facilities for client site training. Certain other restrictions apply. See the Learning Center On -site training information at ESRI's Web site (www.esri,com/training/site_training.htmi) for details. (g) ESRI Site Training (i.e. Training at one of ESRI's Training Centers) requires a completed registration application form from each student. Registrations are processed on a first -come, first -served basis. We recommend that you submit this registration information at least one month prior to the start date of your class. See the Learning Center registration information at ESRI's Web site (www.esri.com/training/register.html) for details. 4. Support services are defined at ESRI's Web site (www.esri.com) within the user support section. Particular attention should be paid to the fact that some ESRI software comes with complimentary maintenance for the first year and other software features different support plans. 5. New software releases for Arclnfo, ArcEditor, ArcSDE, ArcGS Concurrent Use Licenses, ArcIMS, and other software are provided exclusively through maintenance programs. In these cases, software upgrades are not sold separately: Page 1 of. 5 7 E405 Sole Source 7/04 7. Complimentary User Conference Registration for Standard Maintenance. Standard Maintenance Program No. of Complimentary Registrations 1 Primary Maintenance for ArcInfo Floating License Primary Maintenance for ArcInfo Node -Locked License 2 Maintenance for ArcSDE (or SDE 3) Server and Two Processor License 1 Maintenance for First Enterprise SDE Server License 1 Maintenance for First Workgroup SDE Package License 1 Maintenance for First SDE Enterprise or Extension Bundle 1 Maintenance for ArcSDE 3 1 Maintenance for ArcIMS Server/CPU License (limited to 1 per qualifying customer number) 1 Maintenance for First Floating ArcInfo University LAB KIT License 1 Maintenance for First Node -Locked ArcInfo University LAB KIT License 1 Maplex Maintenance 1 ArcView GIS or Standard Maintenance --per 25 License 1 Maintenance for ArcView 8.1 Single Use --per 25 License 1 Maintenance for ArcView 8.1 Concurrent Use --per 15 License 1 Maintenance for ArcEditor--per 10 License 1 Page 2 of -1-57 E405 Sole Source 7/04 MPA Price List E405 Sole Source 07/22/2004 Section Description Price 1 AreGIS Concurrent Use Licenses ArcInfo Concurrent Use License $9,100 ArcInfo Concurrent Use License Annual Maintenance (Primary 1st, 11th, 21st, 31st...) $3,000 ArcInfo Concurrent Use License Annual Maintenance (Secondary 2-10, 12-20...) $1,200 ArcEditor Concurrent Use License $6,300 Maintenance _____Primary Maintenance for ArcView Concurrent Use License $700 Secondary Maintenance for ArcView Concurrent Use License $500 Primary Maintenance for ArcGIS Spatial Analyst Concurrent Use License $500 Secondary Maintenance for ArcGIS Spatial Analyst Concurrent Use License $200 Primary Maintenance for ArcGIS 3D Analyst Concurrent Use License $500 Secondary Maintenance for ArcGIS 3D Analyst Concurrent Use License $200 Primary Maintenance for ArcGIS Geostatistical Analyst Concurrent Use License $500 Secondary Maintenance for ArcGIS Geostatistical Analyst Concurrent Use License $200 Maintenance for ArcPress for ArcGIS Concurrent Use License $200 Maintenance for ArcGIS StreetMap 9.0 Concurrent Use License $200 Primary Maintenance for ArcGIS Publisher Concurrent Use License $500 Secondary Maintenance for ArcGIS Publisher Concurrent Use License $200 Primary Maintenance for ArcGIS Survey Analyst Concurrent Use License $500 Secondary Maintenance for ArcGIS Survey Analyst Concurrent Use License $200 Primary Maintenance for ArcGIS Tracking Analyst Concurrent Use License $500 Secondary Maintenance for ArcGIS Tracking Analyst Concurrent Use License $200 Primary Maintenance for ArcGIS ArcScan Concurrent Use License $500 Secondary Maintenance for ArcGIS ArcScan Concurrent Use License $200 Primary Maintenance for ArcGIS Maplex Concurrent Use License $500 Secondary Maintenance for AreGIS Maplex Concurrent Use License $200 Primary Maintenance for ArcGIS Data Interoperability Concurrent Use License $500 Secondary Maintenance for ArcG1S Data Interoperability Concurrent Use License $200 Primary Maintenance for ArcGIS Schematics Concurrent Use License $700 Secondary Maintenance for ArcGIS Schematics Concurrent Use License $350 Primary Maintenance for ArcEditor Concurrent Use License $1,500 Secondary Maintenance for ArcEditor Concurrent Use License $1,200 1 ArcGIS Single Use Licenses Primary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Only) $400 Secondary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Only) Effective thru $200 September 30, 2004 Secondary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Only) Effective $300 October 1, 2004 Primary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Plus Extensions) $1,000 Secondary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Plus Extensions) $800 Effective thru September 30, 2004 Secondary Maintenance for ArcView 8.3 or 9.0 Single Use License (Core Plus Extensions) $900 Effective October 1, 2004 Primary Maintenance for ArcEditor Single Use (without extensions) Secondary Maintenance for ArcEditor Single Use (without extensions) Seetion Deseription $1,500 $1,200 Pried Page 3 of7 E405 Sole Source 7/04 Primary Maintenance for ArcEditor Single Use with Extensions $2,100 Secondary Maintenance for ArcEditor Single Use with Extensions $1,800 Section Description Price Maintenance Activation Program (Temporary Program Expires December 31, 2004) Primary Maintenance Activation Fee for ArcView 8.1, 8.2, or 8.3 Single Use License for $600 Windows, Core Only (Price Effective May 15, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 8.1, 8,2, or 8.3 Single Use License for $400 Windows, Core Only (Price Effective October 1, 2004 thru December 31, 2004) Primary Maintenance Activation Fee for ArcView 8.1, 8.2, or 8.3 Single Use License for $1,500 Windows, Core Plus Extensions (Price Effective May 15, 2004 thru December 31, 2004) Windows, Core Plus-Ex-tens-ions4Fiee4iffeetiw-May-1-57-2004-thro-Septembef-3-03-2004) Secondary Maintenance Activation Fee for ArcView 8.1, 8.2, or 8.3 Single Use License for $1,300 Windows, Core Plus Extensions (Price Effective October 1, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.3 Single Use License for Windows, $200 Core Only (Price Effective May 15, 2004 thru September 30, 2004) Ptm Mdintenance-Aetivation-lea-fry gie4Jse-dense-fer W4ndowsrGor-e- $1.,000 Plus Extensions (Price .Effective May 15, 2001 thru September 30, 2004) 1 e 1 sn 1: n f r Wins ows $800 Primary Maintenance Activation Fee for ArcView 3.3 Single Use License for Windows, Core $600 Only (Price Effective October 1, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.3 Single Use License for Windows, $400 Core Only (Price Effective October 1, 2004 thru December 31, 2004) Primary Maintenance Activation Fee for ArcView 3.3 Single Use License for Windows, Core $1,500 Plus Extensions (Price Effective October 1, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.3 Single Use License for Windows, $ 1,300 Core Plus Extensions (Price Effective October 1, 2004 thru December 31, 2004) Primary Maintenance Activation Fee for ArcView 3.2 Single Use License for Windows, Core $600 Only (Price Effective May 15, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.2 Single Use License for Windows, $300 Core Only (Price Effective May 15, 2004 thru September 30, 2004) Secondary Maintenance Activation Fee for ArcView 3.2 Single Use License for Windows, Core Only (Price Effective October 1, 2004 thru December 31, 2004) Primary Maintenance Activation Fee for ArcView 3.2 Single Use License for Windows, Core Plus Extensions (Price Effective May 15, 2004 thru December 31, 2004) $400 $1,500 Core Plus Extensions (Price Effective May 15, 2004 thru September 30, 2004) Secondary Maintenance Activation Fee for ArcView 3.2 Single Use License for Windows, $1,300 Core Plus Extensions (Price Effective October 1, 2004 thru December 31, 2004) Primary Maintenance Activation Fee for ArcView 3.2 Single Use License for UNIX, Core $1,050 Only (Price Effective May 15, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.2 Single Use License for UNIX, Core $750 Only (Price Effective May 15, 2004 tluu December 31, 2004) Primary Maintenance Activation Fee for ArcView 3.2 Single Use License for UNIX, Each $750 Extension (Price Effective May 15, 2004 thru December 31, 2004) Secondary Maintenance Activation Fee for ArcView 3.2 Single Use License for UNIX, Each $300 Extension (Price Effective May 15, 2004 thru December 31, 2004) Section Description Price Page 4 of 437 E405 Sole Source 7/04 1 ArcGIS Upgrades Upgrade from One ArcGIS Product to Another Upgrade from ArcView Single Use to ArcEditor $5,100 Upgrade from ArcView Single Use to Arclnfo $8,700 Upgrade from ArcView Concurrent Use to ArcEditor $3,500 Upgrade from ArcView Concurrent Use to ArcInfo $7,100 Upgrade from ArcEditor to ArcInfo $3,600 ArcInfo 7.x or 8.0.x Software—UNIX/Windows NT ArcInfo 7.x or 8.0.x Floating License Annual Maintenance (Primary 1st, l lth, 21st, 31st...) $3,000 ArcInfo 7.x or 8.0.x Floating License Annual Maintenance (Secondary 2-10, 12-20...) $1,200 ArcInfo 7.x or 8.0.x Node Locked 3-Pak License Annual Maintenance (Primary lst, l ith, $4,000 21st, 31st...) Arclnfo 7.x or 8.0.x Node Locked 3-Pak License Annual Maintenance (Secondary 2-10, $1,600 12-20...) Arclnfo 7.x or 8.0.x Extension (each) Floating License (ArcNetwork, ArcCOGO, ArcTIN, $2,000 ArcGrid, or ArcScan) Arclnfo 7.x or 8.0.x Extension Floating License Annual Maintenance (each) (Primary 1st, $500 11th, 21st, 31st...) Arclnfo 7.x or 8.0.x Extension Floating License Annual Maintenance (each) (Secondary 2-10, $200 12-20...) Arclnfo 7.x or 8.0.x Extension Node Locked 3-Pak License Annual Maintenance (each) $1,100 (Primary lst, 1lth, 21st, 31st...) Arclnfo 7.x or 8.0.x Extension Node Locked 3-Pak License Annual Maintenance (each) $440 (Secondary 2-10, 12--20...) Wi —2 Primary Maintenance for ArcView 3.3 Single Use License (Core Only) $400 Secondary Maintenance for ArcView 3.3 Single Use License (Core Only) Effective October 1, $300 2004 Primary Maintenance for ArcView 3.3 Single Use License (Core Plus Extensions) $1,000 Secondary Maintenance for ArcView 3.3 Single Use License (Core Plus Extensions) Effective $900 October 1, 2004 4 5 AreGIS Engine 6 ArcGIS Engine Developer Kit License $5.000 Primary Maintenance for AreGIS Engine Developer Kit License $3,000 Additional ArcGIS Engine Developer Kit License $3,000 Primary Maintenance for Additional ArcGIS Engine Developer Kit License $3,000 Secondary Maintenance for Additional ArcGIS Engine Developer Kit License $1,500 ArcGIS Engine Runtime Standard ArcGIS Engine Runtime License AreGIS Engine Runtime 3D License Extenstion ArcGIS Engine Runtime Spatial License Extenstion AreGIS Engine Runtime Enterprise Geodatabase (GDR) Update License Extenstion ArcGIS Engine Runtime StreetMan USA License Extenstion $500 $1.,500 $1,500 $1.500 $500 Standard ArcGIS Engine Runtime License (50 pack) $22,500 ArcGIS Engine Runtime license Extensions (3D, Spatial, Enterprise Geodatabase Update) $13.500 ArcGIS Engine Runtime StreetMan USA License Extension (10 pack) $4,500 Maintenance for Standard ArcGIS Engine Runtime License Without Extensions $150 Maintenance for Standard ArcGIS Engine Runtime License With Extensions $500 I Page 5 of -147 E405 Sole Source 7/04 Section 5 ArcGIS Server (Production Server) ArcGIS Server License (up to 2 CPUs) includes 2 Developer Licenses $30,000 Additional CPU's on a Licensed ArcGIS Server $15,000 Additional ArcGIS Server Developer License $3,000 ArcGIS Server License Spatial Extension (up to 2 CPU's) $10,000 Additional CPU's on a Licensed ArcGIS Server Spatial Extension $5,000 ption 1 Price 3 ArcGIS Server License 3D Extension (up to 2 CPU's) $10,000 Additional CPU's on a Licensed ArcGIS Server 3D Extension $5,000 ArcGIS Server License StreetMap Extension (up to 2 CPU's) $5,000 Additional CPU's on a Licensed ArcGIS Server StreetMap Extension $2,500 Maintenance for ArcGIS Server License $7,500 Maintenance for Additional CPU on a Licensed ArcGIS Server $3,750 Primary Maintenance for Additional ArcGIS Server Developer License $750 Secondary Maintenance for Additional ArcGIS Server Developer License $375 Maintenance for ArcGIS Server License Spatial Extension $2,500 Maintenance for Additional CPU on a Licensed ArcGIS Server Spatial Extension $1,250 Description Price Maintenance for ArcG1S Server License 3D Extension $2,500 Maintenance for Additional CPU on a Licensed ArcGIS Server 3D Extension $1,250 Maintenance for ArcGIS Server License StreetMap Extension $1,250 Maintenance for Additional CPU on a Licensed ArcGIS Server StreetMap Extension $625 ArcGIS Server (Development and Testing) ArcGIS Server Development and Testing License (up to 2 CPU's) $15,000 Additional CPU on licensed ArcGIS Server Development and Testing $7,500 Section. ese ion Price ArcGIS Server Development and Testing License Spatial Extension (up to 2 CPU's) $5,000 Additional CPU on Licensed ArcGIS Server Development and Testing Spatial Extension $2,500 ArcGIS Server Development and Testing License 3D Extension (up to 2 CPU's) $5,000 Additional CPU on Licensed ArcGIS Server Development and Testing 3D Extension $2,500 ArcGIS Server Development and Testing License StreetMap Extension (up to 2 CPU's) $2,500 Additional CPU on Licensed ArcGIS Server Development and Testing StreetMap Extension $1,250 Maintenance for ArcGIS Server Development and Testing License $3,750 Maintenance for Additional CPU on Licensed ArcGIS Server Development and Testing $1,875 Maintenance for ArcGIS Server Development and Testing License Spatial Extension $1,250 Maintenance for Additional CPU on Licensed ArcGIS Server Development and Testing $625 Spatial Extension Maintenance for ArcGIS Server Development and Testing License 3D Extension $1,250 Maintenance for Additional CPU on Licensed ArcGIS Server Development and Testing 3D $625 Extension Maintenance for ArcGIS Server Development and Testing License StreetMap Extension $625 Maintenance for Additional CPU on Licensed ArcGIS Server Development and Testing $312 StreetMap Extension 6 ArcSDE ArcSDE Installation Pack $400 ArcSDE Server and two Processors (incl. License for 1 Server and 2 Processors, 5 Read and $10,0009,00Q Write Connection Licenses) ArcSDE License for One Additional Processor $54,000 ArcSDE Read and Write Server Connection License $1,000 I Page 6 of 4-7 E405 Sole Source 7/04 14 ArcSDE Read -Only Server Connection License $500 Maintenance for ArcSDE or SDE Server License with Two CPUs $3,000 Maintenance for ArcSDE pr SDE Additional Processor License $1,000 Maintenance for ArcSDE/SDE Read and Write Server Connection License $150 Maintenance for ArcSDE/,SDE Read -Only Server Connection License $150 Maintenance for ArcSDE Single Use License Per Notebook Computer $200 Software Support and Services ASAP Technical Support ArcView Network Analyst or ArcView Tracking Analyst for Windows ASAP Support $349 PC ARC/INFO ASAP Support $595 ArcView 3D Analyst for Windows or ArcView Spatial Analyst for Windows ASAP Support $349 ArcView 3D Analyst for UNIX or ArcView Spatial Analyst for UNIX ASAP Support $349 ArcView Network Analyst for UNIX or ArcView Tracking Analyst for UNIX ASAP Support $349 ArcView 3.x for Windows or Macintosh ASAP Support $349 Developer Support Program ArcIMS Developers Priority Support $1,495 ArcIMS Developers Pay4s-You-Go Support (per incident) $150 MapObjects LT Developers Priority Support $395 MapObjects LT Pay -As -You -Go Support (per incident) $60 Arclnfo Workstation Developers Priority Support $2,000 ArcInfo Workstation Developers Pay -As -You -Go Support (per incident) $175 ArcGIS Desktop Developers Priority Support $2,000 ArcGIS Desktop Developers Pay -As -You -Go Support $175 Cross Product Plan Developers Priority Support $2,000 Annual Premium Support Services $75,000 Premium Support Services, at an Hourly Rate --Minimum 36 Hours $7,500 Installation Services and Training Single Workstation Installation of Arclnfo and Extensions in USA $2,500 Multiple (up to 5) Workstation Installations of Arclnfo and Extensions at One Site in the USA $3,500 ArcIMS Implementation --Service for the ArcIMS Standard Edition Server/CPU License. $3,500 Consists of up to 20 hours of travel and on -site support, over 2 days. ESRI Site Training per Student, per Day at ESRI Learning Centers (USA) $425 Client Site Training per Class, per Day (12 Students) at Client Locations (USA) $3,325 4-5 Page 7 of 4157 E405 Sole Source 7/04 ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ESRI CLIENT SITE TRAINING TERMS AND CONDITIONS Whereas, the CLIENT wishes to arrange for training of its employees, the following terms shall be followed as applicable. I —SCOPE ESRI agrees to conduct training courses pursuant to the terms contained herein. Course Description: The ESRI® Software training course(s) to be conducted, the location, the dates during which the courses are to be conducted, the number of participants, and the prices to be paid to ESRI are as set forth in the ESRI Course Catalog or at ESRI's training Web site, which is incorporated by this reference. All courses shall be conducted in substantial conformity with the most current ESRI training course brochure(s). ESRI reserves the right to modify course content when necessary due to Software technical abilities or limitations. ESRI's Responsibility: ESRI shall provide an instructor qualified to conduct the course(s), as well as all necessary training materials sufficient for the number of registered participants. ESRI's scheduling coordinator, through whom all course(s), dates, and locations shall be confirmed, can be contacted at 909-793-2853, extension 1523. CLIENT's Responsibility: Where courses are to be conducted at CLIENT's facilities, CLIENT shall provide physical training facilities that meet the following minimum requirements: CLIENT shall, where possible, provide a one (1)-room facility, sufficient for a training course for up to twelve (12) persons (or such other number as may be agreed to by ESRI's scheduling coordinator), The facility shall have appropriate climate control, lighting, and sufficient power and number of outlets to accommodate the required number of computers and other equipment to be used. CLIENT shall supply all computer hardware for the training course. Computers must be platforms fully supported by ESRI. All computer hardware shall be configured with an appropriate release of an operating system to run the current release version of the required Software. There shall be a minimum of one (1) color monitor for every participant. Other peripheral devices including, but not limited to, digitizers and plotters/printers, as required by the training course being conducted, shall be Class 1 supported. • CLIENT shall be responsible for providing one (1) high -resolution PC projector and screen as well as one (1) large writing board. • CLIENT shall limit the number of course participants to twelve (12) students per course. Additional students, up to a maximum of fifteen (15), may be added to some classes for an additional fee. CLIENT agrees that all participants shall be regular employees of CLIENT who meet the prerequisites set forth in the ESRI training brochure(s). • CLIENT shall issue a purchase order and pay invoices pursuant to the terms set forth in Section III below. • CLIENT shall complete and submit an ESRI Client Site Request form not less than four (4) weeks prior to the start of any course. Final schedule is subject to mutual agreement. II —SOFTWARE LICENSES The terms of the ESRI license agreement shall be applicable to all CLIENT course participants and for all Software and documentation licensed for use in any training course to be conducted. For on -site training, temporary Software licenses may be issued by ESRI where there is an insufficient number of Software licenses available at the training facility. CLIENT shall deinstall the temporary Software licenses at the conclusion of the training course. III —PERFORMANCE AND PAYMENT Upon completion of each training course, ESRI shall invoice CLIENT and CLIENT shall pay said invoice within forty-five (45) days of receipt thereof. IV —EXPORT CONTROL REGULATIONS ESRI's technology is subject to U.S. export control laws and regulations—ESRI's Software, data, documentation, and any underlying information or technology may not be exported, reexported, or provided in whole or in part to (i) any country to which the United States has embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control law or regulation. ESRI is a trademark, registered trademark, or service mark of ESRI in the United States, the European Community, or certain other jurisdictions. Page 1 of - -04 igad7 Exhibit 2 Certification of Deinstallation, Discontinued Use of, or Destroyed On the date signed below the licensee hereby certifies it has de -installed and discontinued use of, or destroyed, all copies of the proprietary ESRI software, documentation, and any and all revisions and updates for the platform identified below. If any other copies of ESRI software, documentation, revisions, and updates are subsequently discovered, except as authorized in writing by ESRI, they shall also be de -installed and discontinued use of, or destroyed in a manner consistent with this certification. Hardware Description Unique Hardware Identifier or Tag Type of ESRI software that has been: As of what date ❑ De -installed ❑ Discontinued use 0 Destroyed Company Name Authorized Signature Name (Printed) Title Date CUSTOM SOFTWARE, TECHNICAL DATA, AND ASSISTANCE LICENSE ADDENDUM (E600 5/04) ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE I —DEFINITIONS All words, phrases, or terms defined in other parts of this Agreement shall have the same meaning in this Addendum. The following additional words, phrases, or terms shall have the following meaning: i. "Task Order" means a task order issued under this Addendum. (A sample task order form is attached as Attachment A.) ii. "Custom Software" means all or any portion of the computer software code, components, dynamic link libraries (DLLs), and programs delivered on any media provided in source, object, or executable code format(s), inclusive of backups, updates, or merged copies permitted hereunder or subsequently supplied under any Task Order, exclusive of Software. iii. "Technical Data" means, without limitation, all technical materials and knowledge including formulas, compilations, programs, methods, techniques, know-how, technical assistance, processes or other similar information supplied or disclosed by ESRI under any Task Order. iv. "Tangible Deliverables" means deliverables created under any Task Order, exclusive of Software, Custom Software, and Technical Data, but includes maps and/or geographical data which results from the use of Custom Software, designs, schematics, user documentation, training documentation, specifications, drawings, flowcharts, briefings, test or quality control procedures or other similar information. v. "Data" means any ESRI or third party data vendor(s) digital data set(s) including, but not limited to, geographic, vector data coordinates, raster, or associated tabular attributes in ESRI® GIS software compatible format(s) supplied under this Agreement. vi. "Deliverables" means Custom Software, Technical Data, Tangible Deliverables or Data specified for delivery or use by Licensee under a Task Order. vii. "Supported Software" means the Software identified pursuant to Article 2. ARTICLE 2—TASK ORDERS AND PROJECT SCHEDULE ESRI shall provide Deliverables as specified in Task Orders for support of the Software identified therein ("Supported Software"). Unless otherwise provided by ESRI in writing, an ESRI authorized Senior Contract Administrator can agree to Task Orders. The Chief Information Officer or his/her representative is authorized to sign Task Order and bind Licensee_aieensee shall Licensee. Each party may enter into Task Orders at its sole discretion and shall not have any obligation under a Task Order until it is signed by both parties. ESRI will not unreasonably deny entering into a Task Order. Each party shall identify in writing the project manager who is responsible for the Deliverables specified in Task Orders. By written notice, either party may replace the project manager at any time with a similarly qualified person. ESRI shall complete each Task Order in accordance with the schedule specified in that Task Order. ARTICLE 3---LICENSE GRANT Subject to the terms and conditions set forth in this Agreement and effective upon their delivery, ESRI hereby grants to Licensee a nonexclusive, fully paid -up, worldwide license in the Custom Software to use, modify, and reproduce the Custom Software source code in connection with Licensee's authorized use of Supported Software. The grant in the immediately preceding sentence does not apply to Data, which Licensee must separately and directly license from the vendor. ESRI is a trademark, registered trademark, or service mark of ESRI in the United States, the European Community, or certain other jurisdictions. Page 1 of 9 ESRI Agreement No. E600 5/04 ARTICLE 4—PATENTS AND INVENTIONS During performance of Task Orders, the parties anticipate that inventions, innovations, and improvements ("Inventions") relating to the subject matter of such Task Orders may be conceived solely or jointly by principals, employees, consultants, or independent contractors (hereinafter called "Inventors") of the parties hereto. The parties agree that, as of the effective date of this Agreement, ESRI or its licensors own all intellectual property rights in the Software. During the term of this Agreement, Licensee shall promptly notify ESRI if Licensee becomes aware of any known or suspected infringement or violation of these rights. Each party shall retain title to any Inventions made or conceived solely by its Inventors during the term of this Addendum, including, but not limited to, such Inventions as ESRI's Inventors solely conceive while providing technical assistance pursuant to this Addendum. The parties shall jointly own any Invention made jointly by Inventors from both parties. With respect to such Inventions of Licensee relating to the Software, Licensee hereby grants and agrees to grant to ESRI an irrevocable, royalty -free, nonexclusive, worldwide right and license, with right to sublicense, use, make, sell, offer to sell, or import such Inventions for any purpose, whether or not patented in the country of such past or intended use. Licensee agrees to disclose promptly to ESRI (i) each Invention relating to the Software and made or conceived by Licensee's Inventors during the term of this Addendum and (ii) of any decision to file a patent application with respect to such Invention and the country or countries in which such application will be filed. Where only one party has title to an Invention, that party, at its sole discretion, shall have the right, but not the obligation, at its expense to: (i) decide on whether or not to seek or maintain, or to continue to seek or maintain, patent protection in any country on such Invention; (ii) decide the extent and scope of such protection; and (iii) protect and enforce in any country any patents issued on such Invention. All Inventions made by Inventors during performance of tasks and activities defined by Task Orders during the term of this Addendum will be presumed, absent clear and convincing evidence to the contrary, to have resulted from the Inventors' activities under the Task Orders. Neither party may license, transfer, sell, or otherwise alienate or encumber its interest in jointly owned Inventions without the written consent of the other party, which shall not be unreasonably withheld. However, either party may transfer such Inventions to its Affiliates for their internal use only. "Affiliate" shall mean the parent or subsidiary companies of a party or subsidiary companies to a party's parent provided there is more than fifty percent (50%) ownership of the subsidiary by the parent or party. ARTICLE 5—OWNERSHIP, CONFIDENTIALITY, AND EXPORT CONTROLS Except as specifically granted in this Addendum, ESRI or its licensors own and retain all right, title, and interest in the Custom Software. This Agreement does not transfer ownership rights of any description in the Custom Software to Licensee or any third party. Licensee owns and retains all right, title, and interest in the Tangible Deliverables and/or -data provided by Licensee to ESRI under a Task Order. This Agreement does not transfer ownership rights of any description in the Tangible Deliverables and/or data provided by Licensee under a Task Order to ESRI or any third party. Unless otherwise agreed in writing, the Custom Software is ESRI confidential and Licensee shall preserve and protect its confidentiality. Insofar as its rights may be legally restricted, Licensee agrees not to reverse engineer or decompile the Custom Software delivered only in object code, executable code, or formats subject to similar or greater means of access control (collectively, "Secure Formats"). For Custom Software delivered in source code or other human -readable formats, Licensee shall have met its obligations under this Article if its disclosure of Custom Software is limited to Secure Formats, provided that the means for reverse engineering, decompiling, or disassembling such Custom Software is withheld from such disclosure, and the person or entity in receipt of such Custom Software similarly agrees not to perform such acts or allow others to do so. Except as provided in the preceding paragraph, Licensee shall not disclose the Custom Software to employees or third parties without the advanced written consent of ESRI. However, Licensee may, without such consent, make such disclosures to employees as are reasonably required for the Licensee's authorized use of the Supported Software, provided that such disclosure is strictly limited to the portions of the Custom Software needed for that purpose. Page 2 of 9 ESRI Agreement No. E600 5/04 The disclosures permitted under the preceding paragraph shall not relieve Licensee of its obligation to maintain the Custom Software in confidence and comply with all applicable laws and regulations of the United States, including, without limitation, its export control laws. Furthermore, before disclosing all or any portion of the Custom Software to employees or third parties as permitted in the preceding paragraph, Licensee shall inform such employees or third parties of the obligations in this Article and obtain their agreement to be bound by them. Licensee shall not have any obligation to protect any part of the Custom Software -that it can prove: (i) was in Licensee's possession before receipt from ESRI; (ii) is or becomes a matter of public knowledge through no fault of Licensee; (iii) is rightfully disclosed by a third party without a duty of confidentiality; (iv) is disclosed by ESRI to a third party without a duty of confidentiality; (v) is independently developed by Licensee; or (vi) is required to be disclosed by operation of law. ARTICLE 6—ACCEPTANCE A. For Time and Materials Task Orders Deliverables are provided strictly on a time and materials basis. Therefore, Licensee shall accept Deliverables as promptly as practicable after delivery, and Deliverables shall be deemed accepted thirty (30) days after delivery. B. For Firm Fixed Price Task Orders Deliverables for fixed price Task Orders shall be categorized as follows: "DELIVERABLE ACCEPTED" means a Deliverable conforming to applicable Task Order(s) with no more than minor nonconformities. Licensee shall complete its acceptance review within fifteen (15) working days of receiving each Deliverable. ii. "DELIVERABLE ACCEPTED WITH REWORK" means a deliverable substantially conforming to applicable Task Order(s), but having a significant number of identified nonconformities and accepted subject to rework by ESRI. ESRI shall rework the Deliverable for the identified nonconformities and resubmit it within thirty (30) days. Licensee will rerun its acceptance review for the nonconformities detected in the initial review within fifteen (15) working days of such resubmission and will reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED. iii. "DELIVERABLE REJECTED" means a Deliverable that fails to substantially conform to applicable Task Order(s). ESRI shall rework the Deliverable and resubmit it to Licensee within thirty (30) days, at which time Licensee shall have fifteen (15) working days to rerun its acceptance review and reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED. Licensee agrees it shall not use any Deliverable in its business operations before acceptance as described in Subsections B(i) or B(ii). If ESRI does not receive within fifteen (15) working days after delivery written notice that the Deliverable is "ACCEPTED WITH REWORK" or "REJECTED" in accordance with B(ii) or B(iii), or if Licensee uses the Deliverable in its business operations, the Deliverable shall be deemed, as of the first to occur of either of these events, to have been accepted. ARTICLE 7—CHANGES TO SCOPE OF WORK Licensee may, at any time, request changes within the general scope of an open Task Order. If the parties agree to such changes and such changes cause an increase or decrease in the cost or time required to provide a Deliverable under any Task Order (regardless of whether the Deliverable itself is changed), an equitable adjustment in the price or schedule, or both, shall be made, and this Agreement shall be modified accordingly in writing and signed by both parties. ARTICLE 8--COMPENSATION; INVOICES A. For Time and Materials Task Orders ESRI shall prepare and submit to Licensee written monthly invoices showing the compensation due for work performed under Task Orders. The amount invoiced will be equal to the number of hours expended during the previous month multiplied by the rates for labor categories set forth in Attachment B, plus other burdened direct costs. ESRI may, at its sole discretion, stop work in order to avoid exceeding the total value of applicable Task Orders. Any election to exceed such total value shall not affect the rights or obligations of the parties under this Agreement, including any right to compensation for such excess work and to stop work at anytime after such total value is exceeded. Page 3 of 9 ESRI Agreement No. E600 5/04 B. For Firm Fixed Price Task Orders ESRI shall prepare and submit monthly invoices based on the percent complete for each Deliverable as of the end of the preceding month. Upon acceptance of all Deliverables under a Task Order, the full amount of that Task Order is due. C. Payment Licensee shall pay each invoice no later than forty-five (45) days after receipt thereof. ARTICLE 9—REQUIRED CORRECTIONS AND LIMITED WARRANTY A. Correction of Deliverables and Warranty 1. For Time and Materials Task Orders: Not later than thirty (30) days after acceptance of a Deliverable, Licensee may require ESRI to correct or replace, at ESRI's option, Deliverables that at the time of delivery do not conform with the applicable written specifications included in, or delivered by ESRI pursuant to, the corresponding Task Order. Except as provided in the next paragraph of this Subsection A.1, the cost of replacement or correction shall be determined under the Time and Materials section of the Compensation; Invoices article of this Addendum. Not later than two (2) years after acceptance of a Deliverable, Licensee may require ESRI to correct or replace, without cost to the Licensee, nonconforming Deliverables, if the nonconformances are due to (i) fraud, lack of good faith, or willful misconduct on the part of an employee at or above the ESR[ Professional Services Department Manager level (collectively, 'ESRI Manager") or (ii) the conduct of one or more of ESRI's employees selected or retained by ESRI after an ESRI Manager has reasonable grounds to believe that the employee is habitually careless or unqualified. ESRI shall have no obligation or liability under this Agreement to correct Deliverables that were nonconforming at the time of delivery, except as provided in this Subsection A.1. 2. For Firm Fixed Price Task Orders: ESRI warrants that for a period of thirty (30) days after acceptance of a Deliverable that the Deliverable will conform, in a manner consistent with professional and technical standards in the software industry, with the applicable written specifications that are included in, or delivered by ESRI pursuant to, the corresponding Task Order. B. Disclaimer I. THE REQUIRED CORRECTIONS AND WARRANTY SET FORTH IN SECTION "A" OF THIS ARTICLE ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER OBLIGATIONS TO CORRECT OR REPLACE DELIVERABLES AND OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT DELIVERABLES ARE ERROR -FREE, WILL OPERATE WITHOUT INTERRUPTION, OR ARE COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; AND (ii) ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. 2. IN ADDITION TO AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, ESRI DOES NOT WARRANT IN ANY WAY THE MAP DATA, WHETHER SUPPLIED BY LICENSEE OR ESRI, OR THE VENDORS OF EITHER OF THEM. IF SUPPLIED BY ESRI OR ITS VENDORS, ESRI BELIEVES SUCH MAP DATA IS RELIABLE, BUT IT MAY NOT BE FREE OF NONCONFORMITIES, DEFECTS, ERRORS, OR OMISSIONS; BE AVAILABLE WITHOUT INTERRUPTION; BE CORRECTED IF ERRORS ARE DISCOVERED; OR MEET LICENSEE'S NEEDS OR EXPECTATIONS. ESRI IS NOT INVITING RELIANCE ON MAP DATA, AND LICENSEE SHOULD ALWAYS VERIFY ACTUAL DATA FROM DOCUMENTS OF RECORD, FIELD MEASUREMENT, OR OBSERVATION. ARTICLE 10—LIMITATION OF LIABILITY A. Disclaimer of Certain Types of Liability IN NO EVENT SHALL ESRI OR ITS LICENSOR(S) BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE DELIVERABLES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF Page 4 of 9 ESRI Agreement No. E600 5/04 SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. B. General Limitation of Liability IN NO EVENT WILL ESRI'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE DELIVERABLES, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID TO ESRI BY LICENSEE FOR THE DELIVERABLES FROM WHICH THE LIABILITY DIRECTLY AROSE NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION B. SHALL NOT APPLY TO CLAIMS FOR BODILY INJURY, DEATH OR PROPERTY DAMAGE , CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ESRI OR ITS SUBCONTRACTORS. C. Applicability of Disclaimers and Limitations Licensee agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Licensee has accepted the Deliverables or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose or cause consequential loss), and that the same form an essential basis of the bargain between the parties. ARTICLE 11—HIGH RISK ACTIVITIES A. DELIVERABLES CUSTOM SOFTWARE AREAS NOT FAULT -TOLERANT AND ARTS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE FOR USE FOR INSURANCE UNDERWRITING OR WITH CRITICAL HEALTH AND SAFETY OR ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH RISK ACTIVITIES"). ESRI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. B. Licensee represents and warrants that it will not use, distribute, or resell Del+verables-Custom Software for High Risk Activities and that it will ensure that its customers and end users of the De#verables-Custom Software areis provided with the notice in Section A of this Article. C. In the event of a breach by Licensee of the representation and warranty in Section B of this Article, Licensee agrees to indemnify and hold ESRI, its officers, directors, employees, agents, subcontractors, licensors, successors, and assigns harmless from and against any and all liability, losses, claims, expenses (including attorneys' fees), demands, or damages of any kind, including direct, indirect, special, punitive, incidental, or consequential damages, arising out of or in any way connected with such breach. Delivery of Deliverables -Custom Software does not constitute a waiver of the rights and obligations set forth in this Article. ARTICLE 12—TERM AND TERMINATION A. Term Unless terminated earlier pursuant to Section B or C of this Article, the term of this Addendum shall expire upon the later to occur of (i) the delivery of the last scheduled Deliverable as specified in the Task Orders executed under this Addendum or (ii) the expiration of a two -five (2)-year period commencing on the effective date of this Agreement. B. Termination for Convenience Licensee may terminate this Addendum or any Task Order at any time on thirty (30) days' written notice to ESRI and upon payment to ESRI of all amounts due to date pursuant to this Addendum, including reasonable termination expenses and the pro rata contract price for the Task Orders affected.. Page 5 of 9 ESRI Agreement No. E600 5/04 C. Termination for Cause Either party, as applicable, shall have the right, in addition and without prejudice to any other rights or remedies, to terminate this Addendum or any Task Order as follows: i. By ESRI, at its sole discretion and without opportunity to cure, if (a) Licensee fails to pay after ten (10) days' written notice the amounts due to ESRI pursuant to the "Compensation; Invoices" article of this Addendum, (b) ESRI has terminated all or any part of this Agreement under any other of its provisions, or (c) Licensee engages in unauthorized use, reproduction, or disclosure of Deliverables. ii. By either party for any material breach of this Addendum that is not cured within fifteen (15) days of receipt by the party in default of a notice specifying the breach and requiring its cure. D. Obligations upon Termination Upon termination of this Addendum, the parties shall have no further obligations pursuant to its terms, except that Articles 4, 5, 8, 9B, and 10-14 shall survive termination. Unless Licensee has materially breached its obligations under this Agreement, Articles 3 and 9A shall also survive termination. ARTICLE 13—RESTRICTIONS ON HIRING Licensee shall not solicit for hire any ESRI employee who is associated with efforts called for under this Addendum during the term of this Addendum and for a period of one (1) year thereafter. ARTICLE 14—TAXES Licensee is a tax exempt entity and will provide ESRI with a tax exemption certificate if requested. ARTICLE 15—INDEPENDENT CONTRACTOR ESRI is, and at all times will be, an independent contractor. Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party has the authority to enter into any contracts on behalf of the other party or otherwise act on behalf of the other party. ARTICLE 16—FORCE MAJEURE The obligations in this Addendum are subject to the "Force Majeure" article set forth in this Agreement. ARTICLE 17—COMMERCIAL TERMS AND CONDITIONS This Addendum contains ESRI's commercial terms and conditions. Licensee's rights in the Deliverables are strictly limited to the uses granted by this Addendum. In the event any court, arbitrator, or board holds that the U.S. Government has greater rights to any portion of the Deliverables, such rights shall extend only to the portion(s) affected, and use, duplication, or disclosure by the U.S. Government is subject to restrictions as provided in DFARS §227.7202-1(a) and §227.7202-3(a) (1995), DFARS §252.227-7013(c)(1)(ii) (OCT 1988), FAR §12.212(a) (1995), FAR 02.227-19 (June 1987), or FAR §52.227-14 (ALT III) (June 1987), as applicable. Article 18 Disputes The Contractor and the City will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating to intellectual property) through consultation and negotiation in good faith and a spirit of mutual cooperation. The respective project managers will confer and attempt to settle a dispute. The dispute will be escalated to appropriate higher - level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator in Miami - Dade County chosenjointly by the City and the Contractor within twenty-two (22) Days after notice by one of the parties demanding non -binding mediation. The City and the Contractor will not unreasonably withhold consent to the selection of a mediator, and they will share the cost of the mediation equally. The parties may postpone mediation until they have completed some specified but limited discovery about the dispute. The parties may also replace mediation with some other form of non -binding alternative dispute resolution within Miami -Dade County ("ADR'). Page 6 of 9 ESRI Agreement No. E600 5/04 Any claim relating to intellectual property and any dispute that cannot be resolved l tween. thesarties through negotiation or mediation within two (2) months after the date of the initial demand for non -binding mediation as described above shall then be submitted by either party to a court of coruktot jurisdiction located in Miami -Dade County, Florida. Each party consents to jurisdiction over it by such a court. The use of ADR procedures will not be considered under the doctrines of lachcs, waiver, or estoppel to affect adversely the rights of' either party. Either party may resort to the judicial proceedings described in this section before the expiration of the two -month ADR period if in good faith. efforts to resolve the dispute under these procedures have been unsuccessful; or (ii) interim relief from the court is necessary to prevent serious and irreparable injury to such party or any of its affiliates, agents, employees, customers, suppliers, or subcontractors. Performance by the parties under this Agreement shall not be suspended during the resolution of any dispute unless the parties agree otherwise. Page 7 of 9 ESRI Agreement No. E600 5/04 ATTACHMENT A SAMPLE TASK ORDER ESRI Agreement No. Task Order No. In accordance with the terms and conditions of the above -referenced Agreement between Environmental Systems Research Institute, Inc. (ESRI), and (Licensee), this Task Order authorizes delivery of the Deliverables described and in accordance with the terms, schedule, and start/end date(s) specified below. I. Scope of Work: [As applicable, specifically identify and describe Deliverables including Custom Code, Data, and Technical Data (including Technical Assistance), Supported Software, and the resources to be provided by Licensee (including Licensee -supplied personnel, software, hardware, and digital or hard -copy data), and place of delivery and location where technical assistance will be provided.] In addition to the foregoing, Licensee agrees that its employees, representatives, and subcontractors will cooperate and communicate with ESRI during performance of this Task Order. Without cost to ESRI, Licensee shalt provide, allow access to, or assist ESRI in obtaining all data ESRI requests for performance of this Task Order, including, but not limited to, (1) copies of previously prepared reports, maps, plans, surveys, records, and other documents in the control or possession of' Licensee and (2) copies of ordinances, codes, regulations, or other governmental documents. 2. Contract Type (FFP or T&M): 3. Total Task Order Value or Not -to -Exceed Value (if time and materials basis): 4. Delivery Schedule or Start/End Date(s) for Each Deliverable: 5. Special Considerations: 6. ESRI Project Manager: ESRI Senior Contract Administrator: ACCEPTED AND AGREED: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (Licensee) (ESRI) Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: Page 8 of 9 ESRI Agreement No. E600 5/04 ATTACHMENT B TIME AND MATERIALS RATE SCHEDULE Effective January 1, 2004 Hourly time and materials labor rates have been provided for each labor category for calendar year 2004. The hourly labor rates for services that are performed after 2004 may be escalated in an amount not to exceed seven and one-half percent (7.5%) each year. Other direct costs, such as travel, reproduction, subcontractor, telecommunication/freight, or materials, will be charged a material handling fee and invoiced. Principal Hourly Rate: $273/Hour These staff work as program directors or project advisors providing project vision, strategic consulting, and program management for all types of geographic information system (GIS) projects. These staff apply market/application domain expertise with extensive experience in GIS and related technologies to ensure the successful completion of the program. Consulting activities may include strategic planning, review and oversight of requirements definition, application and database design, and system integration consulting. Management activities may include defining program requirements, establishing budgets and schedules, allocating staff and other resources, and managing and overseeing subcontractor activities. These staff work with senior client staff and have the support of senior ESRI corporate staff to ensure successful project completion. Senior Consultant Hourly Rate: $207/Hour These staff work as project managers or project advisors providing strategic consulting and program management for all types of GIS projects. These staff apply market/application domain expertise with extensive experience in GIS and related technologies to ensure the successful completion of the program. Consulting activities may include strategic planning, GIS workshops and seminars, requirements definition, application and database design and development, and system integration consulting. Management activities may include defining program requirements, establishing budgets and schedules, allocating staff and other resources, and managing and overseeing subcontractor activities. They design comprehensive work plans that employ structured systems methodologies, which define project deliverables, milestones, and realistic schedules. Consultant Hourly Rate: $1641Hour These staff provide day-to-day consulting and management of contracted projects within ESRI. They work under the guidance of senior ESRI consulting staff and support the design and implementation of defined work plans. They provide traditional consulting services and also provide design and management support to application development projects and database conversion projects. They conduct detailed requirements interviews, document application requirements, develop logical and physical database designs using computer -aided software engineering (CASE) tools and entity -relationship (E-R) diagramming methodologies, design and develop software and database quality assurance/quality control (QA/QC) programs, and provide management oversight of daily technical activities. They work with senior consulting and technical staff to design comprehensive work plans that employ structured systems methodologies, which define project deliverables, milestones, and realistic schedules. These staff also work with ESRI administrative staff to ensure that progress and financial reporting is provided according to contract requirements. Senior Technical Designer Hourly Rate: $213/Hour These staff are the senior technical staff at ESRI. They provide the overall technical vision and system architecture for large complex systems. They ensure that sound software engineering principles and life cycle methodologies are applied to projects. They are actively involved in systems architecture design, application software design, database process design, and all phases of coding including the conduct of design and code reviews. They may serve as the principal investigator in focused studies or research and development (R&D) projects. While staff in this category have broad technical knowledge of GIS applications and related technologies, they also provide specific expertise in areas such as Internet applications, data warehousing, spatial analysis, and modeling. They are proficient in ESRI® software languages as well as third generation programming languages, Internet markup languages, and other technologies. ESRI is a trademark, registered trademark, or service mark of ESRI in the United States, the European Community, or certain other jurisdictions. Page 9 of 9 ESRI Agreement No. E600 5/04 Technical Designer Hourly Rate: $172/Hour GIS system/software developers design technical project plans for the implementation of application software projects and database development projects. They oversee the day-to-day technical activities of the project team and ensure that appropriate systems methodologies are employed. They design and develop QA/QC programs and oversee design and code reviews, database reviews, and other QA/QC activities throughout the project life cycle. They will perform detailed software design, detailed database conversion design, and be directly involved in the coding and implementation of the more complex and strategic portions of application software and database conversion projects. They are proficient in ESRI software languages as welt as third generation programming languages, Internet markup languages, and other technologies. Technical Analyst Hourly Rate: $134/Hour Staff in this category work independently to perform software coding and write software documentation to design specifications developed by senior staff. They also design and implement data conversion procedures. These staff also perform software and database quality control. They are proficient in the coding of software and processing of digital databases. They are proficient in ESRI software languages as well as third generation programming languages, Internet markup languages, and other technologies. Database Analyst Hourly Rate: $113/Hour These staff provide database development support in creating cartographic and digital data products. Areas of expertise include performing data conversion, migration, and translation activities utilizing advanced processing techniques in ARC/INFO® and/or ArclnfoTM software. Additionally, these staff design and implement efficient production tools and coordinate work flow with project personnel. Page 10 of 9 ESRI Agreement No. E600 5/04 ESRI TRAINING PRICE LIST Exhibit 3 15 Virtual Campus Individual Courses ESRI Virtual Campus Training Course Pricing (1 paid modules) per seat $25 ESRI Virtual Campus Training Course Pricing (2 paid modules) per seat $50 ESRI Virtual Campus Training Course Pricing (3 paid modules) per seat $75 ESRI Virtual Campus Training Course Pricing (4 paid modules) per seat $100 ESRI Virtual Campus Training Course Pricing (5 paid modules) per seat $125 ESRI Virtual Campus Training Course Pricing (6 paid modules) per seat $150 ESRI Virtual Campus Training Course Pricing (7 paid modules) per seat $175 ESRI Virtual Campus Training Course Pricing (8 paid modules) per seat $200 ESRI Virtual Campus Training Course Pricing (9 paid modules) per seat $225 ESRI Virtual Campus Subscription Pricing Education Subscriptions (for all Virtual Campus courses) Annual Premium Subscription ($2,500 Virtual Campus Dollar Value) $2,250 Annual Premium Subscription ($5,000 Virtual Campus Dollar Value) $4,250 Annual Premium Subscription ($10,000 Virtual Campus Dollar Value) $7,000 Annual Premium Subscription ($50,000 Virtual Campus Dollar Value) $30,000 Annual Premium Subscription ($100,000 Virtual Campus Dollar Value) $50,000 Annual Standard Subscription ($2,500 Virtual Campus Dollar Value) $2,125 Annual Standard Subscription ($5,000 Virtual Campus Dollar Value) $4,000 Annual Standard Subscription ($10,000 Virtual Campus Dollar Value) $6,000 Annual Standard Subscription ($50,000 Virtual Campus Dollar Value) $25,000 Annual Standard Subscription ($100,000 Virtual Campus Dollar Value) $40,000 ESRI Virtual Campus Web Workshop ESRI Virtual Campus Web Workshop (per seat) $30 ESRI TRAINING PRICE LIST Exhibit 3 — Page 2 15 Virtual Campus Individual Courses ESRI Virtual Campus Training Course Pricing (1 paid modules) per seat $25 ESRI Virtual Campus Training Course Pricing (2 paid modules) per seat $50 ESRI Virtual Campus Training Course Pricing (3 paid modules) per seat $75 ESRI Virtual Campus Training Course Pricing (4 paid modules) per seat $100 ESRI Virtual Campus Training Course Pricing (5 paid modules) per seat $125 ESRI Virtual Campus Training Course Pricing (6 paid modules) per seat $150 ESRI Virtual Campus Training Course Pricing (7 paid modules) per seat $175 ESRI Virtual Campus Training Course Pricing (8 paid modules) per seat $200 ESRI Virtual Campus Training Course Pricing (9 paid modules) per seat $225 ESRI Virtual Campus Subscription Pricing Education Subscriptions (for all Virtual Campus courses) Annual Premium Subscription ($2,500 Virtual Campus Dollar Value) $2,250 Annual Premium Subscription ($5,000 Virtual Campus Dollar Value) $4,250 Annual Premium Subscription ($10,000 Virtual Campus Dollar Value) $7,000 Annual Premium Subscription ($50,000 Virtual Campus Dollar Value) $30,000 Annual Premium Subscription ($100,000 Virtual Campus Dollar Value) $50,000 Annual Standard Subscription ($2,500 Virtual Campus Dollar Value) $2,125 Annual Standard Subscription ($5,000 Virtual Campus Dollar Value) $4,000 Annual Standard Subscription ($10,000 Virtual Campus Dollar Value) $6,000 Annual Standard Subscription ($50,000 Virtual Campus Dollar Value) $25,000 Annual Standard Subscription ($100,000 Virtual Campus Dollar Value) $40,000 ESRI Virtual Campus Web Workshop ESRI Virtual Campus Web Workshop (per seat) $30