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HomeMy WebLinkAboutURBANFOOTPRINTOrange UrbanFootprint Civic California Santa Ana Prepared for The City of Santa Ana Tustin Remy Leaf /1 remyo irbanfootprint.com 4/25/2010 URBAN - EA �.. FOOTS R f NT TIXX5 x JFtBR EF00 t NRit Tr�COM � '.934- �- _ ll0 iyOi . •t i.���iyr��yyi .. URBAN FOOTPRINT Welcome to the UrbartFootprint Civic Program, The City of Santa Ana Thank you for taking the time to look at UrbanFootprint. We are very excited about The City of Santa Ana taking part in the UrbanFootprint Civic - California program and having you as part of the UrbanFootprint family! We have really enjoyed spending time with you to understand how UrbanFootprint could bring true value to The City of Santa Ana and help: • Save you time and money by getting projects started quicker • Give you access to structured, curated and well sourced data • Improve collaboration within The City of Santa Ana, with your regional planning organization, and with external consultants • Quickly analyze the impact of proposed development • Produce presentation ready reports • Reduce the need to use external consultants URBAN FOOTPRIN_r „ City of Madison Supports 2040 Comprehensive Plan with UrbanFootprint Challenge: Navigating Growth, Sustainability, and Community in Madison, Wisconsin. The thriving City of Madison expects to see a 25% increase in population by 2040, As the city prepares its 2040 Comprehensive Plan update, the need for an enhanced public transit system via bus rapid transit (BRT) emerged as a key component in supporting a socially equitable future for a growing and increasingly diverse population. Madison sought to raise the bar and go beyond the standard planning conversation to explore how an added BRT system would not only impact transit accessibility, but also related factors like public health, emissions, and more. City of Madison Planner Ben Zellers attributes this challenge of quantifying future growth scenarios as the catalyst for bringing UrbanFootprint onboard: "We needed a better way to model impacts and benefits of what BRT could do for the city and region" Solution: Quantifying Future Scenarios Promotes a Path to Increased Transit Accessibility, Improved Social Equity, and Minimized Environmental Impact, The City of Madison is using UrbanFootprint to develop several alternative scenarios to truly understand the full impact of future BRT corridor options and what would happen if the community were to support more corridor redevelopment in the long term. UrbanFootprin�e impact analysis has allowed Madison to expand the Comprehensive Plan conversation beyond standard planning metrics to critical factors like household costs, vehicle -miles traveled (VMT), residential water use, residential energy use, emissions, and more. Zellers shared, "Using UrbanFootprint has helped us go beyond general benefits and estimates to quantify specific predicted outcomes. We are now able to put numbers to solutions and project how each scenario will impact our efforts to increase transit ridership and reduce VMT UrbanFootprint has played an important role in our city's transportation planning and Comprehensive Plan update. Moreover, it has reduced the amount of time we spend on data prep, allowing us to focus on creating better outcomes for the community." URBAN 1 FOOT I Plan Overview Unlimited Projects Whether general or specific, support all projects with full access to UrbanFootprint's powerful arsenal of data analysis, mapping, and reporting. Unlimited Scenarios Compare unlimited design alternatives at every scale — from local neighborhood sites to regional policy and master plans. Scenario Comparison Reports Build community consensus with real-time impact reporting. Planning Analytics Evaluate redevelopment opportunities and potential site challenges with ease. Comprehensive Context Data and Maps Gain instant access to pre -loaded, curated datasets. Reference Layer Import Easily align custom information or parcel -level details with our pre -built datasets. Building and Place Type Library Connect to the Building and Place type library for seamless scenario development. Add or customize place types when needed. Email Support Our customer success team is on standby to answer any questions during the planning process. URBAN FOOTPRINT Onboarding Upon execution of this agreement the following steps will occur Account Creation 1. If an account does not already exist, The City of Santa Ana will provide us with an email address 2. We will assign a free -of -charge UrbanFootprint Civic license to the designated email address 3. The City of Santa Ana will receive an invite email with a link to the UrbanFootprint account Data Share 1. We will send The City of Santa Ana a data intake form Z The City of Santa Ana will fill out an entry per data set for the metadata. Additionally, The City of Santa Ana will provide access to each data set (URL, ftp site, CID etc) 3. We will review and sign -off on the data -intake form 4. An email notification will be sent out to The City of Santa Ana once the data sets have been ingested and made available in UrbanFootprint Training & Orientation We will provide a I hour live training and Q&A focused on: 1. Creating & Managing Projects 2. Developing Exhibits & Maps 3. Analysing Existing Conditions 4, Exploring Alternatives with Scenarios 5. Understand Impacts with Planning Analytics & Reporting 6. Administration 7. Support $' URBAN FOOTPRINT Pricing Overview The City of Santa Ana - UrbanFootprint Civic UrbanFootprint-Civic $0.00 1 0% $0.00 _i d2i may i.JwJop, n nt IL rt Total $0.00 Additional user licenses for UrbanFootprint may be purchased at a discounted rate. K Ul� 8AN (i, i-i Tares and S18ri turc The term of the UrbanFootprint Product Service Agreement ("Agreement") begins on the Effective Date (Date of Customer Acceptance) and runs through the End Date (1 calendar year from Date of Customer Acceptance). The City of Santa Ana is required to complete their on -boarding within 60 days of the Effective Date including the delivery of data to UrbanFootprint required under the Data Sharing Agreement. UrbanFootprint reserves the right to terminate the agreement if the Data Sharing is not completed in that ti meframe. UrbanFootprint reserves the right to audit the usage of UrbanFootprint. If the customer is participating in the UrbanFootprint California Civic program, their use of UrbanFootprint shall be limited to planning projects within the jurisdictional boundary. The City of Santa Ana 20 Civic Center Plaza ADDRESS ACE TEED BY (CUSTOMER) e-�_11301zolq DATE OF CUSTOMER A `CEPTANCE UrbanFootprint 2095 Rose St #201, Berkeley, CA 94709 l000MR& W;XtM ATTEST: COMMENDED FOR APPROVAL: r NORMA MITRE MINH THAI Acting Cleric of the Council Executive Director, Planning & Building Agency APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Y� Lisa Storck Assistant City Attorney ACCEPTANCE URRAN F0J)I IN I UrbanFootprint UrbanFootprint Subscription Agreement Terms and Conditions 1,Background. These terms and conditions ("Agreement") govern the provision of the Platform by UrbanFootprint ("UrbanFootprint") and the party indicated in the applicable Quotation ("Customer"). The parties agree as follows: UrbanFootprint is in the business of developing and providing access to UrbanFootprint, a platform for managing land use data, testing land use scenarios and providing data analytics. Customer wishes to have access to such platform as described herein. 2,Services. 2.1Access, UrbanFootprint shall make the Platform available to Customer pursuant to the terms of this Agreement and the relevant Quotation during the Subscription Term. The Platform will be hosted by UrbanFootprint, and provided as a service. 2.2Use of the Platform. Any limitations on Customer's scope of use of the Platform will be as set forth in the one or more quotations to be agreed to by and between Customer and UrbanFootprint (each, a "Quotation"). UrbanFootprint will provide Customer access to the Platform solely by Users authorized by Customer, User accounts and passwords are specific to individual Users, and may not be shared among or by other users. Customer administrators may reassign a User account during the Subscription Term, if a former User no longer requires access to or use of the Platform. All Users must be (a) employees of Customer, or (b) agree to abide by the terms of this Agreement, in which event Customer will be responsible for such Users' adherence to the terms of this Agreement. 2.2(a)If pricing per User is specified in the Quotation, Customer shall allow only the number of Users indicated in the Quotation to use the Platform. If Customer allows use of the Platform by Users in excess of the number indicated in the Quotation, such excess use will not be a breach of this Agreement, but such additional Users may use the Platform, subject to payment by Customer of the applicable fees for the Subscription Term at the highest undiscounted per -User rate indicated in the Quotation, 2.2(b)A Project Area is a single planning project area as described in the Quotation. If pricing per Project Area is specified in the Quotation, Customer shall only use the Platform for the applicable Project Area. 2,2(c)Per capita means the number of persons residing in the jurisdiction for which a project is being conducted by Customer, as measured at the commencement of the applicable term. If pricing per capita is specified in the Quotation, Customer shall only use the Platform for projects conducted for the applicable jurisdiction. Customer may use the Platform to conduct an unlimited number of projects within such jurisdiction. 22(d) If Civic pricing is specified in the Quotation, Customer shall allow only employees or consultants of the named department(s) to use the Platform. If Customer allows use of the Platform by Users in departments other than the department(s) named in the Quotation, such excess use will not be a breach of this Agreement, but such additional Users may use the Platform, subject to payment by Customer of the applicable fees for the Subscription Term at the highest undiscounted per -Department rate indicated in the Quotation. K URBAN F(I,)TP1<',ni 2.3Support. During the Subscription Term, UrbanFootprint will provide Customer with UrbanFootprint's standard level of support as indicated in the attached Service Level Agreement (SLA) at no additional charge. Additional support is available at additional fees as specified in the Quotation. 2.4Customer Responsibilities. Customer will be: (a) responsible for Users' compliance with this Agreement and shall use the Platform only in accordance with the UrbanFootprint Platform documentation, (b) responsible for the accuracy, integrity, and legality of Customer Data and the means by which it acquires and uses such Customer Data, and (c) solely responsible for determining the suitability of the Platform for Customer's business and complying with any regulations and laws, (including, without limitation, export, data protection and privacy laws) applicable to Customer Data and Customer's use of the Platform, 2.511estrictions. Customer shall not, directly or indirectly: (a) provide the Platform on a timesharing, service bureau or other similar basis; (b) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Platform or the data contained therein, or (c) use the Platform, or permit it to be used, for purposes of benchmarking, competitive intelligence, comparative analysis, orto develop a competing product or service. 2.6113rofessional Services. If the Quotation indicates that UrbanFootprint will provide any customization, installation, training, or similar services, UrbanFootprint shall provide such services as described in the Quotation for the fees described therein. 2.7Client Software. UrbanFootprint may provide Customer with certain client software (such as local web applications or mobile device apps) to facilitate use of the Platform. UrbanFootprint hereby grants to customer a non-exclusive, non -transferable, non-sublicensable right, during the term of this Agreement, to use such software solely in connection with the use of the Platform. 2.8Security and Business Continuity. UrbanFootprint shall provide the Platform in accordance with the business continuity metrics in the attached Service Level Agreement. 2.90pen Source Software. UrbanFootprint may in its sole discretion make available certain portions of the Platform available under software licenses such as open source licenses. Nothing in this Agreement restricts Customer's rights under any such separate license. 3.Third-Party Software. The Platform may provide access to certain Third Party Software, as indicated in the Quotation. In such case, Customer may be required to enter into additional terms and conditions of the applicable third party. Any such terms will be referenced in the Quotation. 4.Customer Data, Usage Data 4.1 Processing of Customer Data. Customer is solely responsible for entering its Customer Data (including Personal Data) into the Platform. Subject to the remainder of this Section 4, UrbanFootprint will have the right to use the Customer Data for the sole purpose of providing the Platform to Customer and to perform its obligations under this Agreement, including to prevent or address support, service or technical problems. Customer shall not upload any Customer Data into the Platform without sufficient rights to do so. Without limiting the foregoing, Customer, and not UrbanFootprint, will be responsible to enter into any licenses from third parties who may have intellectual property rights in the Customer Data that may be necessary to use the Customer Data in connection with the Platform, and Customer shall n--.-7 z a r5 Si Uf1.�r,i ensure that its use of the Customer Data complies with any non -disclosure obligations of Customer, and any applicable privacy policies or laws. 4.2Security. UrbanFootprint will use reasonable and customary technical measures to protect against accidental or unauthorized destruction, loss, alteration or disclosure of Customer Data, and reasonable and customary security programs and procedures to ensure that unauthorized persons will not have access to any equipment used by UrbanFootprint to process Customer Data. UrbanFootprint does not recommend storing personally identifiable information of third parties in the Platform, and accordingly, UrbanFootprint will not be responsible for any liability or loss arising from Customer storing such data in the Platform. 4.3Usage Data. In the course of providing Customer with the Platform, UrbanFootprint may also collect, use, process and store Usage Data in order to create and compile anonymized and aggregated statistics about the Platforms. UrbanFootprint will have the right to use such data in any manner, subject only to the confidentiality obligations of Section S. 4AData Sharing Discount. If Customer has selected the Data Sharing Discount or UrbanFootprint Civic in the applicable Quotation, UrbanFootprint will have the right to use, reproduce, modify and otherwise exploit, at no additional payment to Customer or its agents, the Customer Data, S.Proprietary Rights. 5.1 ownership of Platform and Modifications. UrbanFootprint retains all right, title and interest, including all intellectual property rights, in and to the Platform. In the event UrbanFootprint prepares any modification of the Platform at Customer's request, the parties may enter into a separate written professional services agreement. Unless the parties do so in advance in writing, UrbanFootprint will retain all right, title and interest in and to any such modifications. 5.2Suggestions. Customer or its Users may provide suggestions, enhancement or feature requests or other feedback to UrbanFootprint with respect to the Platform (collectively, "Feedback"), All Feedback will be given by Customer entirely voluntarily. Customer grants and agrees to grant to UrbanFootprint a royalty -free, transferable, irrevocable, worldwide, fully paid -up license under Customer's intellectual property rights to use, disclose, reproduce, license (with rights to sublicense through multiple tiers of sublicensees), sell, offer for sale, distribute, import and otherwise exploit the Feedback without restriction or obligation of any kind or nature. 6.Payment 6.1 Fees and Payment. Customer shall pay all fees specified in the relevant Quotation and such fees are payable in United States dollars (unless expressly agreed otherwise in a Quotation), are exclusive of taxes and are non-refundable. Fees are due in advance, unless otherwise set forth in the Quotation. 6.2Additional Capacity. Additional Capacity may be added during a Subscription Term at UrbanFootprint's then -current fees. All such additional Capacity must be purchased in advance. If Customer elects to increase its Capacity during a given month of the Subscription Term, unless otherwise set forth in the Quotation, UrbanFootprint shall prorate fees for such additional Capacity for any partial month of the Subscription Term. 771 USAN id f OOTPRINT 6.311enewal. N/A 6.4Overdue Charges. If any undisputed charge owing by Customer to UrbanFootprint remain unpaid 30 days after its due date, including without limitation due to a declined or expired credit card, UrbanFootprint may, without limiting its rights and remedies, suspend Customer's use of the Platform until such amounts are paid in full. 6.5Taxes. Unless otherwise provided in a Quotation, fees specified in quotes or Quotations, do not include any Taxes, and Customer is responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on UrbanFootprint's net income. 6.6Cancellation and Subscription Renewal. This section does not apply to Customer. 6.7Credit Cards. This section does not apply to Customer. 6.BRefunds. Fees paid for any Subscription Period are non-refundable. 6.9Free Trials. UrbanFootprint may make the Platform available to Customer on a trial basis free of charge for a period specified in a Quotation. This Agreement shall govern Customer's the use of the Platform during any such trial period. The provisions of Sections 7.4 (Transition), 9.1 (UrbanFootprint Warranties), 10.1 (UrbanFootprint Third Party Claims), and 12.1 (Publicity) will not apply to any free trial. 71erm and Termination. 7.1Term. This Agreement commences on the Effective Date and continues through the Subscription Term until all Quotations hereunder have expired or have been terminated. The Subscription Term for each Quotation will commence on the Effective Date (or such other date specified in the Quotation) and will continue for the relevant period set forth in the Quotation. 7.2Termination by Customer or UrbanFootprint. If Customer is a California jurisdiction participating in the Civic program without having purchased additional licenses, either party may terminate for any reason with 30 days notice. In all other cases, either party may terminate this Agreement and any then - current Quotation prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for 30 days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors or (iii) with 30 days written notice during any Free Trial period and any subsequent Quotation period. 7.3Effect of Termination. Upon expiration or termination of this Agreement, the rights granted under this Agreement and any then -current Quotations will be immediately revoked and UrbanFootprint may immediately deactivate Customer's account, UrbanFootprint may keep copies of Customer Data solely to the extent necessary for the performance of its obligations under this Agreement; however, UrbanFootprint will not be obligated to keep Customer Data after the date of termination except as may be specifically set forth in a Quotation. In no event shall any termination relieve Customer of the obligation to pay any fees payable to UrbanFootprint for any period prior to the effective date of termination, unless otherwise stated in this Agreement. URBAN FOOTPRINT 7.4Transition. Upon expiration or termination of this Agreement, for any reason other than termination by UrbanFootprint for breach by Customer under Section 7.2, Customer may elect to continue access to the Platform with a limited -access subscription that allows Customer to copy the Customer Data from the Platform to its own computer servers, but not to add Customer Data or engage in additional processing of Customer Data. Unless otherwise set forth in the Quotation, such limited access subscription will be, for each month, 25% of the prorated amount payable for the last month of the subscription. 7.5Surviving Provisions. Sections 4, 5, 7.3, 8, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement. 8.Confidentiality. 8.1 Confidentiality. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) limit access to any Confidential Information of the disclosing party, except (a) for those employees, representatives, or contractors of the receiving party who require access to the Confidential Information to enable receiving party to exercise its rights and obligations under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third -party confidential or proprietary information disclosed to such party; or (b) as disclosure may be required by law or governmental regulation, subject to the receiving party providing to the disclosing party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the receiving party's use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the disclosing party's Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The receiving party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. Source code of the Platform is Confidential Information of UrbanFootprint or its licensors. 8.2Destruction. Within 5 days after a disclosing party's request, the receiving party shall return or destroy the disclosing party's Confidential Information; provided, however, that the receiving party shall be entitled to retain archival copies of the Confidential Information of the disclosing party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law. 9. Warranties. 9.1UrbanFootprint Warranties. UrbanFootprint warrants that (a) the Platform shall perform materially in accordance with the written specifications for the Platform; and (b) UrbanFootprint will use commercially reasonable measures to detect whether the Platform contains any Malicious Code. If the Platform does not conform to the warranty specified above and before Customer pursues any other remedies, Customer must notify UrbanFootprint in writing no later than 30 days after the breach of warranty, and UrbanFootprint agrees to use commercially reasonable efforts to cure the non- conforming portions of the Platform. UrbanFootprint is not responsible for any non-compliance URBAN FOOTPRINT resulting from or caused by any (i) Malicious Code present in Customer Data, (ii) modifications made by anyone other than UrbanFootprint or its agents or (iii) software not supplied by UrbanFootprint. Customer's sole and exclusive remedy for a breach of any of warranties contained in this Section shall be to terminate the Agreement for cause and, notwithstanding anything to the contrary in this Agreement, have UrbanFootprint refund to Customer the pro rata unused portion of any prepaid fees. 9.2111eciprocal Warranty. Each party warrants to the other party that it has the legal power and authority to enter into this Agreement. 9.3111Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE UrbanFootprint PLATFORM IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 10.Third Party Claims, 10.1 UrbanFootprint. UrbanFootprint shall at its expense (a) defend or settle any third party claims, actions and demands brought against Customer and its officers, directors, employees or agents, where the third party claimant expressly asserts that (i) the Platform infringes such third party's trademarks, copyrights or US patents, or (ii) UrbanFoatprint misappropriated such third party's trade secrets in the development of the Platform; and (b) pay damages, if any, finally awarded by a court of competent jurisdiction against Customer indemnified parties or agreed upon in settlement by UrbanFootprint (including other reasonable out-of-pocket costs incurred by Customer, including reasonable attorneys' fees, in connection with enforcing this Section 10.1), subject to the exclusions (1)-(5) set forth below. UrbanFootprint has no obligation to Customer under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) Third Party Software or Customer Data, (2) modifications where the Platform would not infringe (including by way of example, Modifications made by Customer, but excluding Modifications made by UrbanFootprint or its agents), (3) combination of the Platform with other software, processes or materials where the Platform would not infringe except for such combination, or (4) Customer's use of the Platform not in accordance with this Agreement. In the event that UrbanFootprint believes the Platform, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section applies, then UrbanFootprint may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Platform or any applicable part thereof, (2) replace such Platform, or infringing part thereof, with a non -infringing version (or part thereof), (3) modify such Platform, or infringing part thereof, so as to make it noninfringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Platform, and, notwithstanding anything to the contrary in this Agreement, have UrbanFootprint refund to Customer the pro rata unused portion of any pre -paid service fees. This Section states Urban Footprint's sole liability to, and Customer's exclusive remedy for, infringement claims of any kind in connection with the UrbanFootprint Platforms or services delivered under or in connection with this agreement. 10.2Customer. Customer shall at its expense (a) defend or settle any third party claims, actions and demands brought against UrbanFootprint and its officers, directors, employees and agents; and (b) pay all damages, if any, finally awarded against the UrbanFootprint indemnified parties or agreed upon in settlement by Customer (including other reasonable out-of-pocket costs incurred by UrbanFootprint, F; U P H A N FCU I PRIM I including reasonable attorneys fees, in connection with enforcing this Section) arising from: (i) Customer's breach or violation of Customer's responsibilities under Sections 2..4 or 2.5, (ii) claims that Customer Data or use thereof in the Platform infringes or violates the rights of a third party, or (iii) claims that Customer's or its Users' use of the Platform or services in violation of this Agreement infringes or violates the rights of such third party. 10.3Indemnification Procedures. The party entitled to seek coverage pursuant to this Section (the "Indemnified Party") shall: (a) promptly notify the other party obligated to provide such indemnification (the "Indemnifying Party") in writing of any such claim; (b) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party's rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party's prior written consent); and (c) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling such claim. The Indemnified Party mayjoin in defense with counsel of its choice at the Indemnified Party's own expense. 11.1-imitation of Liability. 11.1 Limitation on All Damages, EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 2.5 AND CUSTOMER'S OBLIGATIONS TO PAY FEES UNDER ANY ORDER ISSUED UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAYABLE BY CUSTOMER TO UrbanFootprint UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. 11.2Disclaimer of Consequential Damages, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE). 12.General. 12.1 Publicity. UrbanFootprint may include Customer name on a customer list and in its portfolio for sales purposes, provided that UrbanFootprint will not take any action implying sponsorship by Customer. 12.2United States Government Users. The Platform is commercial computer software as defined in FAR 2.101, Any related documentation, technical data, or services are also commercial. In accordance with FAR-12.212 and DFARS 227.7202, all rights conferred in the Platform, related documentation, technical data, services, or any deliverable to the United States Government are specified in this Agreement. All other uses are prohibited and no ownership rights are conferred. URBAN F(OFPRI"II 12.3Export Compliance. Platform is subject to all applicable export control laws and regulations, including, without limitation, those of the United States government. 12.4Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Quotations), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void. 12.5111elationship of the Parties, UrbanFootprint and Customer are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 12.6No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. 123Choice of Law and Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Customer and UrbanFootprint agree to submit to the personal and non-exclusive jurisdiction of the courts located in Los Angeles County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 12.8Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to Customer at the address Customer provides, or, in the case of UrbanFootprint, to the address for UrbanFootprint set forth above. Notices regarding the Platform in general may be given by electronic mail to Customer's e-mail address on record with UrbanFootprint. 12.gForce Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks. 12.10Entire Agreement. This Agreement and any Quotations represent the entire agreement of the parties concerning its subject matter and is intended to be the final expression of their Agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. No amendment or waiver of any provision of this Agreement or a Quotation shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Customer and UrbanFootprint. 12.11Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. 7 uPB4P.i FOOTPRINT 13.Definitions 13.1 "Customer Data' means any data, information or material processed or stored by Customer in the Platform. 13.2"Confidential Information" means information that one party provides to the other party during the term of this Agreement that is identified at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 13.3"Malicious Code' means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs. 13.4"Modifications" means any work based on or incorporating all or any portion of the Platform, including, without limitation, modifications, enhancements and customizations to the Platform developed by UrbanFootprint. 13.5"Quotation" means a document for purchases of Services hereunder, prepared by UrbanFootprint, signed by Customer, and accepted by UrbanFootprint. 13.6"Platform" means online planning software as a service offering that UrbanFootprint makes available to Customer hereunder. 13.7"Project Area' is defined as a contiguous geographic region for which a planning project occurs, such as neighborhoods, cities, counties, or regional planning boundaries. When the Platform is sold on a per Project Area basis, the Project Area will be defined as set forth in the Quotation or as otherwise agreed by the parties. 13.8"Subscription Term" means the period of time which Customer may access the applicable Platform as set forth in a Quotation. 13.9"User" means an individual employee, contractor or agent of Customer authorized to use the applicable Platform for which Service has been purchased and who has been given a user identification and password. 13.10"Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes. 13.11 "Third Party Software" means applications or software Platforms that are developed by third parties, and that may interoperate with the Platform, the use of which software is governed by the applicable terms and conditions specified by such third party. 13.12"Usage Data' means diagnostic and usage related content from the operation of the Platform and may include, but is not limited to, type of browser and systems that are used and/or accessed, licensing, system and service performance data. Usage Data does not, however, include Customer Data, except in aggregated and de -identified form. URBAN FOOTPRINT Service Level Agreement (SLA) to UrbanFootprint Subscription Agreement between UrbanFootprint and The City of Santa Ana Email and chat support: Sam — 6pm (Pacific Time), Monday through Friday. Customer will appoint a single support liaison (and one backup) to communicate with UrbanFootprint support. UrbanFootprint will not be obligated to answer support inquiries from any other contact. Any support request must be submitted through the customer support portal (currently available via email at support@urbanfootprint.com and online at http:Hhelp.urbanfootprint.io). Each incident will be issued a ticket number by UrbanFootprint. Any follow up calls by Customer must include the applicable ticket number. Support requests will be categorized by UrbanFootprint according to the following table, and respond to support requests as indicated therein. Priority Description Response Time Priority 0 Process cannot complete, there 4 business hours is no workaround and the solution is business critical. Examples: An analysis module does not return results It is not possible to export a layer It is not possible to export a layer as a SHP file, but it is possible to export the layer in a different format Priority 1 Process cannot complete and 2 business days there is no workaround, but the condition is NOT business critical, however, must be resolved by the next scheduled or period end processing. Examples: Priority 2 Process cannot complete, but 2 business days there is a workaround that allows processing to continue. uizaN FOOI`PRINT Priority 3 This priority addresses 5 business days "cosmetic° type calls with no financial or processing impact. Service Level Agreement UrbanFootprint for Civic customers will be available 99.9% of the time every month. If UrbanFootprint does not meet this guarantee, you will be eligible to receive a Service Credit as described below. Definition of Unavailability UrbanFootprint will be considered unavailable when it is inaccessible during two or more 10 minute intervals. Unavailable means: app.urbanfootprint.corn returns a server error response to a valid user request app.urbanfootprint.com is inaccessible online Calculating Uptime Uptime in a month will be calculated by subtracting from 100% the percentage of minutes during the calendar month in which UrbanFootprint is unavailable. Service Credit Service credits are calculated as a percentage of the total charges you owe us each month, or your annual fee divided by 12, as follows: Total Available Uptime per month Credit Amount 99.9%-100% 0% 99% - 99.89% 10% Less than 99% 15% FOOIPRI!lT To receive a credit, you must contact UrbanFootprint within 30 days following the end of the unavailability via email at support@urbanfootprint.com and include the dates and times of unavailability. If we confirm that the uptime percentage in a month covered by your request is below 99.9%, we will issue you the service credit. Service credit is added to the end of your term for the service and cannot be exchanged for, or converted to, monetary compensation. The maximum service credit that we will issue for downtime in a month is 15% of the fees you otherwise owe us for that month. This Service Level Agreement is your sole and exclusive remedy (and our sole liability) for unavailability of our services. Limitations A period of unavailability is excluded from the service level guarantee and will not count towards unavailability calculations for purposes of service credits if: • the unavailability is due to scheduled maintenance • you are in breach of our terms of service, or your services agreement with us as applicable (including your payment obligations to us), or the unavailability is otherwise due to your actions; • the unavailability is caused by factors outside of our reasonable control, include a force majeure event such as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, orders, or restrictions, denial of service attacks and other malicious conduct, utility failures, or any other cause of service unavailability that was beyond UrbanFootprint reasonable control. ,t URBAN W FOOTPRIN I Addendum - UrbanFootprint Civic Agreement Data Sharing Program Description This section describes a program (the "Data Sharing Program") to enable local jurisdictions (each participating jurisdiction, a "Customer") to receive free -of -charge access to UrbanFootprint Civic, to support the Customers planning and related activities by agreeing to the terms described below. 1.UrbanFootprint Civic The Data Sharing Program term is renewable annually. UrbanFootprint may discontinue the Data Sharing Program at any time, in which case the UrbanFootprint Civic license provided to the Customer under the Data Sharing Program will terminate at the end of the applicable annual period UrbanFootprint Civic provides government planning entities i.e. MPOs, counties, cities, jurisdictions a complete suite of data, alternatives development, analysis, and reporting features. These features enable users to understand their project sites by leveraging: • An extensive data library with dozens of California and national datasets, including parcel data, transportation, environmental, demographic, and other datasets. • A complete scenario development toolkit, including customizable library of land use types, and easy -to -use alternatives development tools. • A full suite of analytical engines, including water, energy, transport, health, conservation, and accessibility models. • Mapping, reporting, and scenario comparison features. The complete set of UrbanFootprint Civic features is described in more detail on in The participating Customer may purchase additional UrbanFootprint user licenses at a negotiated discounted rate per user per year at any time during the period of participation in the Data Sharing Program. Note that such discounted licenses may be used only during the period of Customer's Data Sharing Program participation. 2.Data Sharing Agreement The Customer will provide UrbanFootprint with data as follows 2.1 Data Use: The data provided by the Customer under the Data Sharing Agreement will be available for use in UrbanFootprint without restriction or charge, and in perpetuity, including to all other users of UrbanFootprint. Typical users of UrbanFootprint include planners, designers, architects, and advocates at private firms, NGOs, and public agencies. 2.2Data Updates: Where available, the Customer will provide datasets, new or updated, to Urban Footprint annually before the end of the Civic license term. UrbanFootprint reserves the right to discontinue the Data Sharing Agreement should they determine that the Customer has not made reasonable effort to provide updated, approved datasets in a timely manner. 3 Ui RAN In! iooIPRWr 2.3Data Sets Data sets will fall into one of two categories: 2.3(a)Mandatory: If it exists within the Customer's possession, the data set must be made available for use in UrbanFootprint in order to participate in the Data Sharing Program, 2.3(b)Other Available: Other data sets that the Customer has may be made available in UrbanFootprint in order to facilitate better planning within the jurisdiction. Example datasets are listed below. 2.4Mandatory Data Sets and Obligations The following data sets are required in order to participate under the Data Sharing Program. Customer must check all that apply ❑ 2.4.1 Parcel Land Use: Current land use at the parcel level 2.4.2Parce1 Geometries: Geodata depicting the actual parcel shapes and boundaries. If the ❑ Customer does not maintain this data they may defer to the county for access or delegate provision to a third -party ❑ 2.4.3Current Zoning: Current zoning at parcel or forest resolution possible ❑ 2.4.4Future Zoning: Planned zoning designations at parcel or finest resolution possible Each mandatory dataset must be accompanied by descriptions and metadata and/or official jurisdiction links to such descriptions. See metadata section at the end of this document. If the Customer is unable to provide the above mandatory data sets, UrbanFootprint may in its sole discretion waive its right to receive such data or to reduce the amount of discounts or credits available to Customer under the Data Sharing Program for providing more limited data. 2.5Available Data Sets and Obligations If the Customer can provide additional valuable data sets, voluntarily sharing them with UrbanFootprint will result in higher quality depictions of existing conditions and thus improve access to quality data for all public and private sector practitioners. Such datasets include, but are not limited to the list below. 2.5.1 High Priority Datasets Customer must check all that apply ❑ Dwelling unit counts: Housing units by type (sf, mf, attached, etc) ❑ Employment counts: Employees by NAICS codes 7�URSAN Id 1- 00 1 PR I N r U Building information: Building area, FAR, floor count, height, etc (at parcel -level) 0 Pipeline/planned projects: Future development projects 0 Future transit networks: Planned transit lines and stops, with alignment, capacity and speed (if possible, in GTFS format) ❑ Future infrastructure projects: Planned infrastructure ❑ Parks: Parks, if not part of parcel file El Hospitals: Medical facilities, if not part of parcel file ❑ Schools: Schools, if not part of parcel file ❑ Historic Structures and Resources: parcel and/or building -level 0 Hazards and Toxics: parcel or other geography as relevant ❑ Land cover satellite imagery: Satellite or aerial imagery if available ❑ Priority conservation areas ❑ Priority development areas ❑ Neighborhood/community boundaries 13 Traffic Analysis Zones (TAZs) 11 Population and Employment forecasts 13 Travel model skims: by auto, by transit, and by other modes 11 Future subdivision boundaries / new neighborhood parcels 13 Vehicle trip lengths and trip length frequencies: By TAZ or smaller geographies 13 OTHER: 2.5.20ther Datasets Additional data sets may voluntarily be made available by the Customer as part of the Data Sharing Program, Examples of data sets that other Agencies have made available include: * Education: Schools, Colleges and Universities LIR ,AN rd r00rPRINI- • Environment: Protected Areas, Plant Inventories, Invasive Plant Inventory, Critical Habitats, Watersheds, Hydrography, Wildlife Corridors, Ecoregions, Protected Areas • Equity: Health, Poverty, Fair Market Rents, Transportation Costs, Racially / Ethnically Concentrated Areas, Public Housing Buildings, Redlining Areas • Health: Hospitals, Emergency service districts, health surveys • Infrastructure: Energy Use Rates, Water Consumption, Natural Gas Consumption, Electricity Prices, Alternate Fuel Stations, Unit Costs (cost of water mains per foot or roads per sqft), Infrastructure Costs (Operations & maintenance costs - for example, the cost to maintain roads) • Land Use: Historic Places, Landmarks, Parks and Open Space, Military Installations, Restaurants, Fire Stations • Political Boundaries: County, City, School Districts, Future Boundaries • Transportation: Airports, Railways, Roads, Household travel surveys, External vehicle trips, Transit ridership, Current and future bicycle networks, Bike/walk paths, Transportation Network Company (TNC) data • Other: Vehicle Crashes, Ports 2.6Data Set Metadata In addition to providing the mandatory data described above, Agencies are required to provide the following metadata in a structured form as per specifications provided by UrbanFootprint: • Meta Category: Select from OF data categories (Demographic, Political Boundary, Environmental, etc.) • Data Set Description • Column Descriptions: Including column data type • Source Agency/Entity: Where does data come from? • Spatial Or Aspatial: Is the data geospatial in nature or not? • Jurisdictional Scale: Select from a list of scales • Location: Where does the data represent? • Data Vintage (Year): What year does the data represent? • Update Frequency: How often is the data updated? • Update Scale: How much of the data is updated during each update? • Date Last Updated • License Notes: Record any important license notes • Disclaimers • Privacy and Security Notes • Additional: Any xml files or symbology data 2.7Analytical Calibration To improve analytical models for the city and all users, the Customer may, but will not be obligated to, provide data and assistance in tuning and calibrating the UrbanFootprint analytics modules for use within the Customer's area of jurisdiction. This activity involves providing and/or reviewing inputs to baseline utility and gas prices, common household costs, and various transportation factors. 2.8Additional Terms and Conditions q I ! URBAN W FOOTPRIN-1 • This Data Sharing Program does not obligate UrbanFootprint to make any payment or refund to the Customer; the consideration provided by Urban Footprint is in the form of credits or discounts only. • The Customer grants UrbanFootprint perpetual, non-exclusive use of all data shared under the Data Sharing Program. • UrbanFootprint may discontinue the Data Sharing Program in its sole discretion at any time. If UrbanFootprint discontinues the Data Sharing Program the Customer's free -of -charge use of the UrbanFootprint platform under the Data Sharing Program will end at the end of the applicable annual term. • The Customer is solely responsible for ensuring that it has the right to provide the applicable data under the terms described in this Data Sharing Program. The terms and conditions of the Data Sharing Program are incorporated by reference into the UrbanFootprint Product Service Agreement between the Customer and UrbanFootprint dated