Loading...
HomeMy WebLinkAbout25A - AGMT - DATA SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 16, 2012 TITLE: AGREEMENT WITH DIGITAL MAP PRODUCTS FOR DATA SERVICES Lvu? CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on Vt Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a five-year agreement with Digital Map Products to provide and maintain landbase data, digital orthophotography and access to a cloud-based map-viewing application in an amount not to exceed $70,500 annually. DISCUSSION The Public Works Agency uses a Geographical Information System (GIS), a computerized database management system for storage, management, analysis, and display of geographic data. To utilize the GIS system effectively, landbase data such as right-of-way, street centerlines, street names, and parcel data must be on the system and continuously updated. A number of outside entities, including The Gas Company, the County of Orange, and Dataquick have developed landbase data that includes the geographical area of Santa Ana and provides ongoing record updates. Each of these companies has a contractual arrangement with Digital Map Products (DMP) which, in turn, is offering the City an agreement that allows the use of this data for a five-year term. The City also licenses digital orthophotography (a photograph of the city from the air), which is a computerized image of the city used for viewing and producing various maps. These digital images, along with many layers of data and maps of the city, are available to all City users on the City's intranet and are valuable for ward redistricting and population analysis, assisting with permit processing, engineering project design, emergency response planning, and historical references. As part of the cost, Digital Map Products will also provide the City with access to a cloud-based GIS map viewer application, which will allow the City to provide spatially related information to the public such as zoning, land use, trash pickup, and Council wards for parcels located within the city. This will be the first time the City will be able to offer this data to the public. Using the cloud- based application will also allow the City to save money by reducing the need to acquire and maintain internal hardware. 25A-1 Agreement with April 16, 2012 Page 2 Digital Map Products FISCAL IMPACT Funds for the first year of the agreement are budgeted in the Public Works Administration activity for professional contract services (accounting unit 10117601-62300). Subsequent years will be budgeted and submitted with the Agency's annual budget. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Executive Director Public Works Agency RGlrLC Exhibit: 1. Agreement Francisco Gutierrez Executive Director Finance & Management Services Agency 25A-2 Agreement No. 04012012001 DIGITAL MAP PRODUCTS 18831 Von Karman Avenue Suite 200 Irvine, CA 92614 Order Form Proposed by: 3im Skurzynski Address & Contact Information Customer: City of Santa Ana Bill To: Contact Name: Teri Cable 20 Civic Center Plaza Billing email: TCable@santa-ana.org Santa Ana, CA 92701 Billing Phone: Terms and Conditions Effective Date: April 16, 2012 Payment Method: Check Contract End Date: April 15, 2017 Payment Terms: Net 30 Billing Method: email Billing Frequency: Annual Provided Content Product Term Total One-Time Fees Total Annual Fees CityGIST" Configuration Line Items • All CityGIST"' Configuration Line Items per the terms of Attachment A • CityGISTM + Developer API • CommunityViewTM + Developer API • ArcGIS Server Integration to CityGIS- (In development) Total CityGISTM Configuration Line Items 5 YR $ 30,000.00 GIS Data Configuration Line Items • All GIS Data ConfigurationLine Items per the terms of Attachment B • Parcel Database (annual updates) o Orange County geographic coverage or as specified by Customer o DGN and SHP file delivery onsite Property/Owner Attributes with onsite delivery (quarterly updates) 0 City of Santa Ana geographic coverage + 500' • 3" Ortho Imagery with onsite delivery 0 3 updates, one each to be delivered in Year-1, Year-3 and Year-5 o Geographic constraint to match current deliverable 0 Onsite delivery in either Aif, jpg, ecw or Mr. SID o DTM and DEM available but not included in this order o Grid not produced in this capture process 0 Contours not included in this order Total GIS Data Configuration 5 YR $ 33,000.00 GIS Services Line Items • Scope of GIS Services Line Items outlined in Attachment C • CityGIST"' Onsite Staff Training Sessions • Esri Transition Services • Aerial Imagery Wall Murals (5 @ 40" x 40" + 8 @ 66'x66' o Wall murals to be delivered in Year-3 Total GIS Services Line Items 5 YR $ 7,500.00 Summary Total Year 1 Fees $ 70,500.00 Total Year 2 Fees $ 70,500.00 Total Year 3 Fees $ 70,500.00 Total Year 4 Fees $ 70,500.00 Total Year 5 Fees $ 70,500.00 2a5 3 A-3 Agreement No. 04012012001 The parties agree to the terms contained herein including all exhibits and attachments. This Agreement may be executed in counterparts with the same force and effect as if executed in one complete document. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: 'Sonia Carvalho City Attorney CITY OF SANTA ANA Paul M. Walters Interim City Manager DIGITAL MAP PRODUCTS James Skurzynski Chief Executive Officer Tax ID No. RECOMMENDED FOR APPROVAL: Raul Godinez II Executive Director Public Works Agency 3 25A-4 Agreement No. 04012012001 Attachment A GIS License Terms 1. LICENSE, SUBSCRIPTION, AND PAYMENT 1.1 Subscription License. Subject to the terms of this Agreement, DMP grants to Customer a limited, non-exclusive, non- transferable, and non-assignable license to access and use the CityGISTM Configuration Line Items, hereinafter referred to as Provided Content. Customer's access and use of the Provided Content shall be solely for its normal internal business activities by its employees and consistent with Customer's representations to DMP. Customer agrees not to sell, pledge, assign, sub-license or otherwise transfer to any third party the Provided Content. The Provided Content shall be viewed solely through authorized access of the Web site. 1.2 Data Sublicense. Subject to the terms of this Agreement and Attachment A, Licensee hereby accepts, a non-exclusive, non-transferable, and non-assignable right and sublicense to use the GIS Data Configuration Line Items in the Provided Content solely for the Purpose described herein, from the Effective Date hereof until this Agreement is terminated or expires in accordance with its terms. 1.3 Payment for the License and Subscription. In exchange for the license or services granted, the Customer agrees to pay all the fees listed on the Order Form. All invoices are due upon receipt and are payable in accordance with the payment schedule. Any invoice not paid within thirty (30) days of its scheduled payment date shall be considered past due. 1.4 Non-Payment or Failure to Pay. If Customer's access and use is terminated or suspended due to non-payment or non-compliance, Customer shall nonetheless still be responsible for any fees as set forth in this Agreement. If DMP does not receive from Customer payment for the invoiced amount within thirty (30) days of its due date, DMP may suspend Customer's access and use of the Provided Content, until Customer brings its account current. 2. DURATION OF AGREEMENT & TERMINATION 2.1 Term of Agreement. This Agreement will continue for the period defined in the Order Form as the Initial Term. Upon termination of this Agreement, all licenses granted by DMP under this Agreement are immediately revoked. 2.2 Termination by Customer. DMP shall have the right to make a material modification to any of the content of, or discontinue any of the content of the Provided Content at any time with ninety (90) days prior written notice to Customer. Upon receipt of such notice from DMP, Customer may terminate this Agreement as of the effective date of the change by providing written notice to DMP at least thirty (30) days prior to the effective date of the change. 3. WARRANTY & LIMITATION OF LIABILITY 3.1 Limited Warranty. Each party represents and warrants that it has full power and authority to enter into this Agreement. Each party will indemnify and defend the other and its officers, directors, employees, and agents from third party claims arising out of or related to a breach of such party's representation or warranty in this Agreement. 3.2 Disclaimed Warranties. Except for any express warranties, DMP and each contributor to the Provided Content disclaims all warranties, including but not limited to any warranty of design, merchantability, fitness for a particular purpose, and against infringement. DMP and each contributors make no representation or warranties that the Provided Content is accurate and free of errors and/or omissions. As such the Provided Content is not suitable for use in emergencies. Customer accepts the Provided Content on an "as is", "as available" basis. 3.3 Limitation of Liability. DMP shall not be liable for any loss, injury, claim, or damage of any kind resulting in any way from Customer's use of the Provided Content (regardless of any assistance from DMP in using the content) or from any delay or failure in performance beyond the reasonable control of DMP. The aggregate and maximum liability of DMP in connection with any claim arising out of or relating to this Agreement shall be limited to a refund of 12 months of fees and taxes paid by Customer to DMP. DMP shall not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including attorneys' fees) arising in connection with Customer's use of the Web site, Provided Content, or the failure of DMP to perform its obligations, regardless of any negligence alleged. 25A-53 Agreement No. 04012012001 4. RULES AND OBLIGATIONS 4.1 Ownership. Customer acknowledges that the Web site and Provided Content are the intellectual property (patent, trademark, trade dress, copyright, trade secret) of DMP and agrees not to infringe DMP's intellectual property rights. 4.2 Copyright. Customer understands that DMP licenses copyrighted content and also understands that access and use of this copyrighted content is restricted by this agreement, DMP's copyrights and by the licenses granted to DMP by third parties. 4.3 Rights Reserved by DMP. Except for the license rights granted in this Agreement, DMP retains all rights in the Provided Content. 4.4 Preservation of Notices. Customer agrees to include, and will not remove or obscure, any copyright, trademark, patent, or other notices appearing on the Web site and Provided Content including any visual or hardcopy depictions of the same (i.e. Visual Output(s) or Print Output(s)). 4.5 Trade Secrets and Confidential Infdfmation. Customer also understands that the Web site and Provided Content are based on and include proprietary trade secrets and confidential information of DMP. Customer will not modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Web site or Provided Content. To the extent allowed by law, Customer will treat the Web site and Provided Content with at least the same degree of care (and no less than a reasonable degree of care) as that which it treats its own trade secrets and confidential information. 4.6 Consent to Use of Data. Customer agrees that DMP may collect and use technical information gathered as part of the product support services provided to the Customer under this Agreement. DMP may use this information solely to improve DMP's products or to provide customized services or technologies. 4.7 Works By DMP. Customer agrees that any works commissioned or undertaken by DMP pursuant to this Agreement shall be and remain the property of DMP. 4.8 New Use. Customer agrees that any use of any content contained on the Web site not authorized by this Agreement is strictly prohibited. Any improvements or future methods or means of accessing or using the Provided Content are expressly reserved to DMP. Customer further agrees that only individuals employed and authorized by the subscribing organization may access and use the Web site. 4.9 Injunctive Relief. Customer acknowledges that its use of the Provided Content for a use not specifically provided for in this Agreement. DMP will not have an adequate remedy in money or damages. As such, should Customer misuse the Provided Content, DMP and its Contributors shall have the right to seek injunctive relief against Customer to cease the misuse of the Provided Content. 5. ADDITIONAL PROVISIONS 5.1 Non-Assignability. Neither party may assign or transfer this Agreement without the prior written consent of the other party. Any unauthorized assignment or transfer will be null and void, and enables termination. This Agreement is binding upon any authorized successor or assignee. 5.2 Entire Understanding. This Agreement is the parties' entire agreement relating to its subject, and supersedes any prior or contemporaneous agreement on that subject. Any amendment must be in writing and expressly state that it is amending this Agreement. 5.3 Governing Law & Arbitration. This Agreement is governed by California law, excluding California's choice of law rules. All disputes relating to this Agreement will be subject to binding arbitration pursuant to the rules of the American Arbitration Association or the Judicial Arbitration And Mediations Services, Inc. The exclusive place of the arbitration shall be in Orange County, California. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. For the purpose of entry of judgment on such an award, the parties consent to personal jurisdiction in the courts of Orange County, California. Page A-6 3 Agreement No. 04012012001 Attachment B GIS Data Configuration Sublicense Terms 2012 DIGITAL MAP PRODUCTS This document and any portion thereof may not be reproduced without the prior written consent of DIGITAL MAP PRODUCTS This Sublicense Agreement (Agreement) is made and entered into as of April 1, 2012 (the Effective Date) by and between Digital Map Products, Inc. ("DMP' and City of Santa Ana (Licensee). Unless otherwise defined herein, all capitalized terms in this document have the respective meanings assigned to them in Section 1. RECITALS A. DMP is an authorized Sublicensor of certain Contributed Databases which are owned by third parties. B. Licensee desires to acquire from DMP and DMP desires to grant to Licensee a non-exclusive right and sublicense to use the Licensed Products containing all or portions of the contributed databases solely for the Purpose hereinafter defined. NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth herein, the parties of this Agreement hereby agree as follows: 1. DEFINITIONS 1.1 "Contributed Data Database" shall mean those certain Databases licensed by those certain Contributors to DMP with the right to grant sublicenses as set forth herein. The Licensed Products and Contributors relevant to this Agreement are identified in Exhibit A attached hereto and incorporated by reference herein. 1.2 "Contributor" shall mean a third party licensor of Contributed Databases to DMP. 1.3 "Database" shall mean a compilation of geographic, cartographic, engineering, architectural, tabular, text and/or other data, information or works, including, but not limited to, graphic and/or file data in automated or manual form. 1.4 "Derivative Databases" or "Products" shall mean all works created by Licensee which incorporate all or part of the Contributed Database, including, but not limited to, a revision, modification, translation, abridgment, condensation, expansion, collection, compilation or any other form of, or modification to the Contributed Database. 1.5 "Documentation" shall mean all manuals, user documentation, and other related materials pertaining to the Licensed Products which are furnished in order to ensure proper and/or ease of use of the databases by Licensee. 1.6 "Licensed Products" shall mean those portions of the Contributed Databases set forth in Exhibit A of this Agreement. 1.8 "Peripheral Databases" shall mean any work created by Licensee that does not incorporate, or use as a base, any portion of the Contributed Database or Derivative Product. 1.9 "Purpose" shall mean the use of Licensed Products for Licensee's normal business activities by its employees, agents and contractors, subject to the terms and conditions herein or as hereinafter modified in accordance with Section 2. Specifically excluded from the Purpose, but not limited to, is the public display or depiction of Licensed Products using the Internet unless explicitly authorized by DMP. 1.10 Visual Output shall mean all printouts, plots, displays, photographic film, printed matter and other visual representation of data. Page 5 of 25A-7 3 Agreement No. 04012012001 EXPANDED DEFINITION OF PURPOSE If in the future, during the term of this Agreement, or any subsequent extensions, Licensee requires an expanded definition of the Purpose to meet its normal commercial business objectives, DMP shall not unreasonably withhold such an expanded definition so long as such expanded definition does not cause Licensee to in any way compete with DMP or Contributors. GRANT OF RIGHTS DMP hereby grants, and Licensee hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive, non- transferable, and non-assignable right and sublicense to use the Licensed Products solely for the Purpose, from the Effective Date hereof until this Agreement is terminated or expires in accordance with its terms. Licensee may produce Visual Output from the Licensed Products and/or from Derivative Products for its normal business use. Licensee may also externally distribute to Licensee's contractors, consultants and agents that Licensee engages for the Purpose as Visual Output as long as the Licensee's contractors, consultants and agents do not compete with or replace current products and/or services of DMP or any of its affiliates or Contributors. Licensee shall not be precluded from charging fees for the distribution of such Visual Output provided that such fees are for the sole purpose of recouping costs consistent with Licensee's normal business practices. Without limiting the foregoing, Licensee understands and agrees that it shall in no event use any aspect of the Licensed Products to produce maps of any kind, or map-related or other information for any use or purpose other than the Purpose. Licensee may create Derivative Products to the extent that such Derivative Products contribute to the Purpose. Licensee shall be entitled to possess and use such Derivative Products, royalty-free, in perpetuity, under the terms of this Agreement, solely for the Purpose provided that use of such does not include any manner of attempt to reverse-engineer any aspect of Licensed Products. Licensee may provide copies of Derivative Products to DMP, but Licensee is not obligated to provide such copies at any time. Licensee shall have no right to assign, transfer, or sublicense any aspect of the Licensed Products, except for Derivative Products and to the extent and on the terms agreed. As a condition for such authorization by DMP, if granted, each such other party must abide by the restrictions on Licensee's use in this Agreement and execute an agreement satisfactory to DMP. Licensee's third party contractors, agents and consultants may use the Licensed Products and Derivatives Visual Output for Licensee's Purpose provided however that said third parties do not sell, license, or otherwise distribute Licensed Products, except for Derivative Products. Licensee shall not be precluded from charging fees for the distribution of Licensed Products Visual Output and Derivative Products to third party contractors, agents and consultants provided that such fees are for the sole purpose of recouping costs consistent with Licensee's normal business practices. DELIVERY 4.1 Delivery Formats. DMP shall make deliveries of the Licensed Products to Licensee in both a DGN and SHP standard format. During the term of this Agreement, should Licensee require the Licensed Products compatible with an additional GIS platform supported by DMP, DMP shall deliver such Licensed Products in the requested format within 30 days of written request therefor for a mutually agreed upon service charge. Licensed Products shall be delivered on mutually acceptable media compatible with Licensee's computer system. If Licensee has special delivery and/or format requirements, a predetermined mutually agreed upon service charge will be included in the price of the initial delivery and all" subsequent deliveries to which the special requirements apply. DMP shall deliver and install the Licensed Products within thirty (30) days of DMP's receipt of this signed Sublicense Agreement. 4.2 Delivery Resoonsibilities. DMP shall be responsible for the delivery of all Licensed Products. Licensee shall be responsible for installation of Licensed Products and maintenance updates, or new Licensed Products. Pte 6 of 1 2 A-8 3 Agreement No. 04012012001 SUPPORT 5.1 Regular Support. For the term of this Agreement DMP will provide telephone support for Licensed Products at the prevailing DMP technical consulting rates. Such support will be provided by technical staff as resources are available. 5.2 On-Call Support. Licensee may elect for On-call customer support and be provided with priority telephone access and an E-Mail address to communicate support issues to DMP for an annual fee. Normal hours of operation for On-Call Support are 8:00 a.m. to 5:00 p.m PST. A technical consultant will respond to all telephone requests submitted within four business hours and to all emergency requests within two business hours. A technical consultant will provide up to 16 hours per year of technical consulting resources required to address any specific issues as directed by Licensee. Any additional resources requested by Licensee will be made available at the prevailing DMP technical consulting rates. Licensee will appoint one contact person for addressing support issues to DMP. MAINTENANCE AND MODIFICATIONS. 6.1 Maintenance Update Schedule. Licensee shall receive Database updates to the Licensed Products according to the dates outlined on the Order Form. 6.2 Errors in the Licensed Product. Licensee may identify errors in the Licensed Product to DMP, but Licensee shall not be responsible for correcting such errors. Any errors detected by Licensee and identified to DMP in writing shall be forwarded to Contributors. Contributors shall investigate all errors and may at their sole discretion decide to fix such errors in which case such corrections shall be included in the next scheduled update of the Licensed Product to Licensee. DMP shall provide written feedback to Licensee with respect to the disposition of all errors communicated to DMP in writing. LICENSE FEES, PAYMENT AND ACCEPTANCE. 7.1 License Fees and Payments. In consideration of the license rights granted in Section 3 above, Licensee shall pay license fees for the Licensed Products and Other Products/Services as set forth on the Order Form, plus all applicable taxes. All applicable fees shall be invoiced annually at the beginning of each contract year. Licensee shall be invoiced in-full upon delivery and Licensee will pay the invoiced amount to DMP in-full within sixty (60) days from date of invoice. 7.2 Other Products/Services. Other Products/Services included with Licensed Products and corresponding fees have been itemized on the Order Form. 8. PROTECTION OF LICENSED PRODUCT. 8.1 Proprietary Notices. Contributors claim and reserve all ownership and rights afforded at law and in equity in all data, compilations, and materials that constitute the Licensed Products, including, but not limited to, all rights under federal copyright law. Licensee agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality, or other proprietary notice, mark, or legend appearing on the Licensed Product or on the Visual Output, including, but not limited to, any such notices displayed to the user during the operation of the Licensed Products and any such notices in the Documentation, and agrees to use its best efforts to reproduce and include the same on any copy of the Licensed Product or any portion thereof distributed to Licensee's consultants, agents and contractors. Map printouts and plots shall bear the following notice: Copyright 2012, All Rights Reserved Licensee shall use the same reasonable effort to include the above notice on all Visual Output and shall at all times exert no lesser effort than that Licensee uses to protect Licensee's own intellectual property. Licensee further agrees to use its best and reasonable efforts to require all contractors, consultants and agents using the Licensed Products, as provided in Section 3, to include the above notice on all Visual Output. 8.2 Ownership. Licensee further acknowledges that the Licensed Products in any form provided by DMP and any copies thereof, including, without limitation, all portions of the Derivative Products that are copied from or based on the Licensed Products, are the sole property of Contributors. Except for the rights expressly granted to Licensee herein, Licensee shall not have any right, title, or interest in or to such portions of the Derivative Products or to the Database or Documentation or any copies of any of the foregoing except as expressly provided in this Agreement, and further shall secure and protect the Database consistent the terms of this Agreement. DMP and Contributors make no claim of ownership or copyright in or to any original data contributed by Licensee to the Licensed Products or Derivative Products. All copyrights associated with the Licensed Product and relevant Contributed Databases and all other rights thereto not specifically granted to the Licensee in this Agreement are reserved by DMP. Nothing contained in this Agreement shall be construed as conferring any license or right with respect to any trademark, trade name, brand name, or the corporate name of DMP or Contributors. Pa e7of13 2 SA-9 Agreement No. 04012012001 8.3 Licensee's Ownership. DMP acknowledges that the Peripheral Products in any form, and any copies thereof, including, without limitation, any portion thereof which may have been given to DMP, are the sole property of Licensee. DMP shall not have any right, title, or interest in or to said Peripheral Products or the Peripheral Products data or documentation or any copies of the foregoing except as expressly provided in this Agreement. DMP shall secure and protect Peripheral Products consistent with the terms of this Agreement. All copyrights associated with Peripheral Products, and all other rights thereto not specifically granted to DMP in this Agreement are reserved by Licensee. Nothing contained in this Agreement shall be construed as conferring any license or right upon DMP or Contributors with respect to any Licensee logo, seal, product name, or the corporate name of Licensee. CONFIDENTIALITY AND INJUNCTIVE RELIEF. 9.1 Acknowledgment. Licensee hereby acknowledges and agrees that the Licensed Products are valuable and proprietary, embodying substantial creative efforts, trade secrets, and confidential information, ideas, and expressions of Contributors or DMP. Accordingly, Licensee agrees to treat the Licensed Products as confidential information in accordance with the confidentiality requirements and conditions set forth below. 9.2 Acknowledgment. DMP hereby acknowledges and agrees that the Derivative Products and/or Peripheral Products are valuable proprietary products, embodying substantial creative efforts, trade secrets, and confidential information, ideas and expressions of Licensee. Accordingly, DMP agrees to treat (and take precautions to ensure that its employees treat) the Derivative and/or Peripheral Products as confidential information of the Licensee in accordance with the confidentiality requirements set forth below. 9.3 Iniunctive Relief. Licensee acknowledges that the unauthorized use, transfer, assignment, sublicensing, or disclosure of the Licensed Products, Documentation, Derivative Products or copies thereof will (i) substantially diminish the value to Contributors of the trade secrets, copyrights, and other proprietary interests that are the subject of this Agreement; (ii) render DMP's remedy at law for such unauthorized use, disclosure, or transfer inadequate; and (iii) cause irreparable injury. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Licensed Products, Documentation, or Derivative Products, DMP shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief. 9.4 Injunctive Relief. DMP acknowledges that the unauthorized use, transfer, assignment, sublicensing, or disclosure of the Peripheral Products and/or Derivative Products or copies thereof will (i) substantially diminish the value to Licensee of the Peripheral Products and/or Derivative Products; (ii) render Licensee's remedy at law for such unauthorized use, disclosure, or transfer inadequate; and (iii) cause immediate irreparable injury. If DMP breaches any of its obligations with respect to the use or confidentiality of the Peripheral Products and/or Derivative Products, Licensee shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief. 9.5 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by other party in accordance herewith, and to protect the confidentiality thereof, in the same manner in which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have such obligation with respect to the use or disclosure to others of any confidential information that can be established to have: (a) been known publicly; (b) been known generally in the industry before communication by the disclosing party; (c) become known publicly, without fault on the part of the receiving party, subsequent to disclosure by the disclosing party; (d) been known otherwise by the receiving party before communication by the disclosing party; (e) been received by the receiving party without any obligation of confidentiality from a source (other than DMP) lawfully having possession of such information or, (f) which is required to be disclosed pursuant to any local, state or federal law or regulation. Upon (presentation of just cause and) ten (10) days' written notice to Licensee, DMP shall have the right to inspect and audit Licensee's procedures and to examine Licensee's computer systems in order to determine whether such procedures and computer systems comply with the requirements set forth in this Agreement. 10. WARRANTY. 10.1 Limited Warranty. DMP represents and warrants to Licensee that the Licensed Product will perform in all material respects. DMP further represents and warrants that it has the right to enter into this Agreement and to grant Licensee the rights granted hereunder. Should DMP be in breach of its representation and warranty under this Section 10.1, DMP's entire liability and Licensee's exclusive remedy under this Agreement shall be, at DMP's option, which option shall be exercised, within thirty (30) business days from the date of Licensee's notice of breach, either (i) return the Licensed Product(s) in exchange for the full refund of all of the fees paid for such Licensed Product, or (ii) repair or replace the Licensed Product upon its return to DMP provided, however, that DMP receives written notice from Licensee of a breach of warranty. Any replacement Licensed Product will be warranted for the remainder of this Agreement. Page 8of13 25A-10 Agreement No. 04012012001 10.2 Infringement. (a) If any action or proceeding brought against Licensee is based on a claim of infringement arising out of Licensee's use of all or any portion of a Contributed Database included in the Licensed Products, and if Licensee notifies DMP within thirty (30) days after the receipt of knowledge of any such action or proceeding, DMP shall, at its own expense, do the following to assure continuation of the use of the Licensed Products and Documentation: (i) procure for Licensee the right to continue to use any part of the Licensed Product and Documentation affected by such action or proceeding; or (ii) replace or modify, with Licensee's approval, any Licensed Products and Documentation determined to be infringing such that the infringement is removed; or (iii) failing (i) or (ii) above reimburse Licensee for the pro rata portion of the Licensed Products license fee paid to DMP by Licensee, if any, for any period in which Licensee is unable to use the Licensed Product as a result of such action or proceeding. Licensee shall exert its best efforts to cooperate with DMP in DMP's defense of such actions and proceedings. DMP shall give Licensee prompt written notice of any potential infringement problems of which it becomes aware. (b) Notwithstanding anything to the contrary contained herein, DMP and Contributors shall have no warranty, liability or obligation with respect to Peripheral Products or to any modifications of the Database by Licensee if, absent the incorporation of the Licensed Products or modifications made by Licensee, the claim of infringement would not have occurred. Further, if any claim, suit or demand is asserted by a third party that, as a result of modifications by the Licensee, the Licensed Products as so modified infringes on intellectual property right of the third party or that Peripheral Products infringe on intellectual property right of the third party, Licensee shall defend, indemnify and hold harmless DMP with respect to any and all losses, necessary and reasonable costs, liabilities or damages resulting from or in conjunction with such claim (including reasonable and necessary attorneys' fees) and any judgment that may be awarded against DMP to the extent based upon such Licensee made modification or Peripheral Product. 10.3 Disclaimer of Warranties. THE WARRANTIES STATED IN SECTION 10.1 ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY DMP. THERE ARE NO OTHER WARRANTIES RESPECTING THE LICENSED PRODUCT, DOCUMENTATION, OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT, EVEN IF DMP HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF DMP IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF DMP AS SET FORTH HEREIN. 10.4 Limitation of Liability (a) Except as otherwise expressly set forth in this Agreement, neither DMP, Contributors nor Licensee shall be liable to any of the others for any special, indirect, incidental or consequential damages resulting from a breach of this Agreement including, but not limited to, loss of use of or under-utilization of labor or facilities, loss of revenue or anticipated profits, or claims of customers, resulting from performance or nonperformance of the obligations under this Agreement. (b) Except for claims of infringement or unauthorized disclosure of the other party's proprietary or confidential information, any provision herein to the contrary notwithstanding, the maximum liability of DMP to any person, firm, or corporation whatsoever arising out of or in connection with any license, use, or other employment of the Database delivered to Licensee hereunder, when such liability arises from any claim based on breach or repudiation of contract or warranty, shall in no case exceed the actual Licensed Product License Fee paid to DMP by Licensee for the Licensed Product, the license, use, or other employment of which gives rise to the liability. 11. TERM OF AGREEMENT. This Agreement shall be effective on the Effective Date and shall continue in effect commensurate with the terms specified on the Order Form, unless terminated in accordance with the terms and conditions of Section 12. 12. DEFAULT AND TERMINATION. 12.1 Events of Default. This Agreement may be terminated by the non-defaulting party if any of the following events of default occur: (a) a party materially fails to perform or comply with this Agreement or any provision hereof, (b) a party fails to strictly comply with the provisions of Section 8 (Protection) or of Section 9 (Confidentiality and Injunctive Relief) or makes an assignment in violation of Section 16 (Non-assignability); (c) any transfer, sale, merger, or acquisition of more than fifty percent (50%) of the issued and outstanding shares or assets of either party; (d) a party ceases doing business, becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (e) a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; (f) such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days. Pa e9of13 25A-11 Agreement No. 04012012001 12.2 Effective Date of Termination. Termination under subparagraphs 12.1(b), (c), (d), (e), or (f) above shall be effective on notice. Termination under subparagraph 12.1 (a) shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty-day (30-day) period. 12.3 Obligations on Expiration or Termination. Upon expiration or termination of this Agreement, Licensee shall cease and desist all use of the Licensed Products, and Licensee shall promptly deliver to DMP at termination all full, or partial, copies of the Licensed Products and Documentation in Licensee's possession or under its control. Expiration or termination shall not prohibit Licensee from continued use of Peripheral Products in perpetuity under the terms specified herein and continued use of Derivative Products in perpetuity under the terms specified herein provided that such use does not include any manner of attempt to recreate any form of the Licensed Products from such Derivative Products and Licensee continues to protect such Derivative Products in perpetuity as outlined in this Agreement. Licensee acknowledges that its failure to comply with the obligations of this Section will constitute unauthorized use of the Licensed Products, entitling DMP to equitable relief as specified herein. 13. INDEPENDENT CONTRACTOR STATUS Licensee DMP agrees that DMP is an independent contractor and not an employee of the Licensee and all of DMP's personnel shall be employees or subcontractors of DMP and not employees of the Licensee. DMP shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 14. INSURANCE REQUIREMENTS DMP shall obtain, at its sole cost and file with licensee prior to exercising any right or performing any obligation pursuant to this Agreement, and maintain for the period in which annually licensed products are in effect, a policy or policies of liability insurance or a certificate of such insurance, satisfactory to Licensee, naming Licensee, its officers and employees as additional insured, which insurance coverage shall not be less than that provided in the form of a comprehensive liability insurance policy against injuries to persons or property resulting from or arising out of negligent operations of DMP, its officers or employees. Said policy or policies of insurance shall provide coverage for both general liability and automobile liability in not less than the following minimum amounts: One Million Dollars ($1,000,000.00) combined single limit for automobile liability, including bodily injury and property damage; One Million Dollars ($1,000,000) general aggregate for general liability. Said policy or policies shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until after thirty (30) days notice thereof has been given in writing to Licensee. DMP shall give to Licensee prompt and timely notice of claims made or suit instituted arising out of Digital Map Product's operations hereunder. DMP shall procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which in its own judgment, may be necessary for its own for its proper protection in the performance of the work. 15. NOTICES All notices, authorizations, and requests in connection with this Agreement shall be deemed given (a) five days after being deposited in the mail, postage prepaid, certified, or registered, return receipt requested; or (b) one day after being sent by overnight courier, charge prepaid; and addressed as first set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other, addressed as follows: If to DMP: Digital Map Products, Inc 18831 Von Karman Ave., Suite 200 Irvine, CA 92612 Attn: Contracts Phone: (949) 333-5111 FAX: (949) 333-5112 If to Licensee: City of Santa Ana 20 Civic Center Plaza (M-30) Santa Ana, CA 92701 Attn: Clerk of the Council Phone: (714) 647-6520 FAX: (714) 647-6956 16. NON-ASSIGNABILITY Licensee may not assign or transfer this Agreement or all or any part of its rights hereunder, by operation of law or otherwise, without the prior written consent of DMP. Any unauthorized assignment or transfer shall be null and void and shall constitute grounds for immediate termination of this Agreement under Section 12 above. DMP may assign this Agreement to a related party, or unrelated party as part of a merger, acquisition or the business re-organization and Licensee hereby consents to such assignment. This Agreement shall inure to the benefit of and be binding upon any permitted successor or assign. Pa 10 f 13 29A-'1 2 Agreement No. 04012012001 17. GOVERNING LAW The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without regard to the conflicts of laws principals thereof. 18. SEVERABILITY If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. 19. MISCELLANEOUS. 19.1 Entire Understanding. This Agreement and the exhibits attached hereto contain the entire understanding and agreement between the parties respecting the subject matter hereof and all prior quotations, invoices, negotiations, understandings, representations, and agreements of the parties, whether oral or written, are superseded in their entirety. 19.2 Modifications to Agreement. This Agreement may not be supplemented, modified, amended, released, or discharged except by an instrument in writing signed by each party's duly authorized representative. 19.3 Headings Not Controlling. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. 19.4 Consent to Breach Not Waiver. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. 19.5 Third Party Beneficiary. Licensee acknowledges that the provisions of this Agreement are intended to inure to the benefit of the Contributors. If Licensee breached any of these provisions, the Contributors will be entitled to enforce this Agreement directly against the Licensee, whether in DMP's or the Contributors' name. Licensee further acknowledges that DMP executes this Agreement as principal on its own behalf and, exclusively to accept or otherwise perfect the Contributors' rights against Licensee, as agent on behalf of the Contributors. Page 11 of 13 25A-13 Agreement No. 04012012001 Attachment C Scope of Services Line Items Intergraph to Esri Transition Services The City of Santa Ana currently uses Intergraph GeoMedia GIS software and desires to migrate to ESRI GIS software. In order to assist with the transition, Digital Map Products will provide GIS layer conversion, software training and technical advice regarding best practices for the setup and configuration of ArcGIS Server, ArcInfo and ArcView in a network environment. Tasks GIS Layer Conversion • 75 hours budgeted for this task. Convert existing city created Intergraph GIS layers (including text features) to ESRI GIS format. • Create ArcGIS documents (MDX format files) to replace existing city map print formats. ESRI Software Training • 25 hours budgeted for this task with flexibility in the selection of the type of classes provided. • Training options: o Provide on-site software training for key city staff (up to 20 users) to ensure they are able to find, access, and utilize city GIS data within the ESRI environment. o Provide advanced, administrator level training for the setup, configuration, use and maintenance of ArcGIS Server and Arc/Info software. ESRI Software - Technical Support and Best Practices • On-Call support and best practice services for City Staff (See Attached Rate Card) • Questions will be forwarded to DMP Page 12 of 13 25A-14 Agreement No. 04012012001 Hourly Rate Card The following rate shall apply for additional services not specifically outlined in this Attachment C. • Software Architect: $200/hour • Software Engineer: $150/hour • Product/Support Specialist: $125/hour • Data Development Specialist: $125/hour Aerial Imagery Wall Murals Digital Map Products shall delivery wall murals of aerial imagery to match those previously delivered in the 2007 - 2011 contract. Tasks Delivery of Aerial Imagery Wall Murals • 5 @40"x40" • 8@66"x66" Page 13 of 13 25A-15 25A-16