2025-06-05 - PC 1424 -MARICOPA-COUNTY-BENTLEY-EPS-365-AMENDMENT-NO-1.PDF
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MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 1 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. Amendment No. 1 to Bentley Enterprise 365 Public Sector Program Agreement No. (CLA No. 001036938118) This Amendment No. 1 (the “Amendment”) is hereby made and entered into by and between Maricopa County, with principal offices at 301 W. Jefferson St., Ste. 700 Phoenix, AZ 85003 (“County”), for and on behalf of the Maricopa County Department of Transportation (“Subscriber”); and Bentley Systems, Incorporated (“Bentley”), effective as of the signature date of the last-to-sign party below (the “Amendment Effective Date”). WHEREAS, Bentley and County wish to amend the Bentley Enterprise 365 Public Sector Program Agreement No. (CLA Number 0010369381) the terms and conditions of which can be found at https://www.bentley.com/legal/enterprise-365-public-sector-eps/ (the “Original Agreement”). NOW THEREFORE, the parties hereby mutually agree as follows: 1. Definitions. The definitions of certain terms used in the Amendment with initial capitalized letters, if not defined herein, shall have the definitions set forth in the Original Agreement. 1.1. The opening clause of Section 1 of the Bentley General Terms and Conditions of the Original Agreement (the “Bentley General Terms”), providing that "The capitalized words, terms and phrases in these Terms shall have the meanings set forth below:", is hereby deleted in its entirety and replaced with the following new clause: “The capitalized words, terms and phrases in the Agreement shall have the meanings set forth below:" 1.2. “Agreement” means the Original Agreement as amended by this Amendment. 1.3. Section 1.3 of the Bentley General Terms is hereby deleted in its entirety and replaced with the following: “‘1.3 Bentley Contract Entity’ means the applicable Bentley entity set out in Article 7 of these General Terms & Conditions for the license of Bentley Products and services.” 1.4. Section 1.4. of the Bentley General Terms is hereby deleted and replaced with the following: “‘1.4 Bentley Products’ or ‘Products’ means the software products, data and other materials, previously or hereafter (including software products, data and other materials acquired by Bentley during the term of an Agreement) Distributed by Bentley through delivery mechanisms determined in Bentley’s sole discretion that Bentley makes available to Subscriber typically in Object Code form only, for licensing hereunder, including Major Updates and Minor Updates.” Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 2 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. 1.5. Section 1.30 of the Bentley General Terms is hereby deleted in its entirety and replaced with the following: “1.30. “Use” or “Usage” (whether or not capitalized) means utilization of the Product by an individual.” 2. Enterprise 365 Public Sector Program Agreement Modifications. 2.1 Confidentiality. Section 3.7.5 of the Bentley General Terms of the Original Agreement is hereby deleted in its entirety and replaced with the following: “3.7.5 Confidentiality. Unless otherwise required by applicable law or by a court order from a court with competent jurisdiction, upon the termination or non- renewal of the Agreement, Subscriber shall return to Bentley or, if so requested, destroy all Proprietary Information in its possession.” 2.2 Indemnification. Section 5.7.1 of the Bentley General Terms and Conditions of the Original Agreement (the “Bentley General Terms”) is hereby deleted in its entirety and replaced with the following new section: “5.7.1 Indemnification. Bentley shall pay any damages finally awarded against Subscriber based on a claim against Subscriber that a Product which is developed and owned by Bentley infringes a third party’s copyright under the laws of a Berne Convention signatory country, or results in a misappropriation of a third party’s trade secret, in the Country where Subscriber has been authorized to place the Product subject to such claim into Production Use, if Subscriber provides to Bentley: (a) prompt written notice of any such claim, (b) all available information and assistance, and (c) the opportunity to exercise sole control of the defense and settlement, at Bentley’s own cost, of any such claim.” 2.3 Export Control. The last sentence of Section 6 of the Bentley General Terms is hereby deleted and replaced with the following: “Subscriber shall remain solely responsible for any breach of its obligations pursuant to this Section 6.” 2.4 Governing Law and Venue. Notwithstanding anything to the contrary in Section 7, the parties hereby agree that (1) the Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the State of Arizona, without regard to its conflict of laws principles, and the parties irrevocably consent and agree that any action, suit, or proceeding arising from or relating to this Agreement shall be exclusively brought and maintained in the state or federal courts situated in Maricopa County, Arizona, and hereby waive any objections based on improper venue, inconvenient forum, or lack of jurisdiction; and (2) the arbitration provisions of Section 7 are hereby deleted. Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 3 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. 2.5 Entire Agreement Clause Amendment. Section 8.2 of the Bentley General Terms is hereby deleted in its entirety and replaced with the following: “8.2. Entire Agreement. The Agreement, together with the Offering Document and any amendments signed in accordance with Section 8.3 of these General Terms & Conditions, if any, incorporates the entire agreement of the parties and supersedes and merges all prior oral and written agreements, past practices, discussions and understandings between the parties with respect to the subject matter hereof. The terms and conditions of the Agreement and of the applicable Bentley confirmation shall apply to each order accepted or shipped by Bentley hereunder. Any additional or different terms or conditions appearing on a purchase order issued by Subscriber hereunder, even if Bentley acknowledges such terms and conditions, shall not be binding on the parties unless both parties expressly agree in a separate writing as provided under these General Terms & Conditions.” 2.6 Permitted Use Clause Amendment. Section 4 of the Cloud Offering Terms of the Original Agreement is hereby amended by deleting the first sentence of such section and replacing it with the following: “Bentley will grant Subscriber a non-exclusive, non- transferrable, non-assignable, revocable, limited license to use and access purchased Bentley Cloud Offerings (subject to the terms of any applicable Offering Document, these Cloud Offering Terms and any terms of use (“Terms of Service”) presented upon access) solely for Production Use (the “Permitted Use”).” 2.7 The second sentence of Section 4.5 of the Cloud Offering Terms of the Original Agreement is hereby deleted and replaced with the following: “Bentley is not responsible for any activity using Subscriber’s accounts, whether or not Subscriber authorized that activity.” 2.8 The second sentence of Section 4.6 of the Cloud Offering Terms of the Original Agreement is hereby deleted and replaced with the following: “Bentley shall have no liability resulting from any non-compliance with the terms of this Section 4 by Users, including Subscriber employees and External Users, and Subscriber shall remain responsible for any non-compliance with the terms of this Section 4 by Users, including Subscriber employees and External Users.” 2.9 The first sentence of Section 11.1 of the EPS-365 Program Terms of the Original Agreement is hereby deleted and replaced with the following: “Subscriber’s EPS-365 Program subscription shall begin on the Start Date and shall continue until the end of the Subscription Term, unless either Bentley or Subscriber terminates the EPS-365 Program subscription for convenience at any time with ninety (90) days prior written notice (the ‘Termination Notice’) to the other party.” 3. Maricopa County Terms. The provisions set forth at “Exhibit A – Maricopa County Provisions” of this Amendment are hereby added as Exhibit A to the Agreement. Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 4 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. 4.Confidentiality. This Amendment and all terms and conditions set forth herein are Bentley Proprietary Information, and, unless otherwise required by applicable law or by a court order from a court with competent jurisdiction, shall be held in strict confidence. 5.Legal Effect. The modifications set forth in this Amendment are effective as of the Amendment Effective Date. Except as expressly amended or modified by the terms of this Amendment, all other terms of the Agreement shall remain unchanged and in full force and effect. In the event of a conflict between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. For the avoidance of doubt, any and all products and services provided under the Agreement are intended solely for use by Subscriber. The County, as the contracting party, agrees to remain responsible for Subscriber’s compliance with the Agreement. 6. Headings. The headings used in this Amendment are for convenience of reference only shall not be used to define the meaning of any provision. [Signature page to follow] Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 5 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. IN WITNESS WHEREOF, the parties represent and warrant that this Amendment is executed by duly authorized representatives of each party as set forth below on the date first stated above. MARICOPA COUNTY BENTLEY SYSTEMS, INCORPORATED By: _______________________________ By: __________________________ Print Name: ________________________ Print Name: _______________________ Print Title: Chairman, Board of Supervisors Print Title: _________________________ Date: _____________________________ Date: __________________________ Attested: _______________________________________________ Clerk of the Board Date: Approved as to Form: __________________________________________________ Deputy County Attorney Date: Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 Ken MacArthur RE, Vice President Americas 6/5/2025 6/5/2025 Nikolaus Decker MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 6 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. EXHIBIT A – MARICOPA COUNTY PROVISIONS 1. FORCED LABOR 1. By submitting a bid for this solicitation and/or entering into a contract as a result of this solicitation, contractor agrees to comply with all applicable portions of Arizona Revised Statutes Section 35-394. Contracting; procurement; prohibition; written certification; remedy; termination; exception; definitions. 2. Contractor certifies that it does not currently, and agrees for the duration of the contract, that it will not use: 1. The forced labor of ethnic Uyghurs in the People’s Republic of China. 2. Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 3. Any contractors, subcontractors or suppliers that use the forced labor or any good or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. 3. If contractor becomes aware during the term of the agreement that contractor is not in compliance with this paragraph, the contractor shall notify the County within five business days after becoming aware of the noncompliance. If the contractor fails to provide a written certification to the County that the contractor has remedied the noncompliance within 180 days after notifying the County of its noncompliance, then the agreement terminates, except that if the agreement termination date occurs before the end of the 180 days period, the agreement terminates on the agreement termination date. 2. STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST Notice is given that, pursuant to A.R.S. § 38-511, the County may cancel any contract without penalty or further obligation within three years after execution of the contract, if any person significantly involved in initiating, negotiating, securing, drafting, or creating the contract on behalf of the County is at any time, while the contract or any extension of the contract is in effect, an employee or agent of any other party to the contract in any capacity or consultant to any other party of the contract with respect to the subject matter of the contract. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting, or creating the contract on behalf of the County from any other party to the contract arising as the result of the contract. 3. WRITTEN CERTIFICATION PURSUANT to A.R.S. § 35-393.01 If vendor engages in for-profit activity and has 10 or more employees, and if this agreement has a value of $100,000 or more, vendor certifies it is not currently engaged in, and agrees for the duration of this agreement to not engage in, a boycott of goods or services from Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842. Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412 MARICOPA COUNTY AMENDMENT NO. 1 TO ENTERPRISE 365 PUBLIC SECTOR PROGRAM AGREEMENT Maricopa County Page 7 of 7 Amendment No.1 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley’s express prior written consent. 4. VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL IMMIGRATION LAWS AND REGULATIONS 1. By entering into the contract, the Contractor warrants compliance with the Immigration and Nationality Act (INA using E-Verify) and all other Federal immigration laws and regulations related to the immigration status of its employees and A.R.S. § 23-214(A). The Contractor shall obtain statements from its subcontractors certifying compliance and shall furnish the statements to the procurement officer upon request. These warranties shall remain in effect through the term of the contract. The Contractor and its subcontractors shall also maintain Employment Eligibility Verification forms (I-9) as required by the Immigration Reform and Control Act of 1986, as amended from time to time, for all employees performing work under the contract and verify employee compliance using the E-Verify system and shall keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer. I-9 forms are available for download at www.uscis.gov. 2. The County retains the legal right to inspect documents of Contractor and subcontractor employees performing work under this contract to verify compliance with paragraph 4.1 of this section. Contractor and subcontractor shall be given reasonable notice of the County’s intent to inspect and shall make the documents available at the time and date specified. Should the County suspect or find that the Contractor or any of its subcontractors are not in compliance, the County will consider this a material breach of the contract and may pursue any and all remedies allowed by law, including, but not limited to: suspension of work, termination of the contract for default, and suspension and/or debarment of the Contractor. All costs necessary to verify compliance are the responsibility of the Contractor. 5. NON-DISCRIMINATION Contractor agrees to comply with all provisions and requirements of Arizona Executive Order 200909, including flow down of all provisions and requirements to any subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full herein. During the performance of this contract, contractor shall not discriminate against any employee, client, or any other individual in any way because of that person’s age, race, creed, color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09 can be viewed at https://apps.azsos.gov/public_services/register/2009/46/governor.pdf Docusign Envelope ID: D9C831BD-616F-44E3-9B24-47FFC680C412