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HomeMy WebLinkAboutExhibitENTERPRISE AGREEMENT No. E512G/312716 This Enterprise Agreement, including the documents listed below (collectively, "Agreement" or "EA"), is between City of Miami ("City"), with its main offices located at 444 S.W. 2 Avenue, Yh Floor, Miami, Florida 33130 and Environmental Systems Research Institute, Inc. ("Esri" or "Provider"). The Effective Date is as of the later date of the signatures below when signed by both parties. This Agreement provides for the licensing and Deployment of certain Esri Software, delivery of EA Maintenance, and provision of Esri User Conference registrations and any additional services as specified herein. This Agreement is composed of the following documents, which are incorporated herein by reference: 1. Enterprise Agreement signature page(s), E512G 2. Enterprise License Terms and Conditions, E512G, including ■ Appendix A—Products and Deployment Schedule ■ Appendix B—EA Fee Schedule ■ Appendix C—City Annual Deployment Report • Appendix D—EA Points of Contact • Appendix E—Tier 1 Help Desk Authorized Individuals • Appendix F ----Purchase Order Terms and Conditions 3. License Agreement, found at http://www.esri.com/legal/software-license, including the following: ■ License and Services Agreement, E204 ■ Esri Addendum 1, Product -Specific Terms of Use, E300 4. Esri Enterprise Advantage Program (EEAP) Enterprise Agreement (EA) Addendum (E125M-EA) ■ City of Miami Certificate of Self Insurance Coverage. ■ City of Miami Consumer's Certificate of Exemption Note: Licensee is defined on first page of item 2 above. The parties acknowledge that they have read and understand this Agreement and agree to be bound by the terms and conditions contained herein. This Agreements supplemented by City of Miami Purchase Orders, insubstantially the attached form shown as Exhibit F, Purchase Orders, and other Agreements pertaining to this subject matter executed by the parties, constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such subject matter. Any modifications or amendments to this Agreement must be in writing and signed by an authorized representative of each party. ENTERPRISE LICENSE TERMS AND CONDITIONS ARTICLE 1—DEFINITIONS All definitions in other parts of the EA will have the same meaning in this Enterprise License Terms and Conditions. In addition, the following definitions apply to the EA: "Case(s)" means a failure of Products to operate per the Documentation, where such failure substantially impacts operational or functional performance. "Deploy," "Deployment," or "Deployed" means to redistribute, or the redistribution of, the EA Products (and their related keycodes/registration files), or their having been redistributed, by City during the term of this EA for installation and use by Licensee. "EA Fee" means the fee set forth in Appendix B—EA Fee Schedule. E512G Page l of 34 09/02/2016 312716 09/27/2016 • "EA Maintenance" means Tier 2 Support, updates, and patches provided by Esri for EA Products and Rolled -In Software. ■ "EA Products" means the Products identified in Tables A-1 and A-2 of Appendix A—Products and Deployment Schedule. EA Products do not include Unit -Priced Item(s) or Esri technology that may be embedded in third -party products purchased by Licensee. ■ "Effective Date" means the date the Agreement commences and the start date for all licenses, regardless of when an Ordering Document is provided by Licensee. ■ "License Agreement" means the applicable license agreement incorporated by this reference that is (i) found at http://www.esri.com/le..gal/software-license, composed of the General License Terms and Conditions (E204) and Exhibit 1—Scope of Use (E300), and available in the installation process requiring acceptance by electronic acknowledgment, or (ii) a signed license agreement between Esri and Licensee that supersedes such electronically acknowledged license agreement. ■ "Licensee" means City. For avoidance of doubt, the definition of Licensee will not include consultants or contractors. Licensees must not include persons or entities ineligible to receive or have access to Esri products or services by operation of law, including US export control laws, decrees, orders, rules, regulations, policies, riders, conditions, or provisos. ■ "Rolled -In Software" means Products of the same type as EA Products that Licensee acquired for use prior to the Effective Date, that are current on paid maintenance (as shown in Esri's customer service records), and that receive EA Maintenance during the term of the EA. ■ "Technical Support" means a process to attempt to resolve reported Case(s) through error correction, patches, hot fixes, and workarounds, replacement deliveries; or any other type of Product corrections or modifications specified in the most current applicable Esri US Software Maintenance Program. ■ "Tier 1 Help Desk" means City's point of contact from which all Tier 1 Support will be given to Licensee. ■ "Tier I Support" means the Technical Support provided by the Tier I Help Desk as the primary contact to Licensee in the attempted resolution of reported Case(s). ■ "Tier 2 Support" means the Technical Support provided by Esri to the Tier 1 Help Desk when a Case cannot be resolved through Tier I Support. ■ "Unit -Priced Item(s)" means separately orderable Products or maintenance that is available subject to a per-unit license fee, subscription fee, or maintenance fee. ARTICLE 2—GRANT OF LICENSE 2.1 Grant of License. Licensee's use of the EA Products is subject to the License Agreement and any additional terms set forth in this Article 2 and in Article 3 below. Unit -Priced Items, if acquired, and Rolled -In Software will be licensed in accordance with the License Agreement. 2.2 Beta License. Beta licenses are not available under this EA as EA Products. If a beta license is requested and provided, it will be Iicensed separately and individually under the terms of the License Agreement (see Beta License in Section 3.2 of the General License Terms and Conditions—E204) only. No other benefits, grants, or rights provided in this EA shall apply or be provided/granted. 2.3 Consultant Access. Esri grants Licensee the right to permit Licensee's consultants or contractors to use the EA Products exclusively for Licensee's benefit. Licensee shall be solely responsible for compliance by consultants and contractors with this License Agreement and shall ensure that the consultant or contractor discontinues use of EA Products upon completion of work for Licensee. Access to or use of EA Products by consultants or contractors not exclusively for Licensee's benefit is prohibited. Licensee may not permit its consultants or contractors to install Software or Data on consultant, contractor, or third -party computers or remove Software or Data from Customer locations except for the purpose of hosting the Software or Data on Contractor Servers for the benefit of Licensee. Consultant or contractors must not include persons or entities ineligible to receive or have access to Esri products or services by operation of law, including US export control laws, decrees, orders, rules, regulations, policies, riders, conditions, or provisos. 2.4 City Responsibility. City shall remain primarily responsible to Esri for compliance by Licensees (including their users) with the terms and conditions of this EA. E512G Page 2 of 34 09102/2016 312716 09127/2016 AR'T'ICLE 3—SCOPE OF USE The Permitted Uses and Uses Not Permitted sections of the General License Terms and Conditions portion of the License Agreement are modified to include the additional term in Sections 3.1 and 3.2 below: 3.1 Additional Permitted Uses. For the term of the EA, City may copy and deploy the EA Products to Licensees up to the quantities of licenses granted in Appendix A. No other Licensee has a right to copy (except as permitted in the License Agreement) or deploy the EA Products. City may transfer, redistribute, or Deploy the EA Products within the continental United States; Hawaii; Alaska; and US territories, excluding Puerto Rico and the US Virgin Islands. 3.2 Uses Not Permitted a. Licensee shall not use the EA Products outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any. Any such export will be subject to US Export Control Regulation requirements of the License Agreement. b. Licensee shall not transfer, redistribute, or assign EA Products to any third party without the prior written permission of Esri. 3.3 Additional Restrictions Applicable to EA and License Agreement. A new or additional Eligible Agency may not be added as an EA participant or Licensee without the express prior written approval of Esri. Addition of an Eligible Agency may result in an increase in the EA Fee. ARTICLE 4—MAINTENANCE 4.1 EA Maintenance. EA Maintenance is included in the EA Fee. Rolled -In Software and EA Products will receive EA Maintenance, provided that standard maintenance is available for each item. EA Maintenance includes benefits specified in the most current applicable Esri Maintenance and Support Program document (found at www.esri.com/legal) as modified by this Section 4.1. a. Tier 1 Support Provided by City (1) The Tier 1 Help Desk will provide Tier I Support to all Licensees. (2) The Tier 1 Help Desk will use analysts fully trained in the Products they are supporting. (3) At a minimum, Tier 1 Support will include those activities that assist the user in resolving how-to and operational questions as well as questions on installation and troubleshooting procedures. (4) Tier I Support analysts will be the initial points of contact for all questions and Case(s). Tier 1 Support analysts shall obtain a full description of each reported Case and the system configuration from Licensee. This may include obtaining any customizations, code samples, or data involved in the Case. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Case(s). (5) If the Tier 1 Help Desk cannot resolve a Case, an authorized Tier 1 Help Desk individual may contact Esri for Tier 2 Support, The Tier 1 Help Desk shall provide support in such a way as to minimize repeat calls and make solutions available to Licensee. (6) City may assign named Tier 1 Help Desk individuals up to the quantity listed in Appendix B. These individuals will be identified in Appendix E and will be the only individuals (callers) authorized to contact Esri directly for Tier 2 Support. b. Tier 2 Support Provided by Esri (1) Esri shall log the calls received from Tier 1 Help Desk individuals. (2) Esri shall review all information collected by and received from Tier 1 Help Desk individuals including preliminary documented troubleshooting provided by the Tier 1 Help Desk when Tier 2 Support is required. (3) Esri may request that Tier 1 Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk. (4) Esri shall attempt to resolve Case(s) submitted by Tier 1 Help Desk by assisting the Tier I Help Desk individuals and not Licensee. E5 12G Page 3 of 34 09/02/2016 312716 09/27/2016 (5) When a Case is resolved, Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to Licensee. (6) Esri may, at its sole discretion, make patches, hot fixes, or updates available for downloading from Esri's website or, if requested, deliver them on media. ARTICLE 5—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT REPORT 5.1 Purchase Orders, Invoicing, Delivery, and Deployment a. Esri does not require City to issue purchase orders. City may submit a purchase order in accordance with its own process requirement, provided that City issues its initial purchase order on or before the Effective Date and subsequent purchase orders at least thirty (30) days before the annual anniversary date for each additional year. b. Any purchase orders that City issues will reference, incorporate, and be subject to the terms and conditions of this EA. No expressly conflicting terms contained in a purchase order or ordering document will be binding. City shall employ non -conflicting supplemental terms as evidenced by its attached Purchase Order. The City will process all orders and deliveries pertaining to this EA through City's centralized point of contact. c. City will include the following information in each purchase order: (1) Esri customer number, the ship -to address, and bill -to address as identified in Appendix D. (2) Purchase order number. (3) Applicable annual payment due and name of Licensee. (4) On the face of the purchase order, the following printed statement: "Governed by and subject to Enterprise Agreement No. 312716." d. Esri will provide Authorization Codes to activate the nondestructive copy protection program that enables City to download, operate, or allow access to the EA Products listed in Appendix A. e. Delivery of updates/new versions of EA Products will be made in the same manner. If requested by City, Esri will deliver a limited number of sets of backup media as provided in Appendix B to the ship -to address identified in Appendix D EA Points of Contact, FOB destination with shipping charges prepaid. City may purchase additional backup media sets at the prices in effect at the time of purchase. Delivery or receipt of tangible media could cause prior and future license fees to be subject to taxes. f. City shall track the Deployment status of EA Products. 5.2 Annual Report of Deployments. At each anniversary date and ninety (90) days prior to the expiration date of this EA, City shall provide a written report, as set forth in Appendix C, to Esri detailing all Deployments made, including preexisting and Rolled -In Software. The report will be subject to audit by an authorized representative of Esri. 5.3 Esri User Conference Registration. Esri shall provide Esri User Conference registrations to City annually during the term of this EA in the quantities set forth in Appendix B. City is responsible for distributing the registrations to Licensees. Third parties may not represent or attend on behalf of City at any Esri User Conference. ARTICLE 6—POINTS OF CONTACT; NOTICES 6.1 Points of Contact. In Appendix D, each party shall identify points of contact for administrative and technical issues. 6.2 Legal Notices. Except as otherwise set forth in this EA, any notice, report, demand, or other communication will be made in writing in English; sent by courier, registered or certified airmail, or facsimile or other electronic transmission; and confirmed when sent by courier or by registered or certified airmail, properly addressed to the appropriate party at the address set forth below, until changed by notice in writing by either party hereto. If sent by courier or airmail, notice will be effective upon the earlier of confirmed receipt or seven (7) days from the date of deposit with the courier service or post office. If sent by electronic transmission, notice will be effective one (1) business day from the date of transmission, provided confirmation of receipt is made. Notices will be given at the following addresses: To: Esri To: City 380 New York Street as listed in Appendix D Redlands, CA 92373-8100 Attn.: Manager, Contracts and Legal E5 t 2G Page 4 of 34 09/02/2016 312716 09/27/2016 Fax: 909-307-3420 Email: le aalnotices[a' esri.com ARTICLE 7—TERM, TERMINATION, AND EXPIRATION 7.1 Term. The term of the EA will commence on the Effective Date and be for the period listed in Appendix B unless this EA is terminated earlier as provided herein. 7.2 Termination for a Material Breach; Esri may terminate this EA for a material breach by Licensee, Licensee will be given a period of thirty (30) days from date of written notice to cure any material breach. Upon termination of this EA by Esri for a material breach by Licensee, all licenses Deployed will also terminate, and the full amount of unpaid EA Fees will be due and payable by City within thirty (30) days from the date of termination. Licensees shall uninstall, remove, and destroy all EA Products; training materials; and any whole or partial copies, modifications, or merged portions in any form. City shall deliver evidence of such destruction to Esri (e.g., certification letter). Licensee may continue to use Rolled -In Software, provided Licensee complies with the terms and conditions of the License Agreement. Further, Esri agrees that Licensee is not required to pay a maintenance reinstatement fee for lapsed maintenance for Rolled -In Software if Licensee orders maintenance at time of EA termination. Other items that may be included in this EA—such as EEAP, Esri Virtual Campus annual user license, access codes, Virtual Campus dollar credits, and Esri User Conference registrations—will also terminate if this EA is terminated. This EA may be terminated for convenience except as follows. 7.3 Termination for Non -Appropriation of Funds or Lack of Funds. City's obligation to pay the amounts due under this EA may be contingent upon appropriation of funds for this EA ("Lack of Funds"). Either party may terminate this EA for Lack of Funds by providing a written termination for Lack of Funds notice no less than sixty (60) days prior to the next annual EA payment. In all such cases, the effective date of the termination will be the last day of the EA year for which City has paid. In the event of Non -Appropriation of Funds or Lack of Funds the City will not pay beyond the effective cancellation date and will not be liable for any cancellation penalty, surcharge, fee, or similar charge or imposition. Under no circumstances may City deploy additional copies of the EA Products upon termination of the EA for Lack of Funds. a. City may retain a combination of some or all the perpetual Deployed EA Products and all Rolled -In Software of like products identified in Appendix A, subject to the following conditions: i. City will report the quantity and types of EA Products Deployed as of the termination date; ii. Esri will calculate the aggregate value of EA Products Deployed, excluding Online Services or term based Products, at then -current list price, plus the aggregate cost of maintenance for the Deployed EA Products and Rolled -In Software (collectively, the "Deployed EA Value"); iii. Esri will deduct dee value of all other deliverables, including but not limited to Online Services, term based Products training, virtual campus, workshops, and services, provided as part of this EA from the total EA Fees paid by City, as set forth on Appendix B, at the date of termination, ("Remaining Value"); iv. If the Deployed EA Value is less than or equal to the Remaining Value, Licensee may retain all Deployed perpetual EA Products and Rolled -In Software at the maintenance version current as of the date of termination. No refund will be provided to City for unused fees. v. If the Deployed EA Value is greater than the Remaining Value, Licensee will inform Esri of the quantities of Deployed EA Products and Rolled -in Software that it will retain at the maintenance version current as of the date of termination, such that the aggregate Software and maintenance does not exceed the Remaining Value. Licensee will uninstall, remove and destroy all Deployed EA Products not retained. Rolled -In Software not retained at current maintenance will revert to the version that was current as of the start date of the EA term. b. After termination, Licensee must immediately uninstall, remove and destroy all Deployed EA Products not retained. All subscriptions, User Conference Passes, Training and other services will end at termination. Rolled -In software not retained at current maintenance will revert to the version that was current as of the start date of the EA term. c. Within thirty (30) days of termination of the EA for Lack of Funds, City will document in writing to Esri the total quantity and type of Products for which Licensee desires to obtain maintenance, if any. Payment of maintenance fees will be effective from the date of the EA termination. d. Licensee's use of any retained Products and Rolled -In Software following termination of the EA Agreement will be in accordance with the License Agreement. If at a future date Licensee chooses to renew its Rolled -In Software or any other retained Products, Licensee will be required to pay maintenance retroactive to the date of termination in order to receive the most current version and support. E512G Page 5 of 34 {1910212016 312716 09!27/2016 7.3.1 Termination for Convenience. The City, acting by and through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Provider at least forty-five (45) calendar days prior to the effective date of such termination. In such event, the City shall pay to Provider compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Provider for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages.; or 7.32 This Agreement may be terminated, in whole or in part, at any time by mutual written consent of the parties hereto. In such event, the City shall not be obligated to pay any amounts to Provider for Services rendered by Provider after the date of termination, but the parties shall remain responsible for any payments that have become due and owing as of the effective date of termination. In no event shall the City be liable to Provider for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 7.3.3 Subsections a through d found above in section 7.1 Termination for Non -Appropriation of Funds or Lack of Funds applies to sections 7.3.1 and 7.3.2 to the same extent applicable to a termination for non -appropriation of funds. City Deployment of additional copies of the EA Products is prohibited upon a termination of the EA for convenience under either section 7.3.1 or 7.3.2. 7.4 License Term and Use upon Expiration of EA Term. Upon full payment of EA Fee and expiration of this EA, the License Agreement will survive, and Licensee may continue to use the Deployed EA Products and Rolled -In Software in accordance with the terms and conditions set forth in the License Agreement. Licensee shall notify Esri of the quantity and type of licenses for which Licensee elects to purchase standard maintenance. If maintenance is not ordered for Rolled -In Software or EA Products upon expiration of the EA, it lapses. If, later, Licensee decides to reinstate maintenance, Licensee must pay maintenance reinstatement fees from the date of EA expiration (i.e., back maintenance fees. City shall not deploy additional copies of the EA Products beyond the quantities in use upon termination or as of the date of expiration. ARTICLE 8 --CONFIDENTIALITY 8.1 Esri Confidential Information. A. Certain terms and conditions of this EA are confidential and proprietary information of Esri. Except as provided herein, City shall not publish or disclose the EA (or contents) to any third party without Esri's prior written consent Disclosure may be made only to those City employees, contractors, or consultants of Licensee (e.g,, outside counsel or accountants) who have a need to know to perform their duties or work on behalf of Licensee, and have an obligation of confidentiality. No other portions of the EA may be disclosed to a contractor or consultant. To the extent that any such disclosures may be required by law, City shall make a good faith effort inform Esri of the requested disclosure, with a reasonable description of the requested disclosure and identification of the requester, in sufficient time for Esri to assert any objection Esri may have to such disclosure with the appropriate administrative or judicial body. Notwithstanding the foregoing, SSRI understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, including Section 119.0701, Fla. Stat. as applicable, which is deemed as being expressly incorporated by herein and, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. B. Should Provider determine to dispute any public access provision required by Florida Statutes, then Provider shall do so at its own expense and at no cost to the City. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1830, Via email at PublicRecordsLW]miamip_ov.com, or regular email at E5120 Page 6 of 34 09/02/2016 312716 0W27/2016 City of Miami Office of the City Attorney, 444 S« 2n' Avenue, 9t" FL, Miami, FL 33134. ARTICLE 9—RELATIONSHIP OF THE PARTIES The EA does not constitute a partnership, joint venture, or agency between Esri and City. Neither Esri nor City will hold itself out as such, nor shall Esri or City be bound or become Iiable because of any representation, action, or omission of the other. ARTICLE 10—FORCE MAJEURE If the performance of any obligation under this EA is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war; threat of or actual terrorist act, cyber -attack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any government agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction. ARTICLE 11—GIS STANDARD This EA will not be construed or interpreted as an exclusive dealings agreement, and City reserves the right to purchase from third parties any of their requirements for GIS software or related services. City agrees that Esri may from time to time publicize the existence of the EA in reputable trade journals. ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12.1 Esri Collaborate Original Equipment Manufacturer (OEM) Bundled or Embedded Items/Services. Certain Esri partners are authorized to either embed limited portions of Esri technology or bundle Esri products or services with the partner's application or service under Esri's OEM or Solution OEM programs, Partner pricing and product bundling is independent of this EA, and each partner markets under its own business model and pricing. Licensee shall not be entitled to or seek any discount from the OEM partner or Esri, directly or indirectly, as a result of or based on the availability of such Products as EA Products under this EA. Licensee shall not be entitled to or seek to decouple Esri's technology or products/services from the partner's bundle or solution. in addition, such Products or any component thereof included in the OEM software program or product, will be licensed through the license agreement provided by the OEM partner and not through this EA. 12.2 EA Products—Limited Quantity or Unit -Priced Items. Esri reserves the right to exclude new Products from uncapped Deployment. New Products may contain or be developed with (i) newly acquired technology obtained through a significant investment or (ii) third -party intellectual property that requires a unit -based royalty fee or prohibits Deployment under a site or enterprise license. Such items can be made available to City on a limited -quantity basis or as unit -priced items. 12.3 Obsolescence. During the term of this Agreement, some of the items listed in Appendix A may become obsolete, will no longer be commercially offered, or may no longer be available for Deployment. Licensee may continue to use EA Products that have been deployed, but support and upgrades for older items may not be available. EA Maintenance and maintenance and availability of EA Products identified in Appendix A will be subject to each item's Product Life Cycle Support Status, which can be found at http://support.esri.com/en/content/productlifecycles by selecting the product type and clicking the Product Life Cycle link for specific product plans. Esri's Product Life Cycle Support Policy, available at http://help.arcgis.com/en/shared/product-life-cycle/ProductLifeCycle.pdf, covers the support phases and overall support plans. E512G Page 7 of 34 09/02/2016 312716 09/27/2016 ARTICLE 13—GENERAL PROVISIONS 13.1 The General Provisions and Limitations of Liability of the License Agreement will apply to the entire EA, If there is a conflict among any of the other terms and conditions in the various documents, the order of descending precedence will be as follows: (1) Signature Page, (2) E512G Enterprise License Terms and Conditions, (3) Addendum 1, Product -Specific Terms of Use, and (4) E204 General License Terms and Conditions. In the event this EA includes the Esri Enterprise Advantage Program, the terms and conditions of the Enterprise Advantage Program Addendum will take precedence over the provision of the EA with respect to the Enterprise Advantage Program. Except as otherwise expressly provided herein, any amendment or Addendum to this EA must be in writing and signed by an authorized representative of each party. 13.2 Survival of Certain EA Clauses. The provisions of Section 7.4, Article 8 and Article 13 of this Enterprise License Terms and Conditions document (E512G) will survive the expiration or termination of this EA. ARTICLE 14 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS Provider understands that agreements with local governments are subject to certain laws and regulations, including laws pertaining to public records, coriflict of interest, record keeping, etc. City and Provider agree to comply with and observe all such applicable federal, state and local laws, rules, regulations, codes, and ordinances, as they may be amended from time to time. Provider further agrees to include in all of Provider's agreements with subcontractors for any Services related to this Agreement this provision requiring subcontractors to comply with and observe all applicable federal, state, and local laws rules, regulations, codes, and ordinances, as they may be amended from time to time. ARTICLE 15 INDEMNIFICATION General Indemnity and infringement indemnity are covered in the License Agreement. ARTICLE 16 RESOLUTION OF AGREEMENT DISPUTES Provider understands and agrees that all disputes (except solely for those disputes concerning the City's infringement, misuse or misappropriation of Esri or Esri's licensor's intellectual property rights) City's violation of any applicable law between Provider and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to Provider being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), the City Manager's decision shall be approved or disapproved by the City Commission. Except as provided in the first sentence of this Article. Provider shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation ninety (90) days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. ARTICLE 17. MISCELLANEOUS PROVISIONS A. This Agreement shall be construed and enforced according to the laws of the State of Florida, except that US federal law shall govern in matters of intellectual property. Venue in any proceedings between the parties shall be in Miami - Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the E512G Page S of 34 09/02/2016 312716 09/2712016 City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. Provider shall comply with all applicable laws, rules, and regulations in the performance of this Agreement, including but not limited to licensure, and certifications required by law for professional service providers. F. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. The City Manager shall have the sole authority to extend, to amend or to modify this Agreement on behalf of the City. ARTICLE 18. INSURANCE Insurance requirements -professional services agreement I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Personal and Adv. Injury $ 1,000,000 Products/Completed Operations $ 1,000,000 B. Endorsements Required City of Miami listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement I1. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami Iisted as an additional insured III. `Yorker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. CyberFirst/Professional Liability/Errors and Omissions Coverage Claims Made E512G Page 9 of 34 09/42/2016 312716 09!27/2016 Each Claim $1,000,000 General Aggregate Limit $1,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. Policies to which this Article refer have a blanket endorsement honoring any contractual requirement to add another entity as an additional insured, to include a waiver of subrogation in favor of such entity, or to identify the coverage as primary. In these cases the certificate of insurance will be annotated to confirm that the entity is covered under the blanket endorsement. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above. The company must be rated no less than "A-" as to management, and no less than "Class V111" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. E5126 Page 10 of 34 09/02/2016 312716 09/27/2016 CITY OF MIAMI A Florida municipal corporation Lo Authorized Signature Printed Name: Daniel; J. Alfonso Title: City Manager Date: Attest: Todd Hannon, City Clerk Approved as to Insurance: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC (Esri) By: Authorized Signature Printed Name: Title: Authorized Officer / Representati Date: Ann -Marie Sharpe, Director, Risk Management Dept. Approved as to legal form: Victoria Mendez, City Attorney E512G page 1 I of 34 09/0212016 312716 09/2712016 APPENDIX A PRODUCTS AND DEPLOYMENT SCHEDULE City may deploy the EA Products up to the total quantity of licenses indicated below to Licensees during the term of this EA. Table A -i EA Products—Uncapped Quantities Product Total Qty. to Be Deployed ArcGIS for Desktop: ArcGIS for Desktop Advanced, Standard, and Basic (single and concurrent use) Uncapped App Studio Standard ArcGIS for Desktop extensions: ArcGIS 3D Analyst, ArcGIS Data Reviewer, ArcGIS Geostatistical Analyst, ArcGIS Network Analyst, AreGIS Publisher, ArcGIS Schematics, ArcGIS Spatial Analyst, ArcGIS Tracking Analyst and ArcGIS Workflow Manager (single and concurrent use) Uncapped Esri CityEngine Basic Single Use ArcGIS for Server: ArcGIS for Server Enterprise and W orkgroup (Advanced, Standard, and Basic) Uncapped Esri CityEngine Advanced Single Use ArcGIS for Server extensions: ArcGIS 3D Analyst, ArcGIS Geostatisticai Analyst, AreGIS Image Extension for Server, ArcGIS Network Analyst, ArcGIS Schematics, ArcGIS Spatial Analyst, ArcGIS GcoEvent Extension for Server, and ArcGIS Workflow Manager Uncapped ArcPad Six (6) ArcGIS Engine Uncapped Data Interoperability Desktop Extension One (1) ArcGIS Engine extensions: ArcGIS 3D Analyst, ArcGIS Engine Geodatabase Update, ArcGIS Network Analyst, ArcGIS Schematics, and ArcGIS Spatial Analyst (single and concurrent use) Uncapped Esri Development Network (EDN) N/A ArcGIS Runtime Uncapped ArcGIS Runtime extensions: ArcGIS 3D Analyst, ArcGIS Network Analyst, and ArcGIS Spatial Analyst (single use) Uncapped Mapping and Charting solutions: Esri Production Mapping for Desktop Uncapped Table A-2 EA Products—Capped Quantities Item Rolled -In Qty. (if applicable) Qty. to Be Deployed Total App Studio Standard Two (2) Annual Subscriptions 2 Esri CityEngine Basic Single Use Three (3) 3 Esri CityEngine Advanced Single Use One (1) 1 ArcPad Six (6) 0 6 Data Interoperability Desktop Extension One (1) 0 l Esri Development Network (EDN) N/A Three (3) Annual Subscriptions 3 ES 12G Page 12 of 34 09/02/2016 312716 09/27/2016 Product Number of Subscriptions Named Users per Subscription Annual Credits per Subscription ArcGIS Online Level 5 Subscription (General Use), Year I One (1) 500 62,500 ArcGIS Online Level 6 Subscription (General Use), Years 2-5 One (1) 1,000 110,000 ArcGIS Online Additional Named Users (General Use), Years 3 - 5 NIA 500 N/A Portal for ArcGIS (General Use), Year 1 One (1) 500 NIA Portal for ArcGIS (General Use), Years 2-5 One (1) 1,000 N/A Portal for AreGIS, Additional Named Users (General Use), Years 3 - 5 NIA 500 NIA ArcGIS Online (Public Safety) One (1) 300 17,500 Portal (Public Safety) One (1) 300 NIA Navigator for ArcGIS Ten (10) 5 N/A GeoPlanner for ArcGIS Level 1 Subscription One (1) 5 N/A Conununity Analyst Online Level 1 Subscription Two (2) 5 NIA Drone'-) Maps for ArcGIS Individual Subscription Two (2) 1 500 Please nate: The sena of the active named users for the ArcGIS Online and Portal for ArcGIS (General Use) subscriptions may not exceed the following amounts at any time.- Year inge:Year I — 500 named users Year 2 —1000 named users Years 3-5 —1500 named users The sunt of the active named users for the ArcGIS Online and Portal for ArcGIS (Public Safety) subscriptions may not exceed 300 at any time. E512G Page 13 of 34 09/02/2016 312716 09127!2016 APPENDIX B EA FEE SCHEDULE The EA Fee is $1,897,000. The EA Fee is in consideration of the EA Products, EA Maintenance, Esri User Conference registrations, and Esri Enterprise Advantage Program. Payments Year 1 Year 2 Year 3 Year 4 Year 5 EA Fee $375,000 $375,000 $375,000 $386,000 $386,000 $1,897,000 Number of Esri User Conference Registrations per Year Twelve (12) Southeast Regional Conference Five (S) Number of Tier l Help Desk Callers That May Contact Esri for Tier 2 Support Ten (10) Number of Sets of Backup Media, if Requested 5 Esri Enterprise Advantage Program (EEAP) 100 Technical Advisory Hours per Year 275 Learning and Services Credits per Year Support Cases for EDN One 10-Pack/Year Term of EA Five (5) Years from Effective Date E5I2G Page 14 of 34 09/02/2016 312716 09/27/2016 APPENDIX C CITY ANNUAL DEPLOYMENT REPORT SAMPLE REPORT—This report will be provided to Esri annually as an Excel spreadsheet or in a comparable format. Esri Annual EA License Deployment Report Customer Name Customer Number Date Prepared b PRODUCT Count PRODUCT Count Desktop -Concurrent Use (CU) ArcGIS for Server Deskto Sin le Use (SU) ArcGIS for Server Extensions Desktop Extensions Other E512G Page 15 ot'34 09/02/2016 312716 09/27/2016 APPENDIX D EA POINTS OF CONTACT Either party may change its point of contact by written notice to the other party. 1. Esri point of contact for order processing issues: Name: Customer Service Esri 380 New York Street Redlands, CA 92373-8100 Email: service g esri.com Phone: 888-377-4575 Fax: 909-307-3083 2. Esri contact for Tier 2 Support issues: Email: supportc�'esri.com Phone: 909-793-3774 (within the United States only) Fax: 909-792-0960 Web: sunport(desri.com 3. City centralized point of contact for order release and administrative issues: Name: Kevin Burns Phone: 305-416-1911 Fax: 305-400-5270 Email: k.burns[;miamigov.corn 4. All invoices to City will be mailed to the address listed below (unless otherwise stated on the purchase order): City Office: Accounts Payable Name: pavables[miamigov.com Address: 444 SW 2nd Avenue, 6t1i floor Miami, FL 33130 5. All deliverables to City will be shipped to the address listed below: City Office IT Department Name: Kevin Burns Address: 444 SW 2"d Avenue, 5'� floor Miami, FL 33130 6. All notices to City will be mailed to the address listed below: City Office: City Attorney City Office: Procurement Director Name: Victoria M6ndez Name: Annie Perez, CPPO Address: 444 SW 2nd Avenue, 9" floor Address: 444 SW 2nd Avenue, 6i6i floor Miami, FL 33130 Miami, FL 33130 E125 Page 16 of 34 08!0612015 312716 09127/2016 APPENDIX E TIER 1 HELP DESK AUTHORIZED INDIVIDUALS Below are named Tier 1 Help Desk individuals authorized to seek Tier 2 Support from Esri. Substitutes/Changes to Tier I Help Desk authorized individuals may be made by written notice to Esri. 1. Name: Mariela C. Del Rio 7, Name: Address: 444 SW 2 AVE Address: Fax: MIAMI, FL 33130 kburns@miamigov.com 6. Name: Phone: (305) 4I6-1088 Phone: Phone: Fax: Fax: Fax: Email: Email: mdelrio@miamigov.com Email: 2. Name: Osmel Lopez S. Name: Address: 444 SW 2 AVE Address: MIAMI, FL 33130 Phone: (305) 416-1778 Phone: Fax: Fax: Email: olopezcr'miamigov.com Email: 3. Name: Matthew Baker 9. Name: Address: 444 SW 2 AVE Address: MIAMI, FL 33130 Phone: (305) 416-1736 Phone: Fax: Fax: Email: mbakerlamiamigov.com Email: 4. Name: Arturo Duque Address: 444 SW 2 AVE MIAMI, FL 33130 Phone: (305) 416-1567 Fax: Email: aduque@miacnigov.com 5. Name: Kevin Burns Address: 444 SW 2 AVE MIAMI, FL 33130 Phone: (305) 416-1911 Fax: Email: kburns@miamigov.com 6. Name: Address: Phone: Fax: Email: E512G ?age 17 of 34 09/02/2016 312716 09/27/2016 APPENDIX F BY ACCEPTING THIS ORDER, VENDOR AGREES TO THE FOLLOWING TERMS AND CONDITIONS 1, ACCEPTANCE OF PURCHASE ORDER: A Purchase Order is given for immediate acceptance by the VENDOR. Unless promptly notified to the contrary, the CITY will assume the VENDOR accepts the order as written and will make delivery as specified on the document. 2. ENTIRE AGREEMENT: All specifications, drawings, and data submitted to the VENDOR with this order or the solicitation for this order are hereby incorporated herein and made a part hereof. This contract contains the entire agreement of the parties. No charge in quantities, prices, specifications, terms, or shipping instructions will be allowed except on written authority of the CITY of Miami Purchasing Department. Any additional or different terms and conditions proposed by VENDOR are objected to and hereby rejected unless specifically agreed to by the CITY. 3. INDEMNIFICATION: The VENDOR hereby agrees to indemnify, save, and hold harmless the CITY from all claims, demands, liabilities, and suits of any nature whatsoever arising out of, because of, or due to the breach of the Agreement by the VENDOR, its agents or employees, or due to any act or occurrence of omission or commission of the VENDOR, its agents employees. It Is specifically understood and agreed that this indemnification agreement does not cover or indemnify the CITY for its own negligence or breach of contract. 4. MODIFICATION: The CITY may by written Order, make changes in the specifications if such changes are within the general scope of the Contract. If such changes cause an increase or decrease in the VENDOR'S costs or in time required for performance of the Contract: (a) the VENDOR shall promptly notify the CITY and assert its claim for adjustment and an equitable adjustment shall be made by the CITY and the Contract modified accordingly. Nothing in this clause shall excuse the VENDOR from performing. 5. DEFAULT: Time is of the essence of this contract and if delivery of acceptable items or rendering of services is not completed by the time promised, the CITY reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice effective when received by VENDOR; as to stated items not yet shipped or services not yet rendered, and to purchase substitute items or services elsewhere and charge the VENDOR with any and all losses incurred. 6. TRANSPORTATION CHARGES: Transportation expenses for all shipments shall be prepaid to destination. Shipments sent C.Q.D. or freight collect without the CITY'S written consent will not be accepted and will, at VENDOR'S risk and expense be returned to VENDOR. No charges will be allowed by the CITY for transportation, packing, cartage or containers unless otherwise authorized in the Purchase Order. 7. UNAVOIDABLE DELAY: If the VENDOR is delayed in the delivery of goods purchased under the Purchase Order by a cause beyond its control, VENDOR must immediately upon receiving knowledge of such delay, give written notice to the CITY and request an extension of time. The CITY shall examine the request and determine if the VENDOR is entitled to an extension. 8. QUANTITY: Quantities furnished in excess of those specified in the Purchase Order will not be accepted and will be held at VENDOR'S risk and expense. 9. INSPECTION: Materials or equipment purchased are subject to inspection and approval at the CITY'S destination. The CITY reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings, or data of VENDOR'S warranty (expressed or implied), Rejected materials or equipment shall be removed by, or at the expense of, the VENDOR promptly after rejection. 10. WARRANTY: The VENDOR warrants that all goods and services furnished hereunder will conform in all respects to the terms of this order, including any drawings, specifications, or standards incorporated herein, and that they will be free from latent and patent defects in materials, workmanship and title, and will be free from such defects in design. In addition, VENDOR warrants that said goods and services are suitable for, and will perform in accordance with, the purpose for which they are purchased, fabricated, manufactured and designed or for such other purposes as are expressly specified in this order. The CITY may return any nonconforming or defective items to the VENDOR or require correction or replacement of the item at the time the defect is discovered, all at the VENDOR'S risk and expense . Acceptance shall not relieve the VENDOR of its responsibility. 11. REGULATORY COMPLIANCE: VENDOR represents and warrants that the goods or services furnished hereunder (including all labels, packages, and containers for said goods) comply with all applicable standards, rules and regulations in effect under the requirements of Federal, State and focal laws, including the Occupational Safety and Health Act as amended, with respect to design, construction, manufacture or use for their intended purpose of said goods or services. VENDOR shall furnish "Material Safety Data Sheets" in compliance with the Florida Right To Know Law, Florida Statutes, Chapter 442. 12. ROYALTIES AND PATENTS: VENDOR shall pay all royalties and license fees. VENDOR shall defend all suits or claims for infringement of any patent, copyright or trademark rights and shall save the CITY harmless from loss on account thereof. 13. PAYMENT: Payments will be made in accordance with the terms on the face of this order, or the VENDOR'S invoice, whichever are more favorable to the CITY and payment date therefor shall be calculated from the receipt of invoice or final acceptance of the goods, whichever is later. 14. IDENTIFICATION: Invoices in duplicate with prices set out and giving the correct Purchase Order Number must be sent to the address shown on the face of this order, otherwise payment of VENDOR'S account may be delayed. The Purchase Order Number shall appear on all invoices, boxes, packages, shipping documents and correspondence, and the list of contents shall be enclosed in each box or package. 15. TERMINATION: CITY may, at anytime, terminate this order in whole or in part by written or telegraphic notice or verbal notice confirmed in writing. Upon termination for convenience of Buyer, the Buyer will assume responsibility for specific contractual or scheduled financial commitments made prior to notice of termination. Any and all services, property, publications, or materials provided during or resulting from the Contract shall become the property of the Buyer. If, however, termination is occasioned by the VENDOR'S breach of any condition hereof, including breach warranty, or by VENDOR'S delay, except due to circumstances beyond the VENDOR'S control and without VENDOR'S fault or negligence, VENDOR shall not be entitled to any claim or costs or to any profit referred to in said clause, and Buyer shall have against VENDOR all remedies provided by law and equity. 16. TAXES: CITY of Miami is exempt from State and local taxes. Exemption number is printed on the reverse side hereof. This Order shall serve as the exemption certificate. 17. LAW GOVERNING: This contract shall be governed by and construed according to the laws of the State of Florida. 18. ASSIGNMENT: Any assignment of this Purchase Order, including any performance of work hereunder, in whole or in part, or monies due hereunder, shall be void unless consented to by CITY in writing and CITY shall have no obligations to any assignee of VENDOR under any assignment not consented to in writing by THE CITY. 19. TERMS: The order total shall be paid by the CITY upon receipt of invoice from VENDOR which shall be subject to verification as to quantities and quality of goods delivered or services performed. 20. TAX: VENDOR doing business with the CITY shall not be exempt from paying sales tax to their suppliers for materials to fulfill contractual obligations with the CITY, nor shall any VENDOR be authorized to use the CITY Tax Exemption Number in acquiring such materials. 21. LOCAL RESOURCES: VENDOR shall give first priority to utilizing resources in the disaster area, including but not limited to procuring E 125M Page 18 of 34 08/06/2015 supplies and equipment, awarding sub -contracts, and employing workmen. 22. PAYMENT CHANGES: Payments will only be made to the company and address asset forth on Purchase Order unless the VENDOR has requested a change thereto on official company letterhead, signed by an authorized officer of the company. 23. UNIFORM COMMERCIAL_ CODE: The Uniform Commercial Code (Chapter 672, Florida Statutes) shall prevail as the basis for contractual obligations between the VENDOR and CITY for any terms and conditions not specifically stated in this Purchase Order. 24. INSURANCE: In the event that insurance is required by the CITY in connection with this Purchase Order, VENDOR shall provide an Insurance Certificate, in a form acceptable to the CITY, naming the CITY as an additional insured, as proof of compliance therewith which said certificate shall constitute part of this Purchase Order. 25. BONDING: The CITY reserves the right to require the VENDOR to post a performance and payment bond in the amount of One Hundred percent (100%) of the Purchase Order total, upon award or at such time deemed necessary by CITY. E 125M Page 19 of 34 0$!06/2015 (;esri ' ESRI ENTERPGIREEMENT (E125M)ROGRAM Esri, 380 New York St., Redlands, GA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 EEAP AGREEMENT NO. 312730 This Esri Enterprise Advantage Program Agreement ("EEAP Agreement") is entered into by and between Environmental Systems Research Institute, Inc. ("Esri" or "Provider"), a California corporation, located at 380 New York Street, Redlands, California 92373-8100, and The City of Miami ("Licensee"), a Florida corporation, located at 444 SW 2"d Avenue, 5" floor, Miami, FL 33130. Esri offers the Esri Enterprise Advantage Program to Licensees that are current on Esri software maintenance and implementing or have implemented a geographic information system (GIS) enterprise solution based on Esri technology. Licensee agrees to contract with Esri for and Esri agrees to provide Licensee with certain enhanced consulting services, training, Premium Support Services (PSS), and Managed Services available under the Esri Enterprise Advantage Program for the authorized Licensee location as described herein. The Esri Enterprise Advantage Program is not designed for Esri to provide project -specific professional services such as custom application or database development for solutions or applications. If these types of professional services are required, Licensee will need to enter into an agreement for use of Esri Professional Services. THIS EEAP AGREEMENT DOES NOT MODIFY THE TERMS OF THE LICENSE AGREEMENT GOVERNING LICENSEE'S USE OF SOFTWARE, DATA, ONLINE SERVICES, AND DOCUMENTATION, ARTICLE 1—DEFINITIONS Capitalized terms that have not been defined in this EEAP Agreement shall have the meaning found in the applicable Esri License Agreement. 1.1 "Activity Description" means the confirmation email or document received from Licensee that describes the number of Learning and Services Credits Esri estimates is required to perform an activity and authorizes Esri to begin work based on such estimate. 1.2 "Authorized EEAP Contact" means the Licensee point of contact identified on the signature page of this EEAP Agreement. 1.3 "End User" means any third party or entity that accesses or uses any Licensee Content via Licensee Website. 1.4 "Esri Mobile Lab" means Esri hardware, shipped to domestic US Licensee site training events if Licensee does not have the required hardware to host a scheduled training event, consisting of laptops preconfigured with Esri Software, Training Materials, hard drives, power cords, and network switches. 1.5 "Hosting" means the business of housing and making accessible Licensee Content via the Internet. 1.6 "License Agreement" means the applicable license agreement incorporated by this reference that is E125M Page 20 of 34 08106/20115 a. Found at http://www.esri.corn/legal/soRware-license and composed of the General license Terms and Conditions (E204) and Exhibit 1, Scope of Use (E300), and available in the installation process requiring acceptance by electronic acknowledgment, or b. A signed license agreement between Esri and Licensee that supersedes such electronically acknowledged license Agreement. 1.7 "Licensee Authorized Contact(s)" or "LAC" means up to two individuals selected by Licensee to report Premium Support Reports and work directly with Esri's Technical Account Manager (TAM) regarding all such reports. A Licensee that has purchased unlimited PSS may designate additional LAC upon payment of additional fees. 1.8 "Licensee Content" means items including, but not limited to, custom software applications owned or licensed by Licensee, photos, journal text, geospatial data, nongeospatial data, user interfaces, graphics components, and icons, plus any personally identifiable information, supplied by or on behalf of Licensee. 1.9 "Licensee Website" means Licensee Content viewed through a user interface and made available via the Internet under the domain name reserved for the website. 1.10 "Managed Services" means Hosting and the provision of the Managed Services Environment, enhanced by the provision of related services (such as system monitoring and support associated with providing Licensee access to the Managed Services Environment), required to make Licensee Content available to Licensee or Licensee's End Users. 1.11 "Managed Services Environment" means the hardware, Software, Data, Online Services, and network that Esri or its third -party suppliers/partners make available as the underlying environment for Hosting the Licensee Content. 1.12 "Premium Support Report(s)" means a communication via telephone or email by Licensee to Support Services regarding technical problems with Software, Data, or Documentation. 1.13 "Protected Information" means any information, whether in written or digital format, that incorporates content from a protected category, including, but not limited to, personally identifiable information, Customer Proprietary Network Information (CPNI), Protected Health Information (as it is defined by the Health Insurance Portability and Accountability Act of 1996 [HIPAA]), Unclassified Controlled Technical Information (as it is defined by DFARS Section 204.73), and data controlled by the International Traffic and Arms Regulations (ITAR) classified as other than EAR99, all of which may require a greater degree of control, monitoring, and security than is typically established for Esri's Managed Services offering. 1.14 "PSS" means Premium Support Services, which is a prioritized incident management and technical support program as further described at http://support. esri. com/en/support/premium. 1.15 "Renewal Period" means any one (l) -year extension of this EEAP Agreement. 1.16 "Secure Formats" means object code, executable code, or similar formats. 1.17 "Student(s)" means a registered participant for a specific training course, Licensee coaching services, or training -related services. 1.18 "Technical Account Manager" (TAM) means a designated support resource who acts as the primary point of contact to Licensee for the purpose of coordinating Premium Support Reports through Esri's support processes. 1.19 "Term" means the initial term of this EEAP Agreement as described in Section 7.1. 1.20 "Training Materials" means digital or print content required to complete a course, which may include, but is not limited to, workbooks, data, concepts, exercises, and exams. 1.21 "Work Product" means reports, documented analysis, sample code, prototype/unsupported code, or technical memorandums provided as a result of the consulting services performed under this EEAP Agreement. ARTICLE 2--ESRI ENTERPRISE ADVANTAGE PROGRAM 2.1 Esri Enterprise Advantage Program Description. The Esri Enterprise Advantage Program is a menu of consulting E 125M Page 21 of 34 08/06/2015 services, training, PSS, and Managed Services that provides Licensee with the flexibility to select components that best meet its needs. The Esri Enterprise Advantage Program includes the following components as further described at www.esri.com /services/eean/components, which may be changed from time to time. a. Technical Advisor. Licensee will receive up to the number of Technical Advisor hours ordered. Licensee may elect to retain additional Technical Advisor hours for a supplemental price. b. Annual Accoiint Planning Session. A one {i} -day annual account planning and review meeting. c. Technical Work- Plan. A collaboratively developed document designed to drive the program's implementation through definition of Licensee's GIS vision, goals, and objectives. d. Learning and Services Credits. Licensee will receive the number of Learning and Services Credits ordered. Licensee may use the credits toward any combination of consulting services support, training, PSS, or related travel expenses. Licensee may order, for an additional price, additional Learning and Services Credits. Learning and Services Credits may be exchanged as described at the following website: http://www.esri.coin/serviccs/eeap/components#learning. Esri will provide the Authorized EEAP Contact with a monthly report outlining usage of Esri Enterprise Advantage Program Learning and Services Credits to date. e. Quarterly Technology Webcast. Esri will provide an email invitation to the Authorized EEAP Contact for a quarterly webcast presenting business and technical information related to enterprise GIS. 2.2 LEARNING AND SERVICES CREDIT USE 2.2.1 Current on Maintenance. Licensee must remain current on standard maintenance during the Term of this EEAP Agreement. Standard maintenance is described at http://www.esri.com/leeal, which may be changed from time to time. 2.2.2 Authorization of Credit Use. Licensee will contact its Account Manager or Technical Advisor to consume Learning and Services Credits for a particular request. Esri will submit to Licensee a Learning and Services Credit estimate by email for confirmation and authorization to use the credits. This confirmation email or document is hereafter referred to as an Activity Description. The total credits quoted in the Activity Description will be drawn from the unused Learning and Services Credits available, in a single transaction, upon Esri's receipt of approval via email from the Authorized EEAP Contact. 2.2.3 Travel and Per Diem. Any Esri travel and per diem will be quoted separately. Licensee may direct Esri to use credits for travel and per diem, as stated in Esri Enterprise Advantage Program Description, Section 2.1 above, or Licensee will issue a purchase order and Esri will invoice Licensee for the travel and per diem expenses as described below in Article 6. All travel costs and expenses must be previously authorized in written per applicable City policies contained herein and must comply with all limits in Section 112.061, Fla. Stat. 2.2.4 Notification of Consumed Credits. Esri will notify Licensee in the event the authorized Learning and Services Credits are consumed prior to completion of the requested work. Licensee may elect to direct use of additional credits, if available; procure additional Learning and Services Credits; or notify Esri to stop work on such requested work. Esri reserves the right to discontinue work when the authorized credits are consumed. 2.2.5 Review of Proposed Activities. Any activities proposed to be completed under the Esri Enterprise Advantage Program will be subject to review and approval by Esri to ensure alignment with the intent of the program. 2.3 Defense or Military Application. At the time the Learning and Services Credits are requested or before any services are provided by the Technical Advisor, Licensee will inform Esri if any of the requested services, consulting, training, or support provided by Esri is directly related to a defense article or for a military application. ARTICLE 3—OWNERSHIP; LICENSE GRANT 3.1 For Training 3.1.1 Software. The terms of the Esri License Agreement shall be applicable to all Licensee course participants and for all Esri's Software, Data, Online Services, and Documentation used by Student during any training event. Esri may issue temporary Software licenses when there is an insufficient number of Software licenses available at Licensee's training facility. Upon conclusion of the training event, Licensee shall uninstall the temporary Software licenses and return to Esri any media provided. E 125M Page 22 of 34 08/06J2015 3.1.1 Training Materials. This EEAP Agreement gives Student certain limited rights to use electronic and tangible versions of the Training Materials. Esri and its licensor(s) retain exclusive rights, title, and ownership to the copy of Training Materials licensed under this Agreement. Training Materials are protected by United States copyright laws and applicable international copyright treaties and/or conventions. All rights not specifically granted in this Agreement are reserved to Esri and its licensor(s). Esri grants to Student a personal, nonexclusive, nontransferable license to use Training Materials for Student's own training purposes. Student may run and install one (1) copy of Training Materials and reproduce one (1) copy of Training Materials. Student may make one (1) additional copy of the original Training Materials for archive purposes only, unless Esri grants in writing the right to make additional copies. 3.1.3 Prohibited Uses. Training Materials are intended solely for the use of the training of the individual Student who registered and attended a specific training course. S tudent may not a. Separate the component parts of the Training Materials for use on multiple systems or in the cloud, use in conjunction with any other software package, and/or merge and compile into a separate database(s) or documents for other analytical uses; b. Make any attempt to circumvent the technological measure(s) (e.g., software or hardware key) that effectively controls access to Training Materials; c. Remove or obscure any copyright, trademark, and/or proprietary rights notices of Esri or its licensor(s); or d. Use audio and/or video recording equipment during a training course. 3.1.4 Licensee -Supplied Training Data. Licensee will retain ownership of any Licensee -supplied data. 3.2 FOR WORK PRODUCT 3.1.1 Ownership. Except as specifically granted in this EEAP Agreement, Esri or its licensors own and retain all right, title, and interest in the Work Product. 3.1.2 License Grant. Esri hereby grants to Licensee a nonexclusive, royalty -free license in the Work Product to use in connection with Licensee's authorized use of the Software and Data for support of which the Work Product was supplied. 3.2.3 Patents and Inventions. Each party shall retain title to any inventions, innovations, and improvements ("Inventions") made or conceived solely by its principals, employees, consultants, or independent contractors (hereinafter called "Inventors") during the term of this Agreement. The parties shall jointly own any Inventions) made or conceived jointly by Inventors from both parties. Except as provided below, where an Invention is jointly owned, each party shall share equally the costs of acquiring protection for the Invention and furnish the other joint owner with assistance reasonably required for acquiring protection. 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 is hereby given to Esri for Inventions relating to the Esri Software and shall otherwise not be unreasonably withheld by either party. 3.3 For PSS. The terms and conditions of the License Agreement for the affected Software will govern any updates, patches, hot fixes, or software provided pursuant to Esri's performance of the PSS ordered under this EEAP Agreement. 3.4 For Managed Services. Esri or its affiliates shall retain at all times the right, title, and interest in the Managed Services Environment. 3.5 LICENSEE CONTENT 3.5. l Ownership. All Licensee Content submitted by Licensee to Esri under this EEAP Agreement shall at all times remain the intellectual property of Licensee or its licensor(s). Rights maintained in intellectual property by Licensee or its licensor(s) shall mean any and all now known or hereafter known a. Rights associated with works of authorship throughout the universe, including, but not limited to, copyrights, moral rights, and mask works; b. Trademark and trade name rights and similar rights; c. Trade secret rights; d. Patents, designs, algorithms, and other industrial property rights; e. Other intellectual and industrial property rights of every kind and nature throughout the universe and however designated (including logos, "rental" rights, and rights to remuneration), whether arising by operation of law, E125M Page 23 of 34 08/06/2015 contract, license, or otherwise; and f. Registrations, initial applications, renewals, extensions, continuations, divisions, or reissues hereof now or hereafter in force (including any rights in any of the foregoing). Esri shall have no rights to such Licensee Content other than the limited right to use such content for the put -poses expressly set forth in Subsections 3.5.2 and 11.9 of this EEAP Agreement. 3.5.2 License to Licensee Content. During the term of the Activity Description, Licensee hereby grants to Esri and its affiliates permission to use Licensee Content to support the provision of Managed Services. Such permission shall include, but not be limited to, the grant of rights and license to manipulate, publish, distribute, and implement Licensee Content within the Managed Services Environment in any reasonable manner needed to support the provision of Managed Services. ARTICLE 4—WARRANTIES AND DISCLAIMERS 4.1 Warranties 4.1.1 Esri will perform its obligation under this EEAP Agreement in a professional and workmanlike manner. 4.1.2 Esri warrants for a period of ninety (90) days after delivery of the services that the services will conform to professional and technical standards of the software industry. 4.1.3 During the terns of the Managed Services as described in the Activity Description, Esri warrants that the Managed Services will conform to the scope, descriptions, and assumptions for Managed Services set forth at http://wwtiv.esri.coni /services/emcs/ acka es. Licensee's exclusive remedy and Esri's entire liability for breach of the limited warranty set forth in this article shall be limited, at Esri's sole discretion, to a. Providing a correction or a workaround for the Managed Services, or b. Returning the Managed Services fees paid for up to three (3) months prior to Licensee's invocation of the limited warranty, provided Licensee ceases to use the Managed Services. 4.1.4 Esri warrants that the media upon which Training Materials is provided will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. Licensee's exclusive remedy and Esri's entire liability for breach of the limited warranties set forth in this Article 4.1.4 shall be limited, at Esri's sole discretion, to a. Replacement of any defective Training Materials; It. Repair, correction, or a workaround for Training Materials; or c. Return of the fees paid by Licensee for Training Materials that do not meet Esri's limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of the Training Materials and executes and delivers evidence of such actions to Esri. 4.1.5 Licensee warrants that Licensee Content will not a. Infringe or misappropriate any third -party intellectual property rights or proprietary rights; b. Violate any third party's privacy rights or any applicable law; or c. Contain or transmit to a third party any software viruses; worms; time bombs; Trojan horses; or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment. Except as prohibited by applicable law, Licensee agrees to defend, indemnify, and hold Esri harmless from and against any claim, action, liability, or demand arising out of a breach of the foregoing warranties. 4.2 Data Disclaimer. Data may contain nonconfornnities, defects, errors, or omissions. Licensee should verify data accuracy before use. ALL DATA THAT ESRI PROVIDES IS "AS IS" WITHOUT WARRANTY OF ANY KIND. 4.3 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL E 125M Page 24 of 34 08/0612015 OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT THE ESRI ENTERPRISE ADVANTAGE PROGRAM OR ANY WORK PRODUCT PROVIDED HEREUNDER WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT TOLERANT, OR FAIL-SAFE; OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. WORK PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 4.4 Internet Disclaimer. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE INTERNET (INCLUDING, WITHOUT LIMITATION, THE WEB) IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT a. THE INTERNET IS NOT A SECURE INFRASTRUCTURE; b. ESRI HAS NO CONTROL OVER THE INTERNET; AND c. ESRI IS NOT LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE LICENSEE WEBSITE. ARTICLE 5—LIMITATION OF LIABILITY 5.1 Disclaimer of Certain Types of Liability. ESRI IS NOT LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES;. INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS EEAP AGREEMENT OR USE OF THE WORK PRODUCT, HOWEVER CAUSED BY THE NEGLIGENCE OF ESRI. ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 5.2 General Limitation of Liability. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER FOR DIRECT DAMAGES SHALL IN NO EVENT EXCEED TWO TIMES THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE ESRI ENTERPRISE ADVANTAGE PROGRAM. 5.3 Applicability of Disclaimers and Limitations. The parties agree that Esri has set its prices and entered into this EEAP Agreement in reliance on the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties, THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 6 --COMPENSATION 6.1 Upon execution of this EEAP Agreement or the inception of a Renewal Period, Esri shall invoice Licensee as quoted for the Esri Enterprise Advantage Program annually in advance. Fees for additional Learning and Services Credits or Technical Advisor Services will be invoiced upon receipt of Licensee's order. Licensee shall pay Esri within thirty (30) calendar days of receipt of invoice. 6.2 Pricing for annual program renewals and new or additional Esri service offerings will be in accordance with Esri's most current price schedule at the time of purchase or renewal. 6.3 For Esri travel -related expenses, Licensee may elect to do one of the following: (I) use Learning and Services Credits to pay for Esri travel -related expenses including Esri's standard handling fee or (2) request a separate invoice for Esri's travel - related expenses including Esri's standard handling fee. Esri will invoice for all meals (excluding incidental expenses) on a E 125 M Page 25 of 34 08/06/2015 per diem basis in accordance with the per diem rates provided in 112.061, Fla. Stat. 6.4 ARTICLE 7 TERM AND TERMINATION 7.1 Initial Term; Renewals. This EEAP Agreement is effective as of the last date of signature on the signature page and expires one (1) year thereafter (the "Term"). Prior to the end of the Term, Esri may provide Licensee with a quotation for a Renewal Period. If Licensee accepts the quote, the following terms will apply: a. Esri will submit an invoice to Licensee for the quoted annual Esri Enterprise Advantage Program price and Licensee will pay in accordance with Section 6.1 of this EEAP Agreement; b. This EEAP Agreement will automatically extend for the Renewal Period; and c. The Learning and Services Credits remaining at the end of the initial Term or any subsequent Renewal Period will remain valid for use for a period not to exceed two (2) years following the initial purchase date. 7.2 Termination for Convenience. Licensee may terminate this EEAP Agreement without cause upon forty-five (45) days' prior written notice or may simply choose not to renew the EEAP Agreement. 7.3 Termination for Cause by Licensee. Licensee may terminate this EEAP Agreement for Esri's material breach of its obligations under this EEAP Agreement upon thirty (30) days' prior written notice to Esri providing Esri the opportunity to cure. If termination is due solely to Esri's failure to perform a material term of this EEAP Agreement, Esri will refund a prorated share of amounts paid to Esri equal to the credits not used by Licensee. 7.4 Termination for Cause by Esri. Esri may terminate this EEAP Agreement for Licensee's material breach of its obligations under this EEAP Agreement upon thirty (30) days' prior written notice to Licensee providing Licensee the opportunity to cure. In such event, Esri is not obligated to refund any amounts paid for credits not used. 7.5 Survival. Upon termination or expiration of this EEAP Agreement a. Technical Advisor, Annual Account Review, and Activity Description services will end as of the expiration or termination date; b. Unless either party terminates this EEAP Agreement for cause, Licensee may apply any unused Learning and Services Credits toward any consulting services support, training, premium support, or related travel expenses that are scheduled as of the termination or expiration date, provided that the Learning and Services Credits are used within three (3) months after the termination or expiration date. Any other unused Learning and Services Credits will expire thirty (30) days after the expiration or termination date; if Licensee renews the EEAP Agreement within this time period, any unused Learning and Services Credits will carry over for up to two (2) years from their purchase date, or termination of the EEAP Agreement, whichever comes fust; c. Unless Esri terminates this EEAP Agreement for Licensee's breach, Licensee retains the right to use any Training Materials and Work Product. ARTICLE 8—CONFIDENTI4,LITY OBLIGATIONS 8.1 Obligations Pertaining to PSS. It may be necessary for Esri or Licensee to disclose to the other party certain confidential information under this EEAP Agreement. Confidential information shall be designated by Disclosing Party in writing or orally and confirmed in writing within thirty (30) calendar days of disclosure as "Confidential," "Proprietary," "Trade Secret," or other similar term. Each party shall use the confidential information described above only for exchanging information needed to provide the PSS contemplated by this EEAP Agreement. Within sixty (60) days of termination of this EEAP Agreement, each party shall promptly return or destroy and provide a certification of destruction of the confidential information of the other party. Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. Should Provider determine to dispute any public access provision required by Florida Statutes, then Provider shall do so at its own expense and at no cost to the City. 8.2 Obligations Pertaining to Training. Except as described in Section 8.4, Esri or Licensee may disclose to the other party certain confidential information under this EEAP Agreement. The disclosing party shall identify the information as confidential information at the time of disclosure. Each party shall use the confidential information described above only for exchanging information needed to provide the training contemplated by this EEAP Agreement. Within fourteen (14) days of completion of the training, each party shall return or destroy and provide written notification of destruction of the other party's E 125M Page 26 of 34 08/06/2015 confidential information. 83 OBLIGATIONS PERTAINING TO WORK PRODUCT 8.3.1 Any Work Product provided to Licensee is deemed confidential information of Esri. Insofar as its rights may be legally restricted, Licensee agrees not to reverse engineer or decompile Work Product delivered in Secure Formats. For Work Product delivered in source code or other human -readable formats, Licensee will have met its obligations under this EEAP Agreement if its disclosure of Work Product is limited to such items in Secure Formats, provided that the means for reverse engineering, decompiling, or disassembling such Work Product is withheld from such disclosure, and the person or entity in receipt of such Work Product similarly agrees not to perform such acts or allow others to do so. 8.3.2 Except as provided in the preceding paragraphs relating to the Public Records Laws of Florida, Licensee shall not disclose the Work Product to employees or third parties without the advance written consent of Esri. However, Licensee may, without such consent, make such disclosures to employees to the extent reasonably required to allow Licensee to use the Software or Data in a manner authorized under applicable licenses. 8.3.3 Except as provided in the preceding paragraphs relating to the Public Records Laws of Florida, the disclosures permitted under this section shall not relieve Licensee of its obligation to maintain the Work Product 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 Work Product to employees or third parties as permitted in the preceding paragraph, Licensee shall inform such employees or third parties of the obligations in this EEAP Agreement and obtain their agreement to be bound by them. 8.4 Excluded Information. Licensee shall not provide to Esri or disclose to the instructor any data or information that is personally identified information (PII), including, but not limited to, Gramm -Leach -Bliley Act (GLBA)- or HIPAA-type data or information or critical infrastructure information (Cli) from the US Department of Homeland Security. Notwithstanding anything in this Agreement to the contrary, Esri retains the right to refuse acceptance of any nonpublic personal information (NPI) or customer information regardless of the form of disclosure. Esri will only accept receipt of information from Licensee that comports with the exceptions set forth in Subsections 4(B) and 4(C)(ii) of Section 509 of the Gramm -Leach- Bliley Act (PL 106-102) (15 USC Section 6809) and implementing regulations thereof 8.5 Other Exchange of Confidential Information. Any other exchange of confidential information between the parties shall require execution of a nondisclosure agreement subject to compliance with all applicable laws signed between the parties separate from this EEAP Agreement. ARTICLE 9—PREMIUM SUPPORT SERVICES TERMS AND CONDITIONS 9.1 Application. Should Licensee choose to use Learning and Services Credits for PSS, the terms of this Article 9 shall also apply, 9.2 PSS Availability. Licensee may use Learning and Services Credits for PSS (annually) for any product covered under Esri's standard maintenance subscription, provided that Licensee is current on maintenance for applicable Esri Software. Esri shall provide PSS for the Term of the EEAP Agreement as further described at http://support.esri.com/en/support/premium. 9.3 Premium Support Description. PSS shall provide a. A designated TAM; b. The ability for LAC to submit Premium Support Reports or escalate standard technical support incidents to Premium Support Reports via telephone or the Esri My Support Portal twenty-four (24) hours per day, seven (7) days per week, three hundred sixty-five (365) days per year; c. Priority Incident Management; and d. Additional enhanced support and services, as described at http://support.esri.com/en/support/l)reiTium. 9.4 PSS RESTRICTIONS AND EXCLUSIONS 9.4.1 Excluded Software. PSS is not available for third -party software. Esri is not responsible for errors attributable to third - party software used in conjunction with or built on Software. 9.4.2 English Language. All communications will be conducted in the English language except by agreement of both E 125M Page 27 of 34 08106/2015 parties. 9.4.3 Acknowledgment. Licensee acknowledges and agrees that the report of an error or defect of any Software is not a guarantee that it can or will be corrected. At Esri's sole discretion, Software is corrected on a priority basis and is subject to release schedules determined by Esri. 9.4.4 Exceptions to PSS. The following are not covered by PSS: a. Any problem resulting from Licensee's misuse, improper use, unauthorized modification, or damage of the Software or Licensee's combining or merging the Software with any hardware or software not supplied or identified as compatible by Esri; b. Any problem resulting from third -party hardware or software; c. Errors in any version of the Software other than the officially supported version of Software; and d. Any support or implementation services, on-site or otherwise, including, but not Iimited to, those provided by Esri Professional Services or any third party. ARTICLE 10—TRAINING TERMS AND CONDITIONS 10.1 Application. Should Licensee choose to use Learning and Services Credits for training or coaching services, the terms of this Article 10 shall also apply. 10.2 Training Descriptions. Esri offers instructor -led training and client coaching services in the use of Esri's Software as described below: a. Instructor -led training is offered online in a cloud -based environment, at a Licensee site, or at an Esri Learning Center. Course information, location, dates, number of maximum participants, and registration requirements can be found in the Esri Training catalog located at http://trainintr.esri.com. Courses are conducted in close conformance with the course description outlined in the Esri Training catalog and are subject to change due to limitations or constraints including, but not limited to, technical capabilities and Licensee's needs. b. Client coaching services are available for Licensee to enhance the learning experience by providing extra time to review and practice course concepts with an instructor's on-site guidance. 10.3 Esri's Responsibilities. Esri will a. Provide the training in a manner consistent with the technical and professional standards of the industry. b. Provide an instructor qualified to conduct the course(s). c. Provide all necessary training materials for Student(s). d. Confirm class approximately ten (10) business days prior to the scheduled start date. For Licensee site and private classes, confirmation is dependent on receipt of the completed Licensee site training request form and intended method of payment. 10.4 LICENSEE'S OBLIGATIONS; LIMITATIONS 10.4.1 Licensee will a. Ensure that all Students have received confirmation from Esri to participate in an Esri training event. Unregistered student(s) will not be permitted to view or participate in an Online Classroom training event. Esri reserves the right to disconnect any Student who permits access to unregistered student(s). b. Confirm that all Students meet the minimum prerequisites for the applicable training event set forth on Esri's Training website. c. Submit registrations with a confirmed payment commitment at least seven (7) business days prior to the scheduled start date. Registrations submitted without payment comrnitment will not be guaranteed a reservation and will be added to a wait list pending payment confirmation. All wait list reservations are subject to availability. d. Submit to the Esri Training Event Assistant a list of the names and email addresses of Students that are to attend a Licensee site or private training event at least three (3) business days prior to the scheduled start date. Subject to compliance with Section 12.12—Export Control Regulations, any Student that is a resident of a US embargoed country or found on any of the various US Government Lists of Parties of Concern or Specially Designated Nationals lists will not be permitted to attend the training event. e. Be responsible for all Student travel arrangements. Esri is not responsible for losses from nonrefundable travel E125M Page 28 of 34 08/0612015 arrangements due to the denial of a Student's participation based on US government export regulation requirements, course scheduling changes, or cancellations. f. Complete and submit an Esri Licensee site training request form, if applicable, and ensure that the class environment adheres to the requirements for Esri Training as found online at htg2://training.esri.com/gateway/index.cfin?fa =classroom. requirements. g. Ensure that Student use of Training Materials provided by Esri complies with the terms of this Agreement. h. Assume full responsibility for Student attending training course(s) under this Agreement. Licensee agrees to indemnify Esri, its officers, directors, and employees for any and all claims, Iiabilities, and expenses (including reasonable legal fees) arising out of or based on any uncured material breach by Student of the terms and conditions of flus Agreement. i. Ensure that Student does not use audio and/or video recording equipment within the classroom without prior written approval from Esri. 10. 4.2 The Esri Mobile Lab option is available for domestic US Licensee site training events if Licensee does not have the required hardware to host a scheduled class. If the Esri Mobile Lab is used, Licensee will a. Immediately report any damage to the Esri Mobile Lab equipment to the Training Event Assistant upon receipt of the equipment. b. Keep the Esri Mobile Lab equipment in a secure, locked area between training event sessions. c. Ensure that only Students use the Esri Mobile Lab equipment. d. Be responsible for loss of, damage to, and/or theft of the Esri Mobile Lab equipment while in Licensee's possession. e. Warrant that it maintains sufficient insurance coverage obligations created by this Agreement and required by law. f. Allow the Esri instructor to check all Esri Mobile Lab equipment following the completion of training. Any damage to the Esri Mobile Lab equipment due to Student use, excluding normal wear and tear, will be brought to the attention of Licensee by written notice. Licensee hereby agrees to be financially responsible for any repair or replacement of equipment resulting from such damage. g. Make the Esri Mobile Lab equipment available for freight pickup upon the conclusion of the training event. 10.5 STUDENT REGISTRATION AND TRAINING EVENT CHANGE POLICY 10.5.1 Individual Student Seats. Licensee will provide written notice to Esri's Customer Service department at serviceCc esri.com of any Student transfer, cancellation, or substitution requests at least three (3) business days before the scheduled start date, subject to the following conditions: a. Multiple requests and any requests that occur without the three (3) business days' advance notice are subject to a fee, as determined by Esri. b. Cancellation of Student registrations that occur without the three (3) business days' advance notice is subject to the full training event fee. c. Substitute Students must be from the same organization as the Student being replaced. 10. 5.2 Licensee Site/Private Class/Client Coaching Services (Training Event). Licensee will provide written notice to Esri's Customer Service department at service(a-,;esri.com of any training event reschedule, cancellation, or Student substitution requirements at least three (3) business days before the scheduled start date. a. Training event reschedules and cancellations that occur without the three (3) business days' advance notice are subject to the full training event fee. Licensee will be responsible for all of Esri's reasonable travel expenses and shipping costs (including Esri Mobile Lab), for all rescheduled or canceled training events. b, Student substitutions that occur without the three (3) business days' advance notice are subject to a fee. Substitute Students must be from the same organization as the student being replaced. 10. 5.3 If cancellation of a training event is necessary due to Force Majeure as described in Article 12.5 below, the affected party is released in full from the three (3) -business -day notification requirement. The affected party will either reschedule or cancel the training without that affected party incurring any liability. 10.5.4 If Esri is unable to conduct the training on the scheduled date, Esri will notify Licensee at least three (3) business days before the scheduled start date. 10.6 Unless specifically authorized in writing by Esri, Licensee is not authorized to resell scat(s) to an Esri training event. 1125M Page 29 of 34 08/06/2015 10.7 Indemnification. Esri will indemnify, defend, save and hold harmless Licensee and each of its directors and officers (collectively, the "Indemnified Parties") from and against any and all damages, losses, liabilities, claims, judgments, and settlements, including all reasonable costs, expenses, and attomeys' fees, arising out of any action or claim for bodily injury, death, or property damage brought against any of the Indemnified Parties to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors, officers, employees, or agents while engaged in or as a result of the training or coaching services provided by Esri pursuant to this Agreement while on Licensee's site. ARTICLE 11—MANAGED SERVICES TERMS AND CONDITIONS 11.1 Documentation. The Activity Description must define the following: a. The Hosting term—This is the duration in which the Managed Services Environment is available to Licensee via HTTP or HTTPS access through the Internet. The Hosting term does not begin until setup and deployment of the data and application are complete. b. Targeted system availability—"System availability" means that Licensee and associated End Users are able to have external HTTP or HT -ITS access to the application and associated data content through the Internet. Examples of supported Ievels of system availability are ninety-five percent (95%), ninety-nine percent (99%), and ninety-nine point nine percent (99.9%). Not all Managed Services offerings include a targeted system availability. c. Number of anticipated requests—A request is made by an End User through a client (e.g., desktop computer, web application, mobile device) and sent to server(s) that is set up in the Managed Services Environment by Esri and performs computational tasks on behalf of End User. An example of a common request used in a GIS is a map request. A map request is made every time a user pans, zooms, or queries a map service. d. Amount of data storage—" Data storage" refers to the components required to retain digital data, which is to be used and consumed in Licensee GIS applications and/or Offline Services, and e. The quote for the applicable price in terms of Learning and Services Credits. The Data storage location may be defined in the Activity Description. 11.2 Requirements Planning. It is Licensee's responsibility to plan for and address with Esri changes to Licensee's requirements, such as the need for additional capacity, the update of an application or dataset, or increased level of system availability. 11.3 Licensee Content Licensing and Deployment Confirmation. Licensee is responsible for maintaining the appropriate licensing to the Licensee Content. Provision of Managed Services will be subject to Licensee's compliance of all relevant Esri and third -party licensing agreement terms, conditions, and arrangements. Licensee will confirm access to the Managed Services Environment within five (5) days of receiving notification from Esri that the Managed Services Environment and Licensee Content are accessible. 11.4 Risk of Loss. Risk of loss for all Licensee Content shall at all times remain with Licensee, and it is Licensee's sole responsibility to maintain regular backups of Licensee Content. Risk of loss for the Managed Services Environment shall at all times remain with Esri. 11.5 Protected Information. Prior to providing any Licensee Content under this EEAP Agreement, Licensee shall notify Esri if Licensee Content includes Protected. Information. 11.6 Public Software. Licensee may not upload, use, process, modify, or combine any Open -Source Materials in a manner that requires Esri to (i) disclose or distribute in source code form; (ii) make available free of charge; or (iii) permit others to modify, without charge, any component of the Managed Services. "Open -Source Materials" means any software, documentation, or other material that contains or is derived (in whole or in part) from any software, documentation, or other material distributed as free or open source software or under other similar licensing or distribution models. E 125 M Page 30 of 34 08/06/2015 11.7 Monitoring. Licensee will provide information and/or other materials related to its Licensee Content as reasonably requested by Esri or its Hosting partner to verify Esri's and/or Licensee's compliance with this EEAP Agreement. Esri or its Hosting partner, as applicable, may browse, index, or otherwise monitor the external interfaces of any Licensee Content solely for the purpose of verifying compliance with this EEAP Agreement, 11.8 Prohibited Use. Licensee may not access or use Managed Services to do any of the following, which hereafter will collectively be referred to as "Prohibited Use": a, Spam, spoof, phish, or transmit junk email or offensive or defamatory material; b. Stalk or make threats of physical harm; c. Store or transmit any software viruses; worms; time bombs; Trojan horses; or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; d. Violate any law; e. Infringe or misappropriate the rights of any third party, f. Process, store, or transmit any data, information, or technology that is controlled for export under the International Traffic in Arms (ITAR) regulations, is unclassified controlled technical information (UCTI) under DFARS 204.73, or is protected health information (PHI) under HIPAA; or g. Otherwise violate a material term of this EEAP Agreement. 11.9 Takedowns and Service Suspension. If Esri believes that any Licensee's use of the Managed Services constitutes a Prohibited Use or if Licensee Content violates the restrictions listed in Section 11.8, Esri will notify Licensee, request Licensee to stop the Prohibited Use, and may request that such Licensee Content be removed from Managed Services Environment or access to it be disabled. Esri may remove or disable access to any such Licensee Content without prior notice as permitted under applicable law or as required to comply with any judicial, regulatory, or other governmental order. Esri may also suspend Licensee's access to Managed Services Environment at any time a. For scheduled downtime to conduct maintenance or make modifications to Managed Service(s); or b. In the event of a threat or attack on Managed Service(s) (including a denial -of -service attack) or other event that may create a risk to the applicable part of Managed Services. If feasible under these circumstances, Licensee will be notified of any service suspension beforehand and allowed reasonable opportunity to take remedial action. In the event that Esri removes Licensee Content or suspends access to Managed Services Environment without prior notice, Esri will provide prompt written notice to Licensee unless prohibited by law. ARTICLE 12—GENERAL PROVISIONS 12.1 Relationship of the Parties. The parties hereto agree that each is an independent contractor with respect to this EEAP Agreement; that this EEAP Agreement does not constitute an agency, partnership, franchise, or joint venture; and that nothing herein contained is intended to constitute, nor shall it be construed to constitute, the parties as agents, partners, franchisor/franchisee, or co -venturers of each other. Except as expressly provided in this EEAP Agreement, neither party shall have any power or authority to act in the name or on behalf of the other party except with the prior, express written consent of the other party. 12.2 Intellectual Property Rights Attribution. Licensee shall retain any copyright, patent, or trademark notices on all items licensed under this EEAP Agreement and shall take other necessary steps to protect Esri's or its licensor's intellectual property rights. Licensee shall not copy or distribute, or permit a third party to copy or distribute, any of Esri's Training Materials. 12.3 No Implied Waivers. The failure of either party to enforce any provision of this EEAP Agreement steal I not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 12.4 Severability. If any provision of this EEAP Agreement is determined to be invalid, illegal, or unenforceable, the parties agree the remaining provisions of this EEAP Agreement shall remain in full force if both the economic and legal substance of the transactions contemplated by this EEAP Agreement are not affected in any manner that is materially adverse to either party by severing the provision determined to be invalid, illegal, or unenforceable. E 125M Page 31 of 34 0$/06/2015 12.5 Force Majeure. If the performance of this EEAP Agreement, or any obligation except the making of payments, is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, terrorist act, cyber -attack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. 12.6 Applicable Laws. This EEAP Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to conflict of laws. 12.7 No solicitation of Contractor Personnel. Licensee shall not solicit for hire any Esri employee who is associated with efforts called for under this Agreement during the Term of this EEAP Agreement and for a period of one (1) year thereafter. 12.8 Taxes. Services provided are quoted inclusive of all state, local, value-added, or other taxes, customs, or duties, or other charges (all levied or assessed or provided by law taxes payable by Esri). In the event, such taxes and/or charges become applicable to Esri's services, applications, or data, Esri shall pay any such applicable tax upon receipt of written notice that such taxes are due. 12.9 UCC Inapplicability. Any services provided under this EEAP Agreement will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. 12.10 Assignment and Delegation. Esri may, in whole or in part, assign any of its rights or delegate any performance under this EEAP Agreement, provided that Esri shall remain responsible for the performance it delegates. This EEAP Agreement binds and benefits successors or assigns permitted under this Section 12.10. 12.11 Insurance. Licensee is self-insured in accordance and subject to the limitations and provisions as set forth in Section 768.28 of the Florida Statutes. SSRI shall provide Licensee with a certificate of insurance in accordance with Article 18, Insurance found in the Enterprise agreement. Each party shall, throughout the term of this EEAP Agreement, obtain and maintain at its own cost and expense from a qualified insurance company an appropriate commercial general liability (CGL) insurance policy, including coverage for products liability, or for Licensee, a funded self-insurance program providine equivalent loss protection subject to the limitations and provisions as set forth in Section 768.28 of the Florida Statutes as reflected in the attached self-insurance statement is accepted. . 12.12 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release Software, Data, Online Services, or Documentation, in whole or in part, to a. Any US embargoed country (or to a national or resident of any US embargoed country); b. Any person on the US Treasury Department's list of Specially Designated Nationals; c. Any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List; or d. Any person or entity where such export or reexport violates any US export control laws or regulations including, but not limited to, the terms of any export license or license exemption and any amendments and supplemental additions to US export laws as they may occur from time to time. 12.13 Headers. Headers are for convenience only and are not to be used in the interpretation of this EEAP Agreement. 12.14 Entire Agreement. This EEAP Agreement constitutes the sole and entire agreement of the parties and supersedes any previous agreements, understandings, and arrangements between the parties relating to the Esri Enterprise Advantage Program. Other than information regarding the services or Software being ordered and shipping instructions, if any, additional or different terms contained on Licensee's purchase order are objected to and shall not apply even if accepted or acknowledged by Esri unless specifically included in a modification to this EEAP Agreement. Any modifications or amendments to this EEAP Agreement must be in writing and signed by an authorized representative of each party. E 125M Page 32 of 34 08106/2015 CITY OF MIAMI (City), a Florida municipal corporation Bv: Authorized Signature Printed Name: Daniel; J. Alfonso Title: City Manager Date: Attest: Todd Hannon, City Clerk ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC.1 (Esri) By: Authorized Signature Printed Name: Title: Authorized Officer / Representative Date: 1 Please furnish a corporate resolution indicating signatory is authorized Approved as to Insurance: Ann -Marie Sharpe, Director, Risk Management Dept. Approved as to legal form: Victoria Mendez, City Attorney E125M Page 33 of 34 08/06/2015 All Licensee contact regarding the Esri Enterprise Advantage Program shall be through the point of contact identified below. AUTHORIZED EEAP CONTACT INFORMATION (TO BE COMPLETED BY LICENSEE) Contact: Kevin Burns, CIO Telephone: 305-416-1911 Address: 444 5W 2W Avenue, 5'1' floor Fax: 305-400-5270 City, State, ZIP: Miami, FL 33I30 Email: kburns@miamigov.com E 125M Page 34 of 34 08/06/2015 CITY OF MIAMI 7 CERTIFICATE OF SELF INSURANCE COVERAGE INSURED: CITY OF MIAMI, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, ITS EMPLOYEES, AGENTS AND OFFICIALS March 20, 201 SELF INSURED EVIDENCE OF COVERAGE This Certificate is issued as a matter of information only and confers no rights upon the Certificate Holder. This Certificate does not amend, extend, nor alter the coveraees or defense afforded by the self-insurance plans below. Type of Coverage Effective Expiration Limits of Usability - in "Thousands ` Date Date GENERAL LIABILITY Bodily Injury, (X) Comprehensive Property Damage (X) Premises/Operations Personal Injury (X) Products/Completed Operations Until Combined (X) Contractual 1011190 canceled $200 per Claimant $300 (X) Independent Contractors or per Occurrence (X) Broad Form Property Damage revoked (X) Personal Injury Self -Insured in accordance with S.768.28 F.S. (X) Errors & Omissions AUTOMOBILE LIABILITY Bodily Injury (X) Any Auto Property Damage () All Owned Autos 10/1/90 Until Combined (Private Passenger Autos) canceled $200 per Claimant $300 O All Owned Autos or per Occurrence (Other than Private Passenger) revoked (X) Hired Autos Self -Insured in accordance with S.768.28 F.S. (X) Non Owned Autos WORKERS COMPENSATION AND 10/1190 Until WC Statutory Limits - Florida EMPLOYERS LIABILITY canceled or revoked Self -Insured in accordance with S.440 F.S. BLANKET DISHONESTY BOND 10/1190 Until $25 Per Occurrence canceled or (Including faithful performance, revoked Self -Insured in accordance with S 768.28 F.S. money & securities & depositors forgery) DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL/ITEMS: Re: Software License Agreement / // CANCELLATION: Should any of the above described coverages be cancelled before the expiration thereo , the iss ' g tty will endeavor to 1 0 days written notice to the Certificate Halder named, but failure to mail such notice shall impose no obligation, or, liabili of y kind upon the its ag nts, or representatives. SRI Environmental Systems Research Institute 80 New York Street Redlands, California 92373-8100 Frank Gomez Property & Casua ty Manager/Ann Marie Sharpe, Director of Risk Management Risk Management Department, 444 SW 211 Ave, Miami, FL 33130 (3 5)(4 16-1740 ' DR -14 Consumer's Certificate of Exemption R. 04/11 DE I'ARTM€^+T Issued Pursuant to Chapter 212, Florida Statutes Of REVENUE 85-80127401250-1 10/31/2012 10/3112017 MUNICIPALGOVERNMENT Certificate Number Effective Date Expiration ©ate Exemption Category This certifies that CITY OF MIAMI 444 SW 2ND AVE MIAMI Fl_ 33130-1910 is exempt from the payment of Florida sales and use tax on real property rented, transient rental property rented, tangible personal property purchased or rented, or services purchased. i Important Information for Exempt Organizations DEPARTMENT OF REVENUE DR -14 R. 04/11 1. You must provide all vendors and suppliers with an exemption certificate before making tax-exempt purchases. See Rule 12A-1.038, Florida Administrative Code (F.A.C.). 2. Your Consumer's Certificate of Exemption is to be used solely by your organization for your organization's customary nonprofit activities. 3. Purchases made by an individual on behalf of the organization are taxable, even if the individual will be reimbursed by the organization. 4. This exemption applies oniy to purchases your organization makes. The sale or lease to others of tangible personal property, sleeping accommodations, or other real property is taxable. Your organization must register, and collect and remit sales and use tax on such taxable transactions. Note: Churches are exempt from this requirement except when they are the lessor of real property (Rule 12A-1.070, F.A.C.). 5. It is a criminal offense to fraudulently present this certificate to evade the payment of sales tax. Under no circumstances should this certificate be used for the personal benefit of any individual. Violators will be liable for payment of the sales tax plus a penalty of 200% of the tax, and may be subject to conviction of a third-degree felony. Any violation will require the revocation of this certificate. 6. If you have questions regarding your exemption certificate, please contact the Exemption Unit of Account Management at 800-352-3671, From the available options, select "Registration of Taxes," then "Registration Information," and finally "Exemption Certificates and Nonprofit Entities." The mailing address is PO Box 6480, Tallahassee, FL 32314-6480.