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HomeMy WebLinkAboutResolution - 2015-R0399 - Agreement - ESRI - ESRI Software, EA Maintenance - 12/03/2015Resolution No. 2015-RO399 Item No. 5.19 December 3, 2015 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute on behalf of the City of Lubbock an Enterprise Agreement with Environmental Systems Research Institute, Inc. (ESRI) for the licensing and deployment of certain ESRI software, delivery of EA Maintenance and provisions of the ESRI User Conference registrations and any additional services specified in the Enterprise Agreement. The Enterprise Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 3rd day of December , 2015. GLE ? OBERTSON, MAYOR ATTEST: RebeJca Garza, City APPROVED AS TO CONTENT: Mark Y�Wwood,(Assistant L ity Manager And ChiefThformation Officer Resolution No. 2015-RO399 ENTERPRISE AGREEMENT (E512G 06/26/2015) Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 Agreement No. 2015ELA3977 This Enterprise Agreement, including the documents listed below (collectively, "Agreement" or "EA"), is between City of Lubbock, TX ("City"), with its main offices located at 1625 131 Street, Lubbock, TX 79401 and Environmental Systems Research Institute, Inc. ("Esri"), with an effective date as December 17, 2015 ("Effective Date"). 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 3. License Agreement, 2012MLA7699, comprised of the ■ General License Terms and Conditions, E204 ■ Esri Exhibit 1, Scope of Use, E300 4. Esri Enterprise Advantage Program (EEAP) Enterprise Agreement (EA) Addendum (E125 -EA) 2015EAP3977 5. Exhibit A: Insurance 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. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] E512G Page 1 of 13 06 26 2015 This Agreement 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. ACCEPTED AND AGREED: CITY OF LUBBOCK, TX (City) By: GLEN C ERTSON, Mayor DATE: December 3, 2015 REBE CA GARZA, City Secretary ATTEST.I. t APPROVED AS 'O CONTENT: MAR YEAR�ODAssista t City Manager 1 CIO Printed Name: Chris Johnson Title: Manager, Commercial & Government Contracts Date: November 12, 2015 APPROV AS.'10 F{ R JOHN GRACE,; ". t CiAttomey /f i kEMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] r j` E512G Page 2 of 13 06:26 2015 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: ■ "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(s)" means the fee set forth in Appendix B—EA Fee Schedule. ■ "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. ■ "Incident(s)" means a failure of Products to operate according to the Documentation where such failure substantially impacts operational or functional performance. ■ "License Agreement" means the applicable license agreement incorporated by this reference that is (i) found at http://www.esri.com/legalisoftware-license, composed of the General License Terms and Conditions (E204) and Exhibit I—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, its agencies and departments, including Lubbock Metropolitan Planning Organization and Lubbock Power and Light. 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 Incidents 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 1 Support" means the Technical Support provided by the Tier 1 Help Desk as the primary contact to Licensee in the attempted resolution of reported Incidents. ■ "Tier 2 Support" means the Technical Support provided by Esri to the Tier 1 Help Desk when an Incident cannot be resolved through Tier 1 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 licensed 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. E5120 Page 3 of 13 06262015 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. ARTICLE 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. 3.2 Uses Not Permitted a. City shall not transfer, redistribute, or Deploy 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. b. 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. c. 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 US Software Maintenance Program document (found at www.esri.com/�lne) as modified by this Section 4.1. a. Tier 1 Support Provided by City (1) The Tier 1 Help Desk will provide Tier 1 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 Incidents. Tier I Support analysts shall obtain a full description of each reported Incident and the system configuration from Licensee. This may include obtaining any customizations, code samples, or data involved in the Incident. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Incidents. (5) If the Tier 1 Help Desk cannot resolve an Incident, 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. E512G Page 4 of 13 06/26/2015 (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 I 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 Incident submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk individuals and not Licensee. (5) When an Incident is resolved, Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to 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, Delivery, and Deployment i. Esri does not require City to issue purchase orders and will invoice City upon Effective Date of the EA and subsequently on each contract anniversary date during the EA Term. City may submit purchase orders in accordance with its own process requirements. If City issues purchase orders, then City will submit its initial purchase order upon execution of this EA and any subsequent purchase order at least 30 days before the anniversary date. Invoices will be due and payable within thirty (30) days of invoice. ii. Any purchase orders issued by City will reference, incorporate, and be subject to the terms and conditions of this EA. No additional, conflicting, or different terms contained in a purchase order or ordering document will be binding. All orders and deliveries pertaining to this EA will be processed through City's centralized point of contact. iii. The following information will be included 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. 2015ELA3977." iv. 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. V. 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. City acknowledges that Esri has a right to invoice for and City agrees to pay any such sales or use tax associated with receipt of tangible media. vi. 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. E512G Page 5 of 13 06/26/2015 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 Fax: 909-307-3020 E-mail: legalnotices! :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 EAP, 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. 7.3 Reserved 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, at a later date, 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. 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 City (e.g., outside counsel or accountants) who have a need to know to perform their duties or work on behalf of City, 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 (such as an open/public records request), City shall inform Esri of the requested E5120 Page 6 of 13 06 262015 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. 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 liable 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 City shall officially name Esri as its GIS standard and act as a reference for other Esri customers and potential customers as long as the EA remains in effect. 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 publicize the existence of the EA. ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12.1 Esri Partner 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:,`isupport.esri.com. en;contenL,`productlifec,,cles 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 htt�iihelp.arcgis.com'en:'shared. product-life-cycleiProductLifeCycle.pdf, covers the support phases and overall support plans. 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 E512G Page 7 of 13 06/26%2015 follows: (1) Signature Page, (2) E512G Enterprise License Terms and Conditions, (3) E300 Scope 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 and Article 8 of this Enterprise License Terms and Conditions document (E512G) will survive the expiration or termination of this EA. E512G Page 8 of 13 06/26/2015 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-1 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 ArcGIS for Desktop extensions: ArcGIS 3D Analyst, ArcGIS Data Reviewer, ArcGIS Geostatistical Analyst, ArcGIS Network Analyst, ArcGIS Schematics, ArcGIS Spatial Analyst, and ArcGIS Workflow Manager (single and concurrent use) Uncapped ArcGIS for Server: ArcGIS for Server Enterprise and Workgroup (Advanced, Standard, and Basic) Uncapped ArcGIS for Server extensions: ArcGIS 3D Analyst, ArcGIS Geostatistical Analyst, ArcGIS Image Extension for Server, ArcGIS Network Analyst, ArcGIS Schematics, ArcGIS Spatial Analyst, GeoEvent Server and ArcGIS Workflow Manager Uncapped ArcGIS Engine Uncapped ArcGIS Engine extensions: ArcGIS 3D Analyst, ArcGIS Engine Geodatabase Update, ArcGIS Network Analyst, ArcGIS Schematics, and ArcGIS Spatial Analyst (single and concurrent use) Uncapped ArcGIS Runtime Uncapped ArcGIS Runtime extensions: ArcGIS 3D Analyst, ArcGIS Network Analyst, and ArcGIS Spatial Analyst (single use) Uncapped E512G Page 9 of 13 06/26/2015 Table A-2 EA Products—Capped Quantities Rolled -In Qty. Item (if applicable) Qty./Seats to Be Deployed Total Esri Developer Network (EDN) - 3 3 Data Interoperability for Desktop Concurrent 2 2 4 Esri City Engine Advanced Single Use I - 1 Table A-3 ArcGIS Online Subscription Number of Named Users per Product Subscriptions Subscription Annual Credits per Subscription ArcGIS Online Level 7 Subscription / Unlimited 37,500 Portal for ArcGIS / 100 - E512G Page 10 of 13 06/26/2015 APPENDIX B EA FEE SCHEDULE The EA Fee will be $1,125,000.00. The EA Fee is in consideration of the EA Products, EA Maintenance, Esri International User Conference registrations, and the Esri Enterprise Advantage Program (EEAP). Number of Esri International User Year 1 (12/17/2015-12/16/2016) Year 2 (12/17/2016-12/16/2017) Year 3 (12/17/2017-12/16/2018) Total ELA Renewal Fee Payments $375,000 $375,000 $375,000 $1,125,000 Esri Included Included brcluded - Enterprise • 200 Learning and Services credits per year to be Esri Enterprise Advantage Program (EEAP) used at any time during the Term of the EA.* Advantage • 1 -day planning session (Annual) • Technology webcasts (Quarterly) Program Number of Esri International User Conference Registrations per Year 7 Number of Tier 1 Help Desk Individuals 6 Number of Sets of Backup Media, if Requested 5 Term of ELA pursuant to Section 7.1 3 Years through 12/16/2018 Support Incidents for EDN One 10-Pack/Year • 100 Technical Advisory hours per year • 200 Learning and Services credits per year to be Esri Enterprise Advantage Program (EEAP) used at any time during the Term of the EA.* • 1 -day planning session (Annual) • Technology webcasts (Quarterly) E512G Page 11 of 13 06/26/2015 c n. C O C O .y V K k7 d t v a � s aQ Q O C U r z E h H _ C v (j V L Vii Vi Q V E � E e � Z z W o �j e Q v o a+ o� = C ° o ciUVGaLa� c n. 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 E-mail: serviced esri.com Phone: 888-377-4575 Fax: 909-307-3083 2. Esri contact for Tier 2 Support issues: E-mail: sunportC esri.com Phone: 909-793-3774 (within the United States only) Fax: 909-792-0960 Web: supvortaesri.com 3. City centralized point of contact for order release and administrative issues: Name: E-mail: Phone: Fax: Sally Still Abbe_ sabbe@mylubbock. 806-775-2106 none 4. All invoices to City will be mailed to the address listed below (unless otherwise stated on the purchase order): City Office: Information Technology Name: c o Jay Zhine Address: PO Box 2000 Lubbock, TX 79457 5. All deliverables to City will be shipped to the address listed below: City Office: Same as # 4 Name: Address: 6. All notices to City will be mailed to the address listed below: City Office: Same as #4 Name: Address: E512G Page 13 of 13 06262015 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 1 Help Desk authorized individuals may be made by written notice to Esri. 1. Name: Jerrid Sanders Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-2396 Fax: n/a E-mail: jsanders@mylubbock.us 2. Name: Cory Medlock Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-2104 Fax: n/a E-mail: cmedlock@mylubbock.us 4. Name: David McGaughey Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-2372 Fax: n/a E-mail: dmcgaughey@mylubbock.us 5. Name: Kevin Randolph Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-2571 Fax: 806-775-3574 E-mail: krandolph@mail.ci.lubbock.tx.us 3. Name: Susan Nagihara 6 Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-3163 Fax: n/a E-mail: snagihara@mylubbock.us Name: Cody Kruger Address: PO Box 2000 Lubbock, TX 79457 Phone: 806-775-2542 Fax: 806-775-3574 E-mail: ckruger@mail.ci.lubbock.tx.us E512G Page 14 of 13 06/26/2015 •ESRI ENTERPRISE ADVANTAGE PROGRAM (EEAP) (;esri- ENTERPRISE AGREEMENT (EA) ADDENDUM (E125-EA) Esn, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2653 • FAX 909-793-5953 EEAP Agreement No. 2015EAP3977 This Esri Enterprise Advantage Program (EEAP) Enterprise Agreement (EA) Addendum adds terms and conditions to the EA with respect to the Esri Enterprise Advantage Program. 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 EA Addendum supersedes any previous agreements or understandings related to the Esri Enterprise Advantage Program. All other terms and conditions of the EA and any preceding addenda will remain in full force and effect. ARTICLE l—DEFINITIONS Capitalized terms that have not been defined in this EEAP EA Addendum 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 final page of this EEAP EA Addendum. 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 "Licensee Authorized Contact(s)" or "LAC" means up to two (2) 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. 1.7 "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. 1.8 "Licensee Website" means Licensee Content viewed through a user interface and made available via the Internet under the domain name reserved for the website. 1.9 "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. E125 -EA Page I of 13 08/06/2015 1.10 "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. 1.11 "Premium Support Report(s)" means a communication via telephone or email by Licensee to Support Services regarding technical problems with Software, Data, or Documentation. 1.12 "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. 1.13 "PSS" means Premium Support Services, which is a prioritized incident management and technical support program as further described at http: support.esri.com!en/suppo!:Vpremium. 1.14 "Renewal Period" means any one (1) -year extension of this EEAP EA Addendum. 1.15 "Secure Formats" means object code, executable code, or similar formats. 1.16 "Student(s)" means a registered participant for a specific training course, Licensee coaching services, or training -related services. 1.17 "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. 1.18 "Term" means the initial term of this EEAP EA Addendum as described in Section 7.1. 1.19 "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. 1.20 "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 EA Addendum. 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 lservicesieeao-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 (1) -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: htt www.esri.comiservices eea :'com onent0learnin . 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. E125 -EA Page 2 of 13 08:06:2015 2.2 Learning and Services Credit Use 2.2.1 Ctirrent on Maintenance. Licensee must remain current on standard maintenance during the Term of this EEAP EA Addendum. Standard maintenance is described at htip: www.esri.comleeal, 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 Dient. 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 that 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 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 Materia/s. This EEAP EA Addendum 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 EEAP EA Addendum 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. 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 E125 -EA Page 3 of 13 08:'062015 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 3.2.1 Owners/rip. Except as specifically granted in this EEAP EA Addendum, 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 EEAP EA Addendum. 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 shal l 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 EA Addendum. 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 EA Addendum 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, 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 purposes expressly set forth in Subsections 3.5.2 and 11.9 of this EEAP EA Addendum. 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. E 125 -EA Page 4 of 13 08/06/2015 ARTICLE 4—WARRANTIES AND DISCLAIMERS 4.1 Warranties 4.1.1 Esri will perform its obligation under this EEAP EA Addendum 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 htt :,-rwww.esri.com services.!emcs.!`packages. 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, 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. E125 -EA Page 5 of 13 08,061015 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 INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS EEAP EA ADDENDUM 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. ESRI'S 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 EA Addendum 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 The fees for the initial term of this EEAP EA Addendum are included in the EA Fees. 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: (1) 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 per diem basis in accordance with the per diem rates specified on the government General Services Administration (GSA) website at http:Hg_sa.gov . ARTICLE 7—TERM AND TERMINATION 7.1 Initial Term; Renewals. The Term of this EEAP EA Addendum shall run concurrent with the term of the EA. 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 EA Addendum; b. This EEAP EA Addendum will automatically be extended 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. E125 -EA Page 6 of 13 08/06/2015 7.2 Termination for Convenience. Licensee may terminate this EEAP EA Addendum without cause upon delivery of thirty (30) days' prior written notice or may simply choose not to renew the EEAP EA Addendum. 7.3 Termination for Cause by Licensee. Licensee may terminate this EEAP EA Addendum for Esri's material breach of its obligations under this EEAP EA Addendum 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 EA Addendum, 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 EA Addendum for Licensee's material breach of its obligations under this EEAP EA Addendum 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 EA Addendum a. The 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 EA Addendum 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 EA Addendum 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 EA Addendum, whichever comes first; c. Unless Esri terminates this EEAP EA Addendum 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 EA Addendum. 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 EA Addendum. Within sixty (60) days of termination of this EEAP EA Addendum, 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 EA Addendum. 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 EA Addendum. 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. 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 EA Addendum 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 paragraph, 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. E125 -EA Page 7 of 13 08/06/2015 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 EA Addendum 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 (Cll) from the US Department of Homeland Security. Notwithstanding anything in this Addendum 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 EA Addendum. 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 EA Addendum as further described at hM2:'!support.esri.com!en'Wport 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:,-/supi2ort.esri.comen: support/ rep mium. 9.4 PSS Restrictions and Exclusions 9.4.1 E.rcluded 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. 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 E.rceptions 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 limited to, those provided by Esri Professional Services or any third party. E 125 -EA Page 8 of 13 08.:062015 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 hgp:!, train ing.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 commitment 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 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 htt::' train inv.esri.com' atewa ,lindex.cfm?fa - classroom.requirements. g. Ensure that Student use of Training Materials provided by Esri complies with the terms of this EEAP EA Addendum. h. Assume full responsibility for Student attending training course(s) under this EEAP EA Addendum. 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 EEAP EA Addendum. i. Ensure that Student does not use audio and or video recording equipment within the classroom without prior written approval from Esri. E125 -EA Page 9 of 13 08'062015 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, an&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 EEAP EA Addendum 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 service; 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 d 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 seat(s) to an Esri training event. 10.7 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 EEAP EA Addendum while on Licensee's site. E 125 -EA Page 10 of 13 08 061:2015 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 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°/,o), 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 the 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. 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 EA Addendum, 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. 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 EA Addendum. 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 EA Addendum. 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; E 125 -EA Page I I of 13 08/06/2015 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 EA Addendum. 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 1 1.8, 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 EA Addendum; that this EEAP EA Addendum 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 EA Addendum, 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 EA Addendum 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). 12.3 No Implied Waivers. The failure of either party to enforce any provision of this EEAP EA Addendum 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 EA Addendum is determined to be invalid, illegal, or unenforceable, the parties agree the remaining provisions of this EEAP EA Addendum shall remain in full force if both the economic and legal substance of the transactions contemplated by this EEAP EA Addendum 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 EA Addendum, 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 frpm such performance to the extent of such prevention, restriction, or interference. 12.6 Applicable Laws. This EEAP EA Addendum shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles. E125 -EA Page 12 of 13 08/06/2015 12.7 Nonsolicitation of Contractor Personnel. Licensee shall not solicit for hire any Esri employee who is associated with efforts called for under this EEAP EA Addendum during the Term 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 EA Addendum 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 EA Addendum, provided that Esri shall remain responsible for the performance it delegates. This EEAP EA Addendum binds and benefits successors or assigns permitted under this Section 12.10. 12.11 Insurance. Each party shall, throughout the term of this EEAP EA Addendum, 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 EA Addendum. All Licensee contact regarding the Esri Enterprise Advantage Program shall be through the point of contact identified below. Contact: Sally Abbe Authorized EEAP Contact Information (to be completed by Licensee) Telephone: (806) 775-2106 Address: PO Box 2000 or 1625 131h Room 107 Fax: City, State, ZIP: Lubbock, TX 79407 Email: sabbe@mylubbock.us E125 -EA Page 13 of 13 08 062015 Exhibit A INSURANCE (Copies of Endorsements are Required) TYPE OF INSURANCE COMBINED SINGLE LIMIT GENERAL LIABILITY X Commercial General Liability General Aggregate $1,000,000 X Occurrence Products-Comp/Op AGG x Personal & Adv. Injury x Contractual Liability x AUTOMOTIVE LIABILITY X Any Auto Aggregate $1,000,000 X WORKERS COMPENSATION As required by State Law or OCCUPATIONAL MEDICAL AND DISABILITY OTHER: COPIES OF ENDOSEMENTS ARE REQUIRED X City of Lubbock named as additional insured on Auto General Liability on a primary and non-contributory basis. X Waiver of subrogation in favor of the City of Lubbock on coverages listed above.