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HomeMy WebLinkAboutC-4204 - License Agreement for Orange County 3 Inch Pixel Resolution ImageryOEagle Aerial Imaging—Aerial Imagery Products Orange County 3 Inch Pixel Resolution Imagery V License Agreement between Eagle Aerial Imaging & City of Newport Beach 17952 Skypark Circle 3300 Newport Blvd. Suite B P.O. Box 1768 Irvine, CA 92614 Newport Beach, CA 92658 Date of This License Agreement: May 28, 2012 ("Effective Date") THIS AGREEMENT SUPERSEDES AND REPLACES ALL PREVIOUS AGREEMENTS BETWEEN THE PARTIES HERETO WITH RESPECT TO AERIAL IMAGERY CAPTURED DURING 2012 AND ALL YEARS THEREAFTER. ALL DATA DELIVERED TO YOU UNDER THIS AGREEMENT IS COPYRIGHT PROTECTED This License Agreement ("License Agreement") is a legal and binding agreement between The City of Newport Beach, a California municipal corporation ("Licensee") and Eagle Aerial Photography Inc., a Delaware Corporation d.b.a. Eagle Aerial Imaging ("Eagle"). This License applies to the digital aerial photography being delivered to Licensee pursuant to this License Agreement, which consists of vertical ortho-photographs (the "Ortho Imagery") and oblique photographs (the "Oblique Imagery") ( The Ortho Imagery and the Oblique Imagery are sometimes hereinafter collectively referred to as the "Licensed Imagery"). The Licensed Imagery delivered under this License Agreement is licensed by Eagle for use only under the terms and conditions set forth herein. Any additional imagery, data, software or web -based product delivered or made available in any form at any time to Licensee by Eagle shall by subject to the terms of this License Agreement and shall at all times remain the property of Eagle. Accessing the Licensed Imagery or related data provided to you by Eagle indicates that you accept, and agree to, and will abide by the terms and conditions of this License Agreement. A. License Agreement 1. Grant of License (a) Eagle grants Licensee a non-exclusive license to use the Licensed Imagery under the terms set forth herein. Licensee shall have the right to use the Licensed Imagery for internal operations by employees of Licensee only (including emergency response employees of Licensee for dispatch and in -vehicle use) and any contractors who are doing specified work for Licensee and only with respect to such work on the condition that such contractors sign the form of Contractor License attached hereto. Additionally, Licensee shall be permitted, up to 50 times per year, to allow the use of the License Imagery by entities who are developing or constructing real estate project within the City of Newport Beach ("NB Developers") in connection with the development or construction of that project. NB Developers may have access to the Licensed Imagery in the form of prints of any size on any type of paper, or pdf format digital files as long as those files do not contain GIS coordinates. Additionally, with respect to the general public, Licensee shall have the right to transfer or sell to the public hardcopy prints containing the Licensed Imagery on the condition that said hardcopy prints: 1) are printed on regular bond printer paper only (not photo or similar paper); 2) are no larger than 17 inches by 11 inches in size; and 3) contain a readable photo credit on each print in a font of at least 9 points in size which reads "Photo provided by Eagle Aerial Imaging www.eagleaerial.com". Any additional use will be permitted only to the extent and on the terms agreed, in writing, in advance, by Eagle in its sole and absolute discretion (the above uses are hereinafter collectively referred to as the "Permitted Use"). Except for the Permitted Use, Licensee shall have no right to assign, transfer, share, sublicense, sell, lend or otherwise use, any aspect of the Licensed Imagery or any products derived from the Licensed Imagery, such as prints, digital files or the like ("Derivative Products"), except for the Permitted Use. Eagle shall have the right to audit Licensee's use of the Licensed Imagery by direct or electronic means. Licensee shall fully reimburse and indemnify, defend and hold harmless Eagle for any loss, liability, claim or damage to its economic interests or intellectual property rights arising from any violation of the terms of this License Agreement. The terms of the preceding sentence shall survive the termination of this License Agreement. (b) Licensee may display the Ortho Imagery that was photographed in 2010 which was previously delivered to Licensee by Eagle under a prior contract on its publically viewable website at any time following delivery by Eagle of the Ortho Imagery that will be photographed in 2012 AND the payment by Licensee of the invoice applicable to such 2012 imagery. In each subsequent year of this License Agreement, Licensee may display Ortho Imagery that was captured approximately two years prior to the most recent delivery of Ortho Imagery under this License Agreement. Licensee may display the Oblique Imagery delivered to Licensee under this License Agreement on its publically viewable website at any time. If Oblique Imagery is obtained by Licensee from Eagle in later years under a separate agreement, then Licensee shall display on its publically viewable website the newer of: a) the oldest Oblique Imagery received by Eagle in its possession or b) Oblique Imagery that is at least two years past its date of capture. No Licensed Imagery so displayed shall be downloadable by the public. It shall be view only. Licensee shall provide a link on its website to Eagle's website during such time as the such imagery is displayed on Licensee's website, with such link located immediately below the image, if that is reasonably feasible. 2. Product Specification The Licensed Imagery will be delivered on CD/DVD's, hard drives or the like. The Licensed Imagery shall consist of: (a) The Ortho Imagery. Three Inch pixel resolution color digital aerial imagery of the approximately 105 square mile coverage area shown on the exhibit attached hereto (or if no exhibit is attached, the coverage will be the same as that which was delivered to Licensee in 2011) (the "Coverage Area"). The Licensed Imagery shall have a horizontal accuracy conforming to WAS of 1 "=100', for a horizontal accuracy of plus or minus one meter over 90% of the coverage area provided. The imagery will be delivered in ecw format. Eagle will process and deliver the imagery in MrSid to Licensee's grid as directed by Licensee for an additional charge of $550 per year. (b) The Oblique Imagery, Three Inch Pixel resolution color oblique imagery using the existing GeoVista protocol and software over a coverage area consisting of approximately 55 square miles, as previously received by the Newport Beach Police Department from Eagle Aerial. Licensee may also purchase from Eagle the right to use GeoVista software for use with the Oblique Imagery, at the price set forth below. 3. Product Delivery. Eagle shall make three deliveries of the Ortho Imagery over a three year period under the follow schedule during the term of this License Agreement: Delivery Date (approximate) Third Quarter 2012 Second or Third Quarter 2013 Second or Third Quarter 2014 Imagery Date Flown (approximate) First or Second Quarter 2012 First or Second Quarter 2013 First or Second Quarter 2014 Eagle shall deliver the Oblique Imagery as soon as reasonably possible following its capture, which is currently scheduled to occur during late 2012. This one delivery shall be the only delivery of Oblique Imagery during the term of this License Agreement. 4. Multi -Year Agreement; Payment Terms; Right to Match Future Competing Offers. (a) Total Compensation. The total not to exceed compensation over the term of this License Agreement, including all taxes, shipping fees or costs for the Licensed Imagery shall not exceed Sixty Eight Thousand One Hundred Eighty Dollars and 00/100 ($68,180.00) payable in accordance with the following schedule below. (b) Ortho -Imagery. Upon execution of this License Agreement, Licensee shall pay to Eagle Eighteen Thousand Five Hundred Twenty Dollars and 00/100 ($18,520.00) plus One Thousand Four Hundred Thirty Five Dollars and 00/100 ($1,435.00) sales tax (at 7.75%) plus Fifty Dollars and 00/100 ($50.00) shipping plus Five Hundred Fifty Dollars and 00/100 ($550.00) for customized MrSid processing for a total not to exceed Twenty Thousand Five Hundred and Fifty Five Dollars and 00/100 ($20,555.00) for the first year of the License Agreement. Following first year purchase, an annual invoice in the amount of Twenty Thousand Five Hundred and Fifty Five Dollars and 00/100 ($20,555.00) is due in each of the remaining two (2) years of the License Agreement on the anniversary of the Effective Date first listed above. For a total not to exceed amount of Sixty One Thousand Six Hundred Sixty Five Dollars and 00/100 ($61,665.00) for all Ortho -Imagery costs for the term of this License Agreement. (c) Oblique Imagery. Upon delivery to Licensee of the Oblique Imagery, Licensee shall pay to Eagle Four Thousand Dollars and 00/100 ($4,000.00) plus Three Hundred Ten Dollars and 00/100 ($310.00) sales tax (at 7.75%) plus Fifty Dollars and 00/100 ($50.00) shipping for a total of Four Thousand Three Hundred Sixty Dollars and 00/100 ($4,360.00) for the Oblique Imagery for the term of this License Agreement. Licensee will also purchase the GeoVista software for use with the Oblique Imagery for Two Thousand Dollars and 00/100 ($2,000.00) plus One Hundred and Fifty Five Dollars and 00/100 ($155.00) of sales tax (at 7.75%), for 2 a total not to exceed amount of Six Thousand Three Hundred Sixty Dollars and 00/100 ($6,360.00) for all Oblique Imagery costs for the term of this License Agreement. (d) Early Termination Fee. Licensee acknowledges that it has received a discounted price for the Ortho Imagery based upon Licensee's agreement to purchase the Ortho Imagery for multiple years. Therefore, if Licensee desires to terminate this License Agreement after payment and delivery for the initial year of Ortho Imagery, Licensee shall immediately pay Eagle an early termination fee of Eight Thousand Three Hundred Thirty Four Dollars and 00/100 ($8,334.00). If Licensee desires to terminate this License Agreement after payment and delivery for the initial year and the second year of Ortho Imagery, Licensee shall immediately pay Eagle an early termination fee of Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00). Upon any early termination election by Licensee, Licensee will be permitted to continue to use the Oblique Imagery for a period of up to one (1) year following its delivery by Eagle to Licensee in the event such termination occurs prior to the expiration of that one year period. 5. Termination or Expiration. Without prejudice to any other rights, Eagle may terminate this License if Licensee fails to comply with the terms and conditions of this License Agreement. In such event, all rights granted to Licensee hereunder shall automatically terminate. Upon termination of this License Agreement, Licensee shall immediately cease any and all further use of the Licensed Imagery and shall promptly purge all copies thereof from all computers and electronic devices on which any of it has been stored or made available at the time. In the event of early termination by Eagle, Eagle shall not be entitled to any early termination fees from Licensee. 6. Copyright. Purchase of this product does not transfer any right, title, or interest in Eagle, the Licensed Imagery or the Derivative Products, except as specifically set forth in this License Agreement. This is a formal notice that the Licensed Imagery is protected by the Untied States copyright laws and international treaty provisions. The Licensed Imagery is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subjected to restricted rights applicable to commercial computer software (under DFARS 52.227-7013). 7. Exportation. Licensee shall be responsible for obtaining all required government approvals, permits and licenses for the exportation and importation of the Licensed Imagery, and for payment of all applicable taxes and related charges, including without limitation payment of all customs duties, excise taxes and brokerage fees. Licensee shall not export the Licensed Imagery to any prohibited country, shall not release the Licensed Imagery to any prohibited foreign national, and shall otherwise comply with all applicable requirements of U.S. export control laws during and after the term of this Agreement. 8. General. This License Agreement shall be governed by the laws of the State of California. No failure or delay by either party in exercising any right, power or remedy with respect to any of the provisions of this License Agreement shall operate as a waiver thereof. This Agreement sets forth the entire agreement between the parties. There are no other understandings, terms or agreements expressed or implied, oral or written. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing, signed by all parties. If any dispute should arise with respect to the subject matter of this License Agreement, the prevailing party shall not be entitled to recover from the other party any attorneys' fees or costs incurred in connection with such dispute, whether or not such dispute shall be brought to final judgment. 9. Records. Eagle shall keep records and invoices in connection with the Services to be performed under this Agreement. Eagle shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to Licensee, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Eagle under this Agreement. All such records and invoices shall be clearly identifiable. Eagle shall allow a representative of Licensee to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Eagle shall allow inspection of all Licensed Imagery, work, data, Documents, proceedings and activities related to the License Agreement for a period of three (3) years from the date of final payment to Eagle under this License Agreement. 10. Withholdings. Licensee may withhold payment to Eagle of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Eagle shall not discontinue Licensee's ability to use the Licensed Imagery as a result of such withholding. Eagle shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Eagle shall be entitled to receive interest on any withheld sums at the rate of return that Licensee earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 11. Conflicts of Interest. (a) The Eagle or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Licensed Imagery provided under this License Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. (b) If subject to the Act, Eagle shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this License Agreement by Licensee without the obligation to pay any early termination fee. Eagle shall indemnify and hold harmless Licensee for any and all claims for damages resulting from Eagle's violation of this Section. 12. Project Manager. (a) Eagle shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to Licensee at all reasonable times during the License Agreement term. Eagle has designated Wayne Tate to be its Project Manager. Eagle shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of Licensee. Licensee's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. (b) Eagle, at the sole discretion of Licensee, shall remove from the Project any of its personnel assigned to the performance of services upon written request of Licensee. Eagle warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 13. Administration. This Agreement will be administered by the City Manager's Office. Rob Houston, Assistant to the City Manager or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 14. Notices. (a) All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Eagle to Licensee shall be addressed to Licensee at: Attn: Rob Houston, Assistant to the City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644-3033 (b) All notices, demands, requests or approvals from Licensee to Eagle shall be addressed to Eagle at: Attn: Wayne Tate Eagle Imagery 17952 Skypark Circle, Suite B Irvine, CA 92614 Phone: (714) 754-7670 15. Standard Provisions. (a) Compliance with all Laws. Eagle shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Eagle shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and Licensee. (b) Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 4 (c) Integrated Contract. This License Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. (d) Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this License Agreement and any other attachments attached hereto, the terms of this License Agreement shall govern. (e) Interpretation. The terms of this License Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. (f) Amendments. This License Agreement may be modified or amended only by a written document executed by both Eagle and Licensee and approved as to form by the City Attorney. (g) Severability. If any term or portion of this License Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. (h) Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. (i) Equal Opportunity Employment. Eagle represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. (j) Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. B. LIMITED WARRANTY 1. DIGITAL AERIAL PHOTOGRAPHY Eagle makes no warranty as to the accuracy of the digital aerial photography or any other data provided or sold. The customer is expected to determine (with sample data) if the accuracy level of the digital aerial photography will meet their specific needs. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EAGLE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. C. LIMITED LIABILITY STATEMENT IN NO EVENT SHALL EAGLE, OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OR THE USE OF OR INABILITY TO USE THE EAGLE PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO CASE SHALL THE LIABILITY OF EAGLE, OR ITS SUPPLIERS, OR DISTRIBUTORS EXCEED THE AMOUNT RECEIVED BY EAGLE FOR THE PRODUCT. 5 IN WITNESS WHEREOF the parties hereto have executed this License and Renewal Agreement as of the dates written below APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaro . Harp City Attorney ATTEST: Date: ,Y,Leilani I. Brown City Clerk rc`wPO e� r Licensee: CITY OF NEWPORT BEACH, A California municipal corporation Date: c�,W-L -D3:2z Dave V iff City Manager Eagle Aerial Photography Inc., a Delaware Corporation d.b.a. Eagle Aerial Imag n Date: BY: G / Wayne T e President Date: Rl/ By: Paul Clark Vice President M Eagle Aerial Imaging Contractor License Grant of Sub -License: By Installing the software and/or accessing the digital aerial photography (the "Licensed Product") on the CD/DVD or derivative product provided to you by the City of Newport Beach ("Licensee") and produced by Eagle Aerial Imaging, the undersigned contractor or consultant (the "Contractor") agrees to accept and abide by the terms and conditions of this sublicense agreement and acknowledges that failure to comply with the terms of this sublicense agreement could lead to liability for Licensee pursuant to the terms of its license agreement with respect to the Licensed Product. The Contractor named below may use the Licensed Product to perform work on behalf of Licensee ONLY in connection with the Project described below and only for the period of time listed below. The contractor shall not use such imagery or derivative thereof for its own account or on behalf of or for the benefit of any entity other than Licensee under any circumstances. Contractor shall have no right to assign, transfer, or sublicense any aspect of the Licensed Product or derivative thereof. Contractor shall abide by the terms of Licensee's License Agreement with Eagle Aerial Imaging for the Licensed Product. At completion of the project, Licensee agrees to return to Licensee the original copy of the Licensed Product and to delete any copies or derivative copies created while performing work under this sublicense, unless keeping for archive purposes on behalf of Licensee. Contractor shall indemnify, defend and hold the Licensee and Eagle Aerial Imaging harmless from and against any liability, claim or damages arising as a result of Contractor's breach of the terms of this sublicense. Licensee Project Manager and/or Department: Project Description: Time Period for Project: Signature Print Name Company Name Company Address Date Eagle Aerial Imaging—Aerial Imagery Products Orange County 3 Inch Pixel Resolution Imagery License Agreement between Eagle Aerial Imaging & City of Newport Beach 1 17952 Skypark Circle 3300 Newport Blvd. �J Suite B P.O. Box 1768 Irvine, CA 92614 Newport Beach, CA 92658 Date of This License Agreement: May 28, 2012 ("Effective Date") THIS AGREEMENT SUPERSEDES AND REPLACES ALL PREVIOUS AGREEMENTS BETWEEN THE PARTIES HERETO WITH RESPECT TO AERIAL IMAGERY CAPTURED DURING 2012 AND ALL YEARS THEREAFTER. ALL DATA DELIVERED TO YOU UNDER THIS AGREEMENT IS COPYRIGHT PROTECTED This License Agreement ("License Agreement") is a legal and binding agreement between The City of Newport Beach, a California municipal corporation ("Licensee") and Eagle Aerial Photography Inc., a Delaware Corporation d.b.a. Eagle Aerial Imaging ("Eagle"). This License applies to the digital aerial photography being delivered to Licensee pursuant to this License Agreement, which consists of vertical ortho-photographs (the "Ortho Imagery") and oblique photographs (the "Oblique Imagery") ( The Ortho Imagery and the Oblique Imagery are sometimes hereinafter collectively referred to as the "Licensed Imagery"). The Licensed Imagery delivered under this License Agreement is licensed by Eagle for use only under the terms and conditions set forth herein. Any additional imagery, data, software or web -based product delivered or made available in any form at any time to Licensee by Eagle shall by subject to the terms of this License Agreement and shall at all times remain the property of Eagle. Accessing the Licensed Imagery or related data provided to you by Eagle indicates that you accept, and agree to, and will abide by the terms and conditions of this License Agreement. A. License Agreement 1. Grant of License (a) Eagle grants Licensee a non-exclusive license to use the Licensed Imagery under the terms set forth herein. Licensee shall have the right to use the Licensed Imagery for internal operations by employees of Licensee only (including emergency response employees of Licensee for dispatch and in -vehicle use) and any contractors who are doing specified work for Licensee and only with respect to such work on the condition that such contractors sign the form of Contractor License attached hereto. Additionally, Licensee shall be permitted, up to 50 times per year, to allow the use of the License Imagery by entities who are developing or constructing real estate project within the City of Newport Beach ("NB Developers") in connection with the development or construction of that project. NB Developers may have access to the Licensed Imagery in the form of prints of any size on any type of paper, or pdf format digital files as long as those files do not contain GIS coordinates. Additionally, with respect to the general public, Licensee shall have the right to transfer or sell to the public hardcopy prints containing the Licensed Imagery on the condition that said hardcopy prints: 1) are printed on regular bond printer paper only (not photo or similar paper); 2) are no larger than 17 inches by 11 inches in size; and 3) contain a readable photo credit on each print in a font of at least 9 points in size which reads "Photo provided by Eagle Aerial Imaging www.eagleaerial.com". Any additional use will be permitted only to the extent and on the terms agreed, in writing, in advance, by Eagle in its sole and absolute discretion (the above uses are hereinafter collectively referred to as the "Permitted Use"). Except for the Permitted Use, Licensee shall have no right to assign, transfer, share, sublicense, sell, lend or otherwise use, any aspect of the Licensed Imagery or any products derived from the Licensed Imagery, such as prints, digital files or the like ("Derivative Products"), except for the Permitted Use. Eagle shall have the right to audit Licensee's use of the Licensed Imagery by direct or electronic means. Licensee shall fully reimburse and indemnify, defend and hold harmless Eagle for any loss, liability, claim or damage to its economic interests or intellectual property rights arising from any violation of the terms of this License Agreement. The terms of the preceding sentence shall survive the termination of this License Agreement. (b) Licensee may display the Ortho Imagery that was photographed in 2010 which was previously delivered to Licensee by Eagle under a prior contract on its publically viewable website at any time following delivery by Eagle of the Ortho Imagery that will be photographed in 2012 AND the payment by Licensee of the invoice applicable to such 2012 imagery. In each subsequent year of this License Agreement, Licensee may display Ortho Imagery that was captured approximately two years prior to the most recent delivery of Ortho Imagery under this License Agreement. Licensee may display the Oblique Imagery delivered to Licensee under this License Agreement on its publically viewable website at any time. If Oblique Imagery is obtained by Licensee from Eagle in later years under a separate agreement, then Licensee shall display on its publically viewable website the newer of: a) the oldest Oblique Imagery received by Eagle in its possession or b) Oblique Imagery that is at least two years past its date of capture. No Licensed Imagery so displayed shall be downloadable by the public. It shall be view only. Licensee shall provide a link on its website to Eagle's website during such time as the such imagery is displayed on Licensee's website, with such link located immediately below the image, if that is reasonably feasible. 2. Product Specification The Licensed Imagery will be delivered on CD/DVD's, hard drives or the like. The Licensed Imagery shall consist of: (a) The Ortho Imagery. Three Inch pixel resolution color digital aerial imagery of the approximately 105 square mile coverage area shown on the exhibit attached hereto (or if no exhibit is attached, the coverage will be the same as that which was delivered to Licensee in 2011) (the "Coverage Area"). The Licensed Imagery shall have a horizontal accuracy conforming to NMAS of 1"=1 00', for a horizontal accuracy of plus or minus one meter over 90% of the coverage area provided. The imagery will be delivered in ecw format. Eagle will process and deliver the imagery in MrSid to Licensee's grid as directed by Licensee for an additional charge of $550 per year. (b) The Oblique Imagery. Three Inch Pixel resolution color oblique imagery using the existing GeoVista protocol and software over a coverage area consisting of approximately 55 square miles, as previously received by the Newport Beach Police Department from Eagle Aerial. Licensee may also purchase from Eagle the right to use GeoVista software for use with the Oblique Imagery, at the price set forth below. 3. Product Delivery. Eagle shall make three deliveries of the Ortho Imagery over a three year period under the follow schedule during the term of this License Agreement: Delivery Date (approximate) Third Quarter 2012 Second or Third Quarter 2013 Second or Third Quarter 2014 Imagery Date Flown (approximate) First or Second Quarter 2012 First or Second Quarter 2013 First or Second Quarter 2014 Eagle shall deliver the Oblique Imagery as soon as reasonably possible following its capture, which is currently scheduled to occur during late 2012. This one delivery shall be the only delivery of Oblique Imagery during the term of this License Agreement. 4. Multi -Year Agreement; Payment Terms; Right to Match Future Competing Offers. (a) Total Compensation. The total not to exceed compensation over the term of this License Agreement, including all taxes, shipping fees or costs for the Licensed Imagery shall not exceed Sixty Seven Thousand Eight Hundred Seventy Five Dollars and 00/100 ($67,875.00) payable in accordance with the following schedule below. (b) Ortho -Imagery. Upon execution of this License Agreement, Licensee shall pay to Eagle Eighteen Thousand Five Hundred Twenty Dollars and 00/100 ($18,520.00) plus One Thousand Four Hundred Thirty Five Dollars and 00/100 ($1,435.00) sales tax (at 7.75%) plus Fifty Dollars and 00/100 ($50.00) shipping plus Five Hundred Fifty Dollars and 00/100 ($550.00) for customized MrSid processing for a total not to exceed Twenty Thousand Five Hundred and Five Dollars and 00/100 ($20,505.00) for the first year of the License Agreement. Following first year purchase, an annual invoice in the amount of Twenty Thousand Five Hundred and Five Dollars and 00/100 ($20,505.00) is due in each of the remaining two (2) years of the License Agreement on the anniversary of the Effective Date first listed above. For a total not to exceed amount of Sixty One Thousand Five Hundred Fifteen Dollars and 00/100 ($61,515.00) for all Ortho -Imagery costs for the term of this License Agreement. (c) Obligue Imagery. Upon delivery to Licensee of the Oblique Imagery, Licensee shall pay to Eagle Four Thousand Dollars and 00/100 ($4000.00) plus Three Hundred Ten Dollars and 00/100 ($310.00) sales tax (at 7.75%) plus Fifty Dollars and 00/100 ($50.00) shipping for a total of Four Thousand Three Hundred Sixty Dollars and 00/100 ($4360.00) for the Oblique Imagery for the term of this License Agreement. Licensee will also purchase the GeoVista software for use with the Oblique Imagery for Two Thousand Dollars and 00/100 ($2000.00) plus One Hundred and Fifty Five Dollars and 00/100 ($155.00) of sales tax (at 7.75%), for a 2 total not to exceed amount of Six Thousand Three Hundred Sixty Dollars and 00/100 ($6,360.00) for all Oblique Imagery costs for the term of this License Agreement. (d) Early Termination Fee. Licensee acknowledges that it has received a discounted price for the Ortho Imagery based upon Licensee's agreement to purchase the Ortho Imagery for multiple years. Therefore, if Licensee desires to terminate this License Agreement after payment and delivery for the initial year of Ortho Imagery, Licensee shall immediately pay Eagle an early termination fee of Eight Thousand Three Hundred Thirty Four Dollars and 00/100 ($8,334.00). If Licensee desires to terminate this License Agreement after payment and delivery for the initial year and the second year of Ortho Imagery, Licensee shall immediately pay Eagle an early termination fee of Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00). Upon any early termination election by Licensee, Licensee will be permitted to continue to use the Oblique Imagery for a period of up to one (1) year following its delivery by Eagle to Licensee in the event such termination occurs prior to the expiration of that one year period. 5. Termination or Expiration. Without prejudice to any other rights, Eagle may terminate this License if Licensee fails to comply with the terms and conditions of this License Agreement. In such event, all rights granted to Licensee hereunder shall automatically terminate. Upon termination of this License Agreement, Licensee shall immediately cease any and all further use of the Licensed Imagery and shall promptly purge all copies thereof from all computers and electronic devices on which any of it has been stored or made available at the time. In the event of early termination by Eagle, Eagle shall not be entitled to any early termination fees from Licensee. 6. Copyright. Purchase of this product does not transfer any right, title, or interest in Eagle, the Licensed Imagery or the Derivative Products, except as specifically set forth in this License Agreement. This is a formal notice that the Licensed Imagery is protected by the Untied States copyright laws and international treaty provisions. The Licensed Imagery is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subjected to restricted rights applicable to commercial computer software (under DFARS 52.227-7013). 7. Exportation. Licensee shall be responsible for obtaining all required government approvals, permits and licenses for the exportation and importation of the Licensed Imagery, and for payment of all applicable taxes and related charges, including without limitation payment of all customs duties, excise taxes and brokerage fees. Licensee shall not export the Licensed Imagery to any prohibited country, shall not release the Licensed Imagery to any prohibited foreign national, and shall otherwise comply with all applicable requirements of U.S. export control laws during and after the term of this Agreement. 8. General. This License Agreement shall be governed by the laws of the State of California. No failure or delay by either party in exercising any right, power or remedy with respect to any of the provisions of this License Agreement shall operate as a waiver thereof. This Agreement sets forth the entire agreement between the parties. There are no other understandings, terms or agreements expressed or implied, oral or written. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing, signed by all parties. If any dispute should arise with respect to the subject matter of this License Agreement, the prevailing party shall not be entitled to recover from the other parry any attorneys' fees or costs incurred in connection with such dispute, whether or not such dispute shall be brought to final judgment. 9. Records. Eagle shall keep records and invoices in connection with the Services to be performed under this Agreement. Eagle shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to Licensee, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Eagle under this Agreement. All such records and invoices shall be clearly identifiable. Eagle shall allow a representative of Licensee to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Eagle shall allow inspection of all Licensed Imagery, work, data, Documents, proceedings and activities related to the License Agreement for a period of three (3) years from the date of final payment to Eagle under this License Agreement. 10. Withholdings. Licensee may withhold payment to Eagle of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Eagle shall not discontinue Licensee's ability to use the Licensed Imagery as a result of such withholding. Eagle shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Eagle shall be entitled to receive interest on any withheld sums at the rate of return that Licensee earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 3 11. Conflicts of Interest. (a) The Eagle or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Licensed Imagery provided under this License Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. (b) If subject to the Act, Eagle shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this License Agreement by Licensee without the obligation to pay any early termination fee. Eagle shall indemnify and hold harmless Licensee for any and all claims for damages resulting from Eagle's violation of this Section. 12. Project Manager. (a) Eagle shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to Licensee at all reasonable times during the License Agreement term. Eagle has designated Wayne Tate to be its Project Manager. Eagle shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of Licensee. Licensee's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. (b) Eagle, at the sole discretion of Licensee, shall remove from the Project any of its personnel assigned to the performance of services upon written request of Licensee. Eagle warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 13. Administration. This Agreement will be administered by the City Manager's Office. Rob Houston, Assistant to the City Manager or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 14. Notices. (a) All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Eagle to Licensee shall be addressed to Licensee at: Attn: Rob Houston, Assistant to the City Manager City Managers Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644-3033 (b) All notices, demands, requests or approvals from Licensee to Eagle shall be addressed to Eagle at: Attn: Wayne Tate Eagle Imagery 17952 Skypark Circle, Suite B Irvine, CA 92614 Phone: (714)754-7670 15. Standard Provisions. (a) Compliance with all Laws. Eagle shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Eagle shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and Licensee. (b) Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 4 (c) Integrated Contract. This License Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. (d) Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this License Agreement and any other attachments attached hereto, the terms of this License Agreement shall govern. (e) Interpretation. The terms of this License Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. (f) Amendments. This License Agreement may be modified or amended only by a written document executed by both Eagle and Licensee and approved as to form by the City Attorney. (g) Severability. If any term or portion of this License Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. (h) Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. (i) Equal Opportunity Employment. Eagle represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. (j) Countemarts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. B. LIMITED WARRANTY 1. DIGITAL AERIAL PHOTOGRAPHY Eagle makes no warranty as to the accuracy of the digital aerial photography or any other data provided or sold. The customer is expected to determine (with sample data) if the accuracy level of the digital aerial photography will meet their specific needs. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EAGLE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. C. LIMITED LIABILITY STATEMENT IN NO EVENT SHALL EAGLE, OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OR THE USE OF OR INABILITY TO USE THE EAGLE PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO CASE SHALL THE LIABILITY OF EAGLE, OR ITS SUPPLIERS, OR DISTRIBUTORS EXCEED THE AMOUNT RECEIVED BY EAGLE FOR THE PRODUCT. 5 IN WITNESS WHEREOF the parties hereto have executed this License and Renewal Agreement as of the dates written below APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: ' �—/ Aaro . Harp City Attorney ATTEST: Date: By: Leilan I. Brown City Clerk Licensee: CITY OF NEWPORT BEACH, A California municipal corporation Date: 11yx') By: Dave Kl City Manager Eagle Aerial Photography Inc., a Delaware Corporation d.b.a. Eagle Aerial Imaging Date: 7—�z��= e -- By: Name: Title:f ell Date: i Name: V Title: \J -e, -4- A Eagle Aerial Imaging Contractor License Grant of Sub -License: By Installing the software and/or accessing the digital aerial photography (the "Licensed Product") on the CD/DVD or derivative product provided to you by the City of Newport Beach ("Licensee") and produced by Eagle Aerial Imaging, the undersigned contractor or consultant (the "Contractor") agrees to accept and abide by the terms and conditions of this sublicense agreement and acknowledges that failure to comply with the terms of this sublicense agreement could lead to liability for Licensee pursuant to the terms of its license agreement with respect to the Licensed Product. The Contractor named below may use the Licensed Product to perform work on behalf of Licensee ONLY in connection with the Project described below and only for the period of time listed below. The contractor shall not use such imagery or derivative thereof for its own account or on behalf of or for the benefit of any entity other than Licensee under any circumstances. Contractor shall have no right to assign, transfer, or sublicense any aspect of the Licensed Product or derivative thereof. Contractor shall abide by the terms of Licensee's License Agreement with Eagle Aerial Imaging for the Licensed Product. At completion of the project, Licensee agrees to return to Licensee the original copy of the Licensed Product and to delete any copies or derivative copies created while performing work under this sublicense, unless keeping for archive purposes on behalf of Licensee. Contractor shall indemnify, defend and hold the Licensee and Eagle Aerial Imaging harmless from and against any liability, claim or damages arising as a result of Contractor's breach of the terms of this sublicense. Licensee Project Manager and/or Department: Project Description: Time Period for Project: Signature Date Print Name Company Name Company Address - Eagle Aerial Imaging—Aerial Imagery Products Multi -Year Maintenance and License Agreement between Eagle Aerial Imaging & City of Newport Beach F� 3198 K Airport Loop Dr. 870 Santa Barbara Dr. Costa Mesa, CA 92626 Newport Beach, CA 92660 Term of Maintenance and License Agreement: 3 years -6" Pixel Resolution Imagery Date of This Agreement: August 5, 2008 Annual Fees Payable to Eagle: See Section 2 below Type of License (Enterprise): See Section 1 below ALL PHOTOGRAPHY, DATA AND SOFTWARE DELIVERED TO YOU UNDER THIS AGREEMENT IS COPYRIGHT PROTECTED License and Renewal Agreement for digital aerial photography, data and software This License and Renewal Agreement ("License Agreement") is a legal and binding agreement between you, either an individual or a single entity, ("Licensee") and Eagle Aerial Photography Inc., a Delaware Corporation d.b.a. Eagle Aerial Imaging ("Eagle"). The software named Aerials On CD/DVD Software may be used to view and manipulate the aerial photography on this CD/DVD only. The digital aerial photography contained on the CD/DVD is licensed by Eagle for use only under the terms and conditions set forth herein. Any imagery, data or software delivered or made available in any form at any time to Licensee by Eagle shall by subject to the terms of this License Agreement and shall at all times remain the property of Eagle. Installing any software and/or accessing the digital aerial photography or related data provided to you by Eagle via CD/DVD or any other method indicates that you accept, and agree to, and will abide by the terms and conditions of this License Agreement. License Agreement- 6" Pixel Resolution -Internal Use -Police Dept. Only 1. Grant of License Eagle grants Licensee the non-exclusive right to use one copy of Aerials On CD/DVD Software and the Digital Aerial photos (collectively "Aerials On CD/DVD" or "Licensed Product") during the term of this License Agreement under the terms of the license specified in section 2 below. Licensee shall have the right to use the Licensed Product for internal operations by employees of Licensee only, throughout Licensee's enterprise, for dispatch or in -vehicle use. Any additional use will be permitted only to the extent and on the terms agreed, in writing, in advance, by Eagle in its sole and absolute discretion (the "Permitted Use"). Except for the Permitted Use, Licensee shall have no right to assign, transfer, share, sublicense, sell, lend or otherwise use beyond the scope of the type of license listed above, any aspect of the Licensed Product or any products derived from the Licensed Product, such as prints, digital files or the like ("Derivative Products"), except as and to the extent and on the terms agreed, in writing, in advance, by Eagle in its sole and absolute discretion. The restrictions set forth in this section shall apply as long as the Licensed Product or and Derivative Products are in the possession of Licensee. Eagle shall have the right to audit Licensee's use of the Licensed Product by direct or electronic means, and Licensee shall fully reimburse and indemnify Eagle for any loss or damage to its economic interests or intellectual property rights arising from any violation of the prohibition contained in the preceding sentence. 2. Product Specification; Multi -Year Agreement The Licensed Imagery shall consist of Six Inch pixel resolution color digital aerial imagery of the coverage area shown on the exhibit attached hereto (or if no exhibit is attached and if Licensee is a governmental or quasi -governmental entity, a coverage area extending to Licensee's jurisdictional boundary). The Licensed Imagery shall have a horizontal accuracy conforming to WAS of 1"=100', for a horizontal accuracy of plus or minus one meter over 90% of the coverage area provided. The Licensed Product will on CD/DVD's, hard drives or the like. Eagle shall provide, as soon as available, updated imagery (approximately annually) so that Licensee receives current and updated imagery for a number of years equal to the number of years listed above as the term of the License Agreement (In this case, imagery for 3 years). If software updates are created, these will be delivered to Licensee as they become available. This license agreement will be in place for the number of years listed in the term of the license listed above and beginning on the date listed above. Imagery will be delivered in ECW format, Lat/Long decimal degrees. Licensee shall pay to Eagle $10,000 + 775 tax (at 7.75%) and L35 shipping, for a total of 119,810 for the first year of the Agreement within 30 days of delivery and approval of the invoice. Following first year purchase, an annual invoice in the amount of: $10.000+ tax + shipping is due in each of the remaining years of the contract within 30 days of delivery and approval of the Invoice. If the Licensee should want to terminate this contract before the length of the term expires, Licensee will pay 50% of the balance of the amount still unpaid under this License Agreement within 30 days. 3. Copyright Purchase of this product does not transfer any right, title, or interest in Eagle, the Licensed Product or the Derivative Products, except as specifically set forth in this License Agreement. This is a formal notice that the digital aerial photography on this CD/DVD is protected by the Untied States copyright laws and international treaty provisions. You may either (1) make one copy of "Aerials On CD/DVD" solely for backup or archival purposes provided that such copy bears the copyright notices contained in the original, or (2) transfer "Aerials On CD/DVD" to a single hard disk provided you keep the original solely for backup or archival purposes. You may not copy any written materials accompanying "Aerials On CD/DVD." Except as expressly provided elsewhere in this License Agreement, (a) The original Photo CD/DVD packaging together with an original copy of this Agreement, must be retained by you as proof of license. (b) You may not loan, rent, lease, or sublicense the CD/DVD software and/or the compressed digital aerial photography or any portion thereof. (c) You may not sell, trade, bargain, or convey any product, print, computer file, or any data whatsoever created, exported, copied or made using the "Aerials On CD/DVD", the compressed digital aerial photography and/or the Aerials On CD/DVD Software. (d) You may not reverse engineer, decompile, disassemble, or create derivative works from the compressed digital aerial photography and or the Aerials On CD/DVD Software, or any portion thereof. 4. 'Termination Without prejudice to any other rights, Eagle may terminate this License if Licensee fails to comply with the terms and conditions of this License Agreement. In such event, all rights granted to Licensee hereunder shall automatically terminate, Licensee shall destroy all copies of the "Aerials On CD/DVD" and all of its component parts, and Eagle shall have no further obligations hereunder. Licensee shall indemnify, defend and hold Eagle harmless from any loss, damages, claims or liabilities which arise as a result of the breach of any of the terms of this License Agreement. 5. U.S. Government Restricted Rights The "Aerials On CD/DVD" product with compressed digital aerial photography and associated documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subjected to restricted rights applicable to commercial computer software (under DFARS 52.227-7013). 6. General This License Agreement shall be governed by the laws of the State of California. No failure or delay by either party in exercising any right, power or remedy with respect to any of the provisions of this License Agreement shall operate as a waiver thereof. This Agreement sets forth the entire agreement between the parties. There are no other understandings, terms or agreements expressed or implied, oral or written. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing, signed by all parties. LIMITED WARRANTY SOFTWARE In the event Licensee has acquired the Aerials on CD/DVD Software, Eagle warrants, throughout the term of the License Agreement, that such software will "Function" (perform substantially the functions described in the documentation provided by Eagle), provided that it is used, unmodified, on the computer hardware and with the operating system for which it was designed. Eagle will provide reasonable technical support as necessary with respect to the software and functionality of the Licensed Product. In the event that the "Aerials On CD/DVD" product fails to so function during the warranty period, Eagle and Licensee shall work in good faith to correct the software problem. In the event the problem cannot be resolved, your sole remedy shall be to return the defective product to Eagle for replacement. If Eagle is unable to replace the "Aerials On CD/DVD" product with a version which will Function within a reasonable period of time, Eagle will, upon return of the CD/DVD and all related documentation, together with a certification signed by you stating that you will not use any product, print, computer file, or any data whatsoever created, exported, copied or made using the CD/DVD, the compressed digital photography and/or the Aerials On CD/DVD Software, refund a prorated portion of the purchase price received by Eagle during that year. The portion of the purchase price for that year retained by Eagle will be equal to the number of days that the Licensed Product functioned properly during that year divided by 365. Eagle shall have no responsibility to replace "Aerials On CD/DVD" or refund the purchase price due to damage by accident, loss of source data, abuse, or misapplication. DIGITAL AERIAL PHOTOGRAPHY Eagle makes no warranty as to the accuracy of the digital aerial photography or any other data provided or sold as to any specific location. The customer acknowledges that the accuracy of the Licensed Product is in compliance with NMAS over a portion, but not all, of the coverage area, as per industry custom. The customer is expected to determine (with sample data) if the accuracy level of the digital aerial photography will meet their specific needs. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EAGLE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. LIMITED LIABILITY STATEMENT IN NO EVENT SHALL EAGLE, OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNINARY LOSS) ARISING OUT OR THE USE OF OR INABILITY TO USE THE LICENSED PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO CASE SHALL THE LIABILITY OF EAGLE, OR ITS SUPPLIERS, OR DISTRIBUTORS EXCEED THE AMOUNT RECEIVED BY EAGLE FOR THE PRODUCT. IN WITNESS WHEREOF the parties hereto have executed this License and Renewal Agreement as of the date first hereinabove written. APPROVED AS TO FORM: "V� V�— . Harp, Assistant City Attorney for the City of Newport Beach ATTEST: , YTKV� By: Leilani Brown, City Clerk Eagle Aerial Imaging 714.754.7670 CITY OF NEWPORT BEACH A Municipal Corporation By: 2KIIn4 Homer Bludau City Manager for the City of Newport Beach EAGLE AERIAL IMAGING: By: _ Title: (Corporate Officer) Print Name: By: (Financial Officer) Title: Print Name: PHO;OGRAPHY warranty as to fledges that the The customer i neeas. the accuracy of the digital aerial photography or any other data provided or sold as to any specific location. The accuracy of the Licensed Product is in compliance with NMAS over a portion, but not all, of the coverage area, as per s expected to determine (with sample data) if the accuracy level of the digital aerial photography will meet their specific THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLILU, INULUIJIlvv THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EAGLE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. LIMITED LIABILITY STATEMENT IN NO EVENT SHALL EAGLE, OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNINARY LOSS) ARISING OUT OR THE USE OF OR INABILITY TO USE THE LICENSED PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME OF EAGLE, OR ITS SUPPLIERS, ERSS, OR DISTRIBUTORS ORS EXCE D THE AMOUNT I REON CE VED BY EAGLE FOR Y NOT APPLY TO OU. IN NO CASE SHALL THE HEP PRODUCT. L IN WITNESS WHEREOF the parties hereto have executed this License and Renewal Agreement as of the date first hereinabove written. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk Eagle Aerial Imaging 714.754.7670 CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau City Manager for the City of Newport Beach EAGLE AERIAL IMAGIN ' By: ` 1 1(Corporate Officer) Title: \/ P Print Name' 1 .4 f_ ( \ 4� By: (Fin ialofficer) Title: Print Name: EAGLE AERIAL [MAGI V ales Order 17952 SKY PARK CIRCLE, SUITE B IRVINE, CA 92614 Customer No.: NEW700 Customer Contact Name: John Veale Order No.: 15788 Customer Contact Phone: (949) 644-3186 Bill To: City of Newport Beach Police Dept. Attn. Lisa Newman 870 Santa Barbara Dr Newport Beach, CA 92658-7000 Ship To: Geo Spatial Technologies Attn: Peter Rosales 3130 S. Harbor Blvd, Suite 430 Santa Ana, CA 92704 Date Ship Via F.O.B. Terms 08/28/08 CA Overnight Origin Net 30 Purchase Order Number Required Date Sales Person Our Order Number 09/12/08 Bob Groos 15788 1 1 D-ORTHO 6" O.C. '08- 6" pixel full color aerial photomap City of Newport Beach Police Dept. site license -no user limit - PD internal use only File Format: ECW Projection: LAT/LONG LAT/LONG coordinates= Lat: 33.57 to 33.70 Long: -117.96 to -117.81 same extents as order #14858 from 8/2006 1 st yr. of 3 year agreement Order total 10000.00 0.00 Thank You Note: Our new address is 17952 Sky Park Circle, Suite B, Irvine, CA 92614 Tel: 714-754-7670 WW