HomeMy WebLinkAboutresolution.council.148-19 RESOLUTION #148
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ENVIRONMENTAL RESEARCH INSTITUTE, INC. (ESRI)
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for a
renewal of an Esri Enterprise Advantage Program Agreement, between the City of
Aspen and Environmental Research Institute Inc. (Esri), a true and accurate copy
of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract for
a renewal of an Esri Enterprise Advantage Program Agreement, between the City
of Aspen and Environmental Research Institute Inc. (Esri), a copy of which is
annexed hereto and incorporated herein and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 17th day of December 2019.
-7M -
Torre, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held, December 17th, 2019.
'n <
Nicole He ing, City Clerk
THE Quotation # Q-397073
* esri• I SCI
W E
"'"ERE-RE-
Date: October 14,2019
Environmental Systems Research Institute, Inc. Customer#338072 Contract#
380 New York St
Redlands, CA 92373-8100 City of Aspen
Phone: (909)793-2853 Fax: (909)307-3049 Engineering Dept
DUNS Number: 06-313-4175 CAGE Code: OAMS3 130 S Galena St
Aspen, CO 81611-1902
To expedite your order,please attach a copy of ATTENTION: Bridgette Kelly
this quotation to your purchase order. PHONE: 970-920-5448
Quote is valid from: 10/14/2019 To: 1/12/2020 EMAIL: bridgette.kelly@cityofaspen.com
Material Qty Term Unit Price Total
161877 1 Year 1 $49,000.00 $49,000.00
Small Government and Local Utility EA Esri Enterprise Advantage Program(EEAP): 50 Technical Advisor Hours/50 Learning
and Services Credits-Annual subscription designed to provide enterprise-wide visioning and geospatial enablement through
technical advisory,an annual planning meeting,a collaboratively developed technical work plan,and access to exclusive
quarterly technology webcasts.The program also provides access to a combination of consulting, premium support,and training
services.This configuration includes a one day annual planning session; up to 50 Technical Advisor hours; Quarterly Technology
Webcasts and 50 Learning and Services Credits.The Esri Advantage Program terms and conditions shall apply. If not attached,
or already incorporated into an existing and current Esri master contract,these terms and conditions can be viewed on the web
at https://www.esri.com/en-us/legal/terms/services.
161877 1 Year 2 $49,000.00 $49,000.00
Small Government and Local Utility EA Esri Enterprise Advantage Program (EEAP): 50 Technical Advisor Hours/50 Learning
and Services Credits-Annual subscription designed to provide enterprise-wide visioning and geospatial enablement through
technical advisory,an annual planning meeting, a collaboratively developed technical work plan, and access to exclusive
quarterly technology webcasts.The program also provides access to a combination of consulting, premium support, and training
services.This configuration includes a one day annual planning session; up to 50 Technical Advisor hours; Quarterly Technology
Webcasts and 50 Learning and Services Credits.The Esri Advantage Program terms and conditions shall apply. If not attached,
or already incorporated into an existing and current Esri master contract,these terms and conditions can be viewed on the web
at https://www.esri.com/en-us/legal/terms/services.
161877 1 Year 3 $49,000.00 $49,000.00
Small Government and Local Utility EA Esri Enterprise Advantage Program(EEAP): 50 Technical Advisor Hours/50 Learning
and Services Credits-Annual subscription designed to provide enterprise-wide visioning and geospatial enablement through
technical advisory, an annual planning meeting,a collaboratively developed technical work plan,and access to exclusive
quarterly technology webcasts.The program also provides access to a combination of consulting, premium support, and training
services.This configuration includes a one day annual planning session; up to 50 Technical Advisor hours; Quarterly Technology
Webcasts and 50 Learning and Services Credits.The Esri Advantage Program terms and conditions shall apply. If not attached,
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management,procurement,or invoice program.
For questions contact: Email: Phone:
Lisa Ward (ward@esri.com (909)793-2853 x8231
The items on this quotation are subject to and governed by the terms of this quotation,the most current product specific scope of use document
found at https//assets esri.com/conte...n..t/dam/esrisites/me..dia/le.gjgl/product-specific-terms-of-use/e3OO.Dd...f,and your applicable signed agreement
with Esri.If no such agreement covers any item quoted,then Esri's standard terms and conditions found ath..ttps_//go.esri.com/MAPS apply to your
purchase of that item.Federal government entities and government prime contractors authorized under FAR 51.1 may purchase under the terms of
Esri's GSA Federal Supply Schedule.Supplemental terms and conditions found at https://www.esri.com/en-us/legal/terms/state-supplemental apply
to some state and local government purchases.All terms of this quotation will be incorporated into and become part of any additional agreement
regarding Esri's offerings.Acceptance of this quotation is limited to the terms of this quotation.Esri objects to and expressly rejects any different
or additional terms contained in any purchase order,offer,or confirmation sent to or to be sent by buyer. Unless prohibited by law,the quotation
information is confidential and may not be copied or released other than for the express purpose of system selection and purchase/license.The
information may not be given to outside parties or used for any other purpose without consent from Esri.Delivery is FOB Origin.
WARDL This offer is limited to the terms and conditions incorporated and attached herein.
THE Quotation # Q-397073
eSri- I SCI
OFENCE
Date: October 14,2019
Environmental Systems Research Institute, Inc. Customer#338072 Contract#
380 New York St
Redlands,CA 92373-8100 City of Aspen
Phone: (909)793-2853 Fax: (909)307-3049 Engineering Dept
DUNS Number: 06-313-4175 CAGE Code: OAMS3 130 S Galena St
Aspen, CO 81611-1902
To expedite your order,please attach a copy of ATTENTION: Bridgette Kelly
this quotation to your purchase order. PHONE: 970-920-5448
Quote is valid from: 1011412019 To: 111212020 EMAIL: bridgette.kelly@cityofaspen.com
Material Qty Term Unit Price Total
or already incorporated into an existing and current Esri master contract,these terms and conditions can be viewed on the web
at https://www.esri.com/en-us/legal/terms/services.
Subtotal: $147,000.00
Sales Tax: $0.00
Estimated Shipping and Handling (2 Day Delivery): $0.00
Contract Price Adjust: $0.00
Total: $147,000.00
Notes:
1)The year 1 term for the City of Aspen EEAP will start in January, 2020.
2)The EEAP annual payment will be$49,000.
3)The pricing for years 2&3 included on the quote are locked in at the current annual fee based on a 3 year commitment to the EEAP
Program. Please sign quote to reflect acceptance.
4)Please reference Contract No.2615EAP5102 on your order.
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management,procurement,or invoice program.
For questions contact: Email: Phone:
Lisa Ward (ward@esri.com (909)793-2853 x8231
The items on this quotation are subject to and governed by the terms of this quotation,the most current product specific scope of use document
found at https://assets.esri._com/content/dam/esrisites/m.e..dia/leaal/product-specific-terms-of-use/e300.Ddf,and your applicable signed agreement
with Esri.If no such agreement covers any item quoted,then Esri's standard terms and conditions found at https//go._esri.com/MAPS apply to your
purchase of that item.Federal government entities and government prime contractors authorized under FAR 51.1 may purchase under the terms of
Esri's GSA Federal Supply Schedule.Supplemental terms and conditions found at https_//www.esri.com/en-us/legal/terms/state-supplemental apply
to some state and local government purchases.All terms of this quotation will be incorporated into and become part of any additional agreement
regarding Esri's offerings.Acceptance of this quotation is limited to the terms of this quotation.Esri objects to and expressly rejects any different
or additional terms contained in any purchase order,offer,or confirmation sent to or to be sent by buyer.Unless prohibited by law,the quotation
information is confidential and may not be copied or released other than for the express purpose of system selection and purchase/license.The
information may not be given to outside parties or used for any other purpose without consent from Esri.Delivery is FOB Origin.
WARDL This offer is limited to the terms and conditions incorporated and attached herein.
THE Quotation # Q-397073
SCI
esri• I WHERE-
E- Date: October 14,2019
Environmental Systems Research Institute, Inc. Customer#338072 Contract#
380 New York St
Redlands, CA 92373-8100 City of Aspen
Phone: (909)793-2853 Fax: (909)307-3049 Engineering Dept
DUNS Number: 06-313-4175 CAGE Code: OAMS3 130 S Galena St
Aspen, CO 81611-1902
To expedite your order,please attach a copy of ATTENTION: Bridgette Kelly
this quotation to your purchase order. PHONE: 970-920-5448
Quote is valid from: 10/1412019 To: 1/12/2020 EMAIL: bridgette.kelly@cityofaspen.com
If you have made ANY alterations to the line items included in this quote and have chosen to sign the quote to indicate your acceptance,you must fax
Esri the signed quote in its entirety in order for the quote to be accepted.You will be contacted by your Customer Service Representative if additional
information is required to complete your request.
If your organization is a US Federal,state,or local government agency;an educational facility;or a company that will not pay an invoice without having
issued a formal purchase order,a signed quotation will not be accepted unless it is accompanied by your purchase order.
In order to expedite processing,please reference the quotation number and any/all applicable Esri contract number(s)(e.g.MPA,ELA,SmartBuy,GSA,
BPA)on your ordering document.
BY SIGNING BELOW,YOU CONFIRM THAT YOU ARE AUTHORIZED TO OBLIGATE FUNDS FOR YOUR ORGANIZATION,AND YOU ARE AUTHORIZING
ESRI TO ISSUE AN INVOICE FOR THE ITEMS INCLUDED IN THE ABOVE QUOTE IN THE AMOUNT OF$51,X&e-PLUS SALES TAXES IF
APPLICABLE.DO NOT USE THIS FORM IF YOUR ORGANIZATION WILL NOT HONOR AND PAY ESRI-S INT01HRITHOUT ADDITIONAL AUTHORIZING
PAPERWORK.
Please check one of the following:
_I agree to pay any applicable sales tax.
I am tax exempt,please contact me if exempt information is not currently on file with Esri.
Signatureof Authorized Representative Date
Name(Ple-ase Print)
U, h
Title
The quotation information is proprietary and may not be copied or released other than for the express purpose of system selection and purchase/license.This information may not be given to outside
parties or used for any other purpose without consent from Environmental Systems Research Institute,Inc.(Esri).
Any estimated sales and/or use tax reflected on this quote has been calculated as of the date of this quotation and is merely provided as a convenience for your organization's budgetary purposes.Esri
reserves the right to adjust and collect sales and/or use tax at the actual date of invoicing.If your organization is tax exempt or pays state tax directly,then prior to invoicing,your organization must provide
Esri with a copy of a current tax exemption certificate issued by your state's taxing authority for the given jurisdiction.
Esri may charge a fee to cover expenses related to any customer requirement to use a proprietary vendor management,procurement,or invoice program.
For questions contact: Email: Phone:
Lisa Ward (ward@esri.com (909)793-2853 x8231
The items on this quotation are subject to and governed by the terms of this quotation,the most current product specific scope of use document
found at https;l/assets...esri.com/content/dam./e.s.risites/media/legal/product-specific-terms-of-use/e300,pdf,and your applicable signed agreement
with Esri.If no such agreement covers any item quoted,then Esri's standard terms and conditions found at https://cio.esri com/MAPS apply to your
purchase of that item.Federal government entities and government prime contractors authorized under FAR 51.1 may purchase under the terms of
Esri's GSA Federal Supply Schedule.Supplemental terms and conditions found at httDs://www.esri.com/en-us/lecial/terms/state=supplem.e..nta.1 apply
to some state and local government purchases.All terms of this quotation will be incorporated into and become part of any additional agreement
regarding Esri's offerings.Acceptance of this quotation is limited to the terms of this quotation.Esri objects to and expressly rejects any different
or additional terms contained in any purchase order,offer,or confirmation sent to or to be sent by buyer.Unless prohibited by law,the quotation
information is confidential and may not be copied or released other than for the express purpose of system selection and purchase/license.The
information may not be given to outside parties or used for any other purpose without consent from Esri.Delivery is FOB Origin.
WARDL This offer is limited to the terms and conditions incorporated and attached herein.
•
(IPesr
I• ESRi ENTERPRISEAGREEMENT(E125) PROGRAM
Esri,380 New York St.,Redlands,CA 92373-8100 USA•TEL 909-793-2853•FAX 909-793-5953
EEAP Agreement No.2015EAP5102
This Esri Enterprise Advantage Program Agreement("EEAP Agreement")is entered into by and between Environmental
Systems Research Institute,Inc.("Esri"),a California corporation, located at 380 New York Street,Redlands, California
92373-8100,and City of Aspen,Colorado ("Licensee"), located at 130 S. Galena Street,Aspen,Colorado 81611.
Esri offers the Esri Enterprise Advantage Program to Licensees current on Esri software maintenance that are 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 Enterprise Advantage Program for the authorized
Licensee location as described herein.The 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 e-mail 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
a. Found at http://www.esi-i.com/legal/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
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.
EI25(M),2015EAP5102 Page I of 14 02/13/2015
08/12/2015
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 e-mail 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[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://sui)port.esri.com/en/support/premium.
1.15 "Renewal Period" means any one(1)-year extension of this EEAP Agreement.
1.16"Secure Formats" means object code,executable code,or similar formats.
1.17"Student"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 are 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
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/eeap/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 Account Planning Session. A one-day annual account planning and review meeting.
EI25(M),2015EAP5102 Page 2 of 14 02/13/2015
08/12/2015
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.csri.com/services/ceap/components#learning.
Esri will provide the Authorized EEAP Contact with a monthly report outlining usage of Enterprise Advantage
Program Learning and Services Credits to date.
e. Quarterly Technology Webcast. Esri will provide an e-mail 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/legal,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 e-mail
for confirmation and authorization to use the credits.This confirmation e-mail 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 e-mail 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.
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 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.LI Software. The terms of the Esri License Agreement shall be applicable to all Licensee course participants and for all of
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.
3.1.2 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
E125(M),2015EAP5102 Page 3 of 14 02/13/2015
08/12/2015
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. Student 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
3.2.7 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.
3.2.2 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 Invention(s)made or conceived jointly by
Inventors from both parties. With respect to such Inventions of Licensee relating to the Esri Software,Licensee hereby grants
and agrees to grant to Esri an irrevocable,royalty-free,nonexclusive,worldwide right and license,with right to sublicense,
use, make,sell,offer to sell,or import such Inventions for any purpose,whether or not patented in the country of such past or
intended use. 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
3.5.1 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 the Licensee or its
licensor(s)shall mean any and all now known or hereafter known tangible and intangible
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. All 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,
contract, license,or otherwise; and
EI25(M),2015EAP5102 Page 4 of 14 02/13/2015
08/12/2015
f. All 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 purposes 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 term 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://www.esri.coin/soltware/arc isg /areszisserver/system-requirements/managed-services. 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;
b. 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 nonconformities,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
OTHER WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED,INCLUDING,BUT NOT LIMITED TO,
EI25(M),2015EAP5102 Page 5 of 14 02/13/2015
08/12/2015
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 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
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 INDIRECT, SPECIAL,
INCIDENTAL,OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS EEAP AGREEMENT
OR USE OF THE WORK PRODUCT,HOWEVER CAUSED 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.ESRPS TOTAL CUMULATIVE LIABILITY HEREUNDER FOR DIRECT
DAMAGES SHALL IN NO EVENT EXCEED 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 fonn 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 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 Licensee may elect to use Learning and Services Credits for actual travel expenses of Esri employees plus Esri's
discounted general and administrative(G&A)burden or to be invoiced at the actual cost for travel expenses plus Esri's
discounted G&A burden.Meals will be charged on a per diem basis.
EI25(M),2015EAP5102 Page 6 of 14 02/13/2015
08/12/2015
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 delivery of
thirty(30)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 tenninates 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 Service 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 cavy over for up to two(2)years from their
purchase date,or termination of the EEAP Agreement,whichever comes first;
c. Unless Esri tenninates this EEAP Agreement for Licensee's breach,Licensee retains the right to use any Training
Materials and Work Product.
ARTICLE 8—CONFIDENTIALITY 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.
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 confidential information.
E125(M),2015EAP5102 Page 7 of 14 02/13/2015
08/12/2015
8.3 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(i)as provided in the preceding paragraph,and(ii)subject to the Colorado Open Records Act,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 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(I'll), including,but not limited to, Gramm-Leach-Bliley Act(GLBA)-or HIPAA-type data
or information or critical infrastructure information(CII)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 signed between the parties separate from this EEAP Agreement.
ARTICLE 9—PREMIUM SUPPORT SERVICES TERMS AND CONDITIONS
9.1 Application.Should the 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://suu)ort.esri.com/en/suu)ort/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://supl2ort.esri.com/en/support/premium.
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
parties.
E125(M),2015EAP5102 Page 8 of 14 02/13/2015
08/12/2015
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 on-site support or implementation services,on-site or otherwise,including,but not limited to,those provided
by Esri Professional Services or any third party.
ARTICLE 10—TRAINING TERMS AND CONDITIONS
10.1 Application. Should the 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://training.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 registered participants("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 registered 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 commitment will not be a guaranteed 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 e-mail 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.
E125(M),2015EAP5102 Page 9 of 14 02/13/2015
08/12/2015
e. Be responsible for all Student travel arrangements. Esri is not responsible for losses from nonrefundable travel
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 http://training.csri.com/*a� teway/index.cfii'?fa
=classroom.requirements.
g. Ensure 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, liabilities,and expenses(including
reasonable legal fees)arising out of or based on any uncured material breach by Student of the terms and conditions
of this Agreement.
10.4.2 The Esri Mobile Lab option is available for domestic US Licensee site training events if the Licensee does not have
the required hardware to host a scheduled class. If the Esri Mobile Lab is used,the 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 registered 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 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
serviceL&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 servicea 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 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.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.
E125(M),2015EAP5102 Page 10 of 14 02/13/2015
08/12/2015
10.6 Indemnification.Esri will indemnify 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 attorneys'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 l l—MANAGED SERVICES TERMS AND CONDITIONS
11.1 Documentation.The Activity Description must define the following:
a. The Hosting term—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 HTTPS access to the application and associated data content through the Internet. Examples of
supported levels 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 Online Services,and
e. The quote for the applicable price in terms of Learning and Services Credits.
f. 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 use,and may not authorize End Users to use,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 software,open source software(e.g.,Linux),or other similar licensing or distribution models,including,but not limited
to,software,documentation,or other material licensed or distributed under any of the following license or distribution
models or license or distribution models similar to any of the following:
a. The GNU General Public License(GPL), Lesser/Library GPL(LGPL),or Free Documentation License;
b. The Artistic License(e.g.,Perl);
C. The Mozilla Public License;
d. The Netscape Public License;
e. The Sun Community Source License(SCSL);
f. The Sun Industry Standards License(SISL);
E125(M),2015EAP5102 Page I 1 of 14 02/13/2015
08/12/2015
g. The Berkeley Software Distribution(BSD)License;and
h. The Apache License("Public Software") in connection with the Licensee Content in any manner that requires,
pursuant to the license applicable to such Public Software,that any component of the Managed Services be
1. Disclosed or distributed in source code form,
2. Made available free of charge to recipients,or
3. Modifiable without restriction by recipients.
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
a. Spam,spoof,phish,or transmit junk e-mail 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 the Health Insurance Portability and Accountability Act(HIPAA); or
g. Otherwise violate a material term of this EEAP Agreement("Prohibited Use").
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
material(s).
EI25(M),2015EAP5102 Page 12 of 14 02/13/2015
08/12/2015
12.3 No Implied Waivers.The failure of either party to enforce any provision of this EEAP Agreement shall not be deemed
a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
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.
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 Colorado without reference to conflict of laws principles.
12.7 Nonsolicitation 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.In
the event the foregoing provision is breached,Licensee shall pay Esri liquidated damages for recruiting and training costs
equal to twelve(12)months of the employee's compensation plus any legal expenses associated with the enforcement of this
provision.
12.8 Taxes. Services provided are quoted exclusive of all state,local,value-added,or other taxes,customs,or duties,or other
charges(other than income taxes payable by Esri).In the event such taxes and/or charges become applicable to Esri's
services,applications,or data,Licensee 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.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,naming the other party as an additional named insured. Such policy shall provide protection
against any and all claims,demands,and causes of action arising out of any error,omission,failure to perform,or defect,
alleged or otherwise,of goods and services used in connection therewith or any use thereof. The amount of coverage shall be
in the minimum amount of,one million US dollars(US$1,000,000).
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 Enterprise Advantage Program.
E125(M),2015EAP5102 Page 13 of 14 02/13/2015
08/12/2015
t
Other than information regarding the services or Sollware being ordered and shipping instructions,if any,additional or
different terms contained on Licensee's purchase order are ohjcetcd to and shall not apply even if accepted or acknowledged
by Esri unless specifically included in a modification to this L'.EAP Agreement.Any modifications or amendments to this
EEAP Agreement must be in writing and signed by an authorized representative of each party.
The parties acknowledge that they have read and understand this I"EAP Agreement.have the authority to bind their
respective organizations,and agree to be bound by its terms and conditions.
CITV OF ASPEN,COLORADO ENVIRONMENTAL SYSTEMS
RESEARCI) TITU ,
(License (Esri) /
By: By:
Authorize ignature / Aut iorrred Signal e
Printed Name: Waxe4C Printed Name: William G. Fleming
Title: 1 'Title: Managing Business Attorney
Date: ,�()�// x� Date: SI: 1 7QJ 5
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:Bridgette Kelly.GIS Coordinator Telephone:(970)920-5453
Address: 130 S.Galena Street Fax:(970)544-5378
City,State,ZIP:Aspen,CO 81611 E-mail:bride.ette.kelly(�cityofaspen.com
E125(M),2015EAP5102 11uge 14 of 14 02/13/2015
08/12/2015