Standard Agreement Page 7 of 12 City of National City and Revised February 2023 National City Chamer of Commerce D. Workers’ Compensation Insurance in an amount sufficient to meet statutory requirements cove ring all of CONSULTANT’S employ ees and employers’ liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement.
If CONSULTANT has no employees subject to the California Workers’ Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY.
E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY ’s Risk Manager, at the address listed in subsection G below, of cancellation or material change.
F. If required insurance coverage is provided on a “claims made” rather than “occurrence” form, the CONSULTANT shall maintain such insurance coverage for three ye ars after expiration of the term (an d any extensions) of this Agree ment. In addition, the “retro” date must be on or before the date of this Agreement.
G. The Certificate Holder for all policies of insurance required by this Section shall be:
City of National City
c/o Risk Manager
1243 National City Boulevard
National City, CA 91950-4397
H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder’s alphabetic and financial size category rating of not less than A: VII according to the current Best’s Key Rating Guide, or a company of equal financial stability that is approved by the CITY’S Risk Manager. In the event coverage is provided by non- admitted “surplus lines” carriers, they must be included on the most recent List of Ap proved Surplus Line Insurers (“LASLI”) and otherwise meet rating requirements.
I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY’S Risk Manager. If the CONSULTANT does not keep all insur ance policies required by this Section 18 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein.
J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the in surance requirements of this Section 18, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Standard Agreement Page 8 of 12 City of National City and Revised February 2023 National City Chamer of Commerce K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
19. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out-of-court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys’ fees.
For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney’s fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney’s fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney’s fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney’s fees incurred by the prevailing party.
20. TERMINATION.
A. This Agreement may be terminated with or without cause by the CITY.
Termination without cause shall be effective only upon 60 -day’s written notice to the CONSULTANT. During said 60 -day period the CONSULTANT shall perform all service s in accordance with this Agreement.
B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY.
C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein.
D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT’S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 7.
E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT.
21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally
Standard Agreement Page 9 of 12 City of National City and Revised February 2023 National City Chamer of Commerce delivered, the date of delivery to the add ress of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is out side the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons:
To CITY: Ben Martinez
Interim City Manager
Office of the City Manager
City of National City
1243 National City Boulevard
National City, CA 91950-4397
To CONSULTANT:
Victor Gonzalez
Chairman
National City Chamber of Commerce
City Of National City
901 National City Boulevard
National City, CA 91950-4397
Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty - eight (48) hours by letter mailed or delivered as specified in this Section.
22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT
OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City . The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National C ity Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that wou ld require it to disqualify itself from any matter on which it might perform services for the CITY.
If checked, the CONSULTANT shall comply wi th all of the reporting requirements of the Political Reform Act and the National C ity Conflict of Interest Code.
Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk
Standard Agreement Page 10 of 12 City of National City and Revised February 2023 National City Chamer of Commerce of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk.
The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Section 22 by the CONSULTANT.
23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations.
24. ADMINISTRATIVE PROVISIONS.
A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday.
B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof.
D. No Obligations t o Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions containe d in this Agreement, the terms and conditions of this Agreement shall control.
F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto.
G. Assignment & Assumption of Rights . CONSULTANT shall not assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY.
H. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof.
I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California.
J. Audit. If this Agreement exceeds ten-thousand dollars ($10,000), the parties shall be subject to the examination and audit of the Sta te Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7.
K. Entire Agreement. This Agree ment supersedes any prior agree ments, negotiations and communications, oral or written, and contains the entire agreement between the
Standard Agreement Page 11 of 12 City of National City and Revised February 2023 National City Chamer of Commerce parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby.
L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.
M. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 15 of this Agreement.
N. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party’s counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written.
Standard Agreement Page 12 of 12 City of National City and Revised February 2023 National City Chamer of Commerce
CITY OF NATIONAL CITY
By: ____________________________
Ron Morrison, Mayor
APPROVED AS TO FORM:
By: ____________________________
Barry J. Schultz,
City Attorney
INSERT CO’S NAME IN BOLD, ALL CAPS
(Corporation – signatures of two corporate officers required) (Partnership or Sole proprietorship – one signature)
By: ______________________________
(Name)
______________________________
(Print)
______________________________
(Title)
By: ______________________________
(Name)
______________________________
(Print)
______________________________
(Title)
Scope of Work for City Grant of $50,000.00
This is a proposal for the scope of work for the City’s support for the National City Chamber of Commerce.
These are all economic development tasks whose primary goal is to attract more business from outside the City of National City, to help local businesses grow and improve the economic opportunities for local residents.
1) Weekly Business Visits in National City. The aim of this program is to have a permanent schedule of visits to businesses in National City, with the goal of learning about the nature of the business and what services they need and what challenges they are facing.
Goal: Increased Business Visits and support
Deliverable: Visit 5 businesses every week, completing the attached survey for each business.
This will begin in September 2023
The Chamber will share with the city the survey responses at the end of the month and a list of businesses visited in every district in National City.
2) Marketing workshops for Local Businesses (Yelp, Social Media and Google) to educate and empower our local businesses to market their businesses in the new era of social media marketing.
Goal: Increase Social media presence of local businesses.
Deliverable: Host a minimum of 4 Social media marketing workshops available to all businesses.
3) Development, recruitment, and promotion of a new Automotive Directory for National City, that will include businesses related to the Automotive industry in National City. This directory will be available in print and in a digital platform to promote many businesses in this sector. The goal is to bring awareness and new business to the City of National City’s Automotive sector.
Launch for business recruitment – September 2023
Directory ready for distribution – January 2024
Goal: to have 40 automotive businesses in the first edition of this directory.
Deliverable: Auto Directory
No Non-conforming businesses and to have a business license.
4) Maintenance and improvement of the website “Discover National City” to be used as a promotional tool to bring more businesses to National City. By adding a minimum of 3 new Businesses every week to this website, community and city events, attractions, and blogs. This website will discover the many options for shopping and entertainment available in National City, especially people outside the city, bringing new business to these businesses. * We will prepare a list of the businesses that have been added every month, covering all the districts in National City. This is an ongoing task with no ending date.
Goal: Increase traffic to the website by 30% by the end of the 12 months Deliverable: An updated and robust website including events happening in the City and links to select local businesses videos.
5) Maintaining a listing of jobs available in National City on the NC Chamber of Commerce website. The goal is to help local residents have access to jobs available in their own community, saving them transportation costs and easier access to good jobs. We currently have 125 jobs listed that are in National City.
Goal: Updated Job Openings on a monthly basis
Deliverable: to keep the list updated and have a minimum of 100 local jobs listed at any given time. This is an ongoing task. We can print out the monthly list of job offers at the end of the month.
We will request a list of jobs filled from the main employers to track the success for these efforts.
We will prepare a monthly report on each of these items so that the city can know the progress and impact that these activities have on businesses and the local community.
The National City Chamber of Commerce will issue a monthly invoice to the City for $3,200.00 for 11 months and a final one of $4,800.00 to round up the total to complete the $40,000.00. In this way, the City would know the progress on a monthly basis for these tasks.
The City would also sponsor Chamber events for a total of $10,000.00 for the year based on the attached sponsorship proposal.
If the Chamber does not send monthly reports on these items to support the scope of work, the City could revert to requesting hourly tasks to support invoicing.
* Having an app is a useful tool for most businesses since it is an easier way for consumers to navigate the products. Since we are only providing information about National City, a website, which we already purchased and are constantly maintaining it, is the best way to promote National City.
The Chamber already invested in a couple of apps in the past, a directory for our members, Chamber upcoming events, and an interactive map of National City. We felt this action was not successful and most people didn’t bother downloading our apps. When people are searching for any community items in National City, our website DiscoverNationalcity.org and the Chamber website will show up on their search engine and we often get calls from visitors asking for more information.
RESOLUTION NO. 2023 -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY , CALIFORNIA,
APPROVING AN AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND THE NATIONAL CITY CHAMBER OF COMMERCE FOR A NOT TO EXCEED AMOUNT OF $50,000
FOR ECONOMIC DEVELOPMENT SERVICES
WHEREAS, the National City Chamber of Commerce has been supporting the National City business community for over 100 years with support from over 600 National City businesses; and
WHEREAS, the City of National City for many years has supported the National City Chamber of Commerce through shared goals of supporting our business community; and
WHEREAS, on June 20, 2023, the City Council adopted the Fiscal Year 2024 budget allocating $50,000 for the National City Chamber of Commer ce to be used for economic development services; and
WHEREAS, the National City Chamber of Commerce will assist the City with economic development services in the National City business community through workforce development, small business support, business visits, and tourism; and
WHEREAS, City staff recommends City Council authorize the Mayor to execute an agreement between the City of National City and the National City Chamber of Commerce for a not-to-exceed amount of $50,000 for economic development services.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1: Authorizes the Mayor to execute an agreement between the City of National City and the National City Chamber of Commerce for a not-to-exceed amount of $50,000 for economic development services.
Section 2: That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions PASSED and ADOPTED this 7th day of November, 2023.
Ron Morrison, Mayor
ATTEST:
Shelley Chapel, MMC, City Clerk
APPROVED AS TO FORM:
Barry J. Schultz, City Attorney
AGENDA REPORT
Department: Housing Authority
Prepared by: Angelita Palma, Housing Programs Manager Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Ratifying Prior Expenditures and Amendment No. 1 for Section 8 Software.
RECOMMENDATION:
Adopt the Resolution Entitled, “Resolution of the Community Development Commission-Housing Authority of the City of National City, California, Ratifying Prior Expenditures from Fiscal Year (FY) 2002 through FY 2024 Totaling $292,349.49 and Master Agreement Amendment No. 1, Including a Not-to-Exceed Amount of $35,030.00 for FY 2025, to Administer the Section 8 Housing Choice Voucher Program through Happy Software Inc., Now Known as MRI Software LLC.”
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
N/A
EXPLANATION:
Background
HUD regulations require that a housing software program be used for the proper administration and management of the Section 8 Housing Choice Voucher (Section 8 HCV) Program. On June 18, 2002, through CDC Resolution 2002-31, the CDC authorized the purchase and utilization of software and services from Happy Software Inc., which was identified as the most qualified and experienced provider of such software and services. In 2018, Happy Software Inc. was acquired by MRI Software LLC, which continues to provide the same software, and services to its customers.
From FY 2002 through FY 2024, the Section 8 HCV Program has continued to purchase and utilize this software through Happy Software Inc. and MRI Software LLC. These expenditures have been paid through HUD Section 8 HCV grant funds. The expenditures other than those approved in CDC Resolution 2002 -31 have totaled $292,349.49. Staff recommends the City Council ratify the combined expenditures as the amount of funding exceeds the City’s established limits for contracting and award authority.
The Housing Authority’s Section 8 HCV Program secured pricing for software and services by MRI Software LLC for thirty-six (36) months through Amendment No. 1 (Exhibit “B”) to the Master Agreement (Exhibit “A”) expiring at the end of FY 2025 . Staff recommends that the City Council ratify Amendment No. 1 to maintain the pricing at the not-to-exceed amount of $35,030.00 for FY 2025. The Housing Authority will bring f uture agreements to the City Council for approval per policy.
City Council Action
The Resolution would: 1) ratify prior expenditures totaling $292,349.49 for products and services required to administer the Section 8 Housing Choice Voucher Program previously through Happy Software Inc. and MRI Software LLC; 2) ratify Amendment No. 1 including a not -to-exceed amount of $35,030.00 for services in FY 2025; and 3) authorize the City Manager or his designee to execute agreements and amendments with MRI Software LLC for products and services used to administer the Housing Authority’s Section 8 HCV Program.
FINANCIAL STATEMENT:
This action would ratify $292,349.49 in prior Happy Software Inc. and MRI Software LLC expenditures from FY 2002 to 2024. The not-to-exceed amount of $35,030.00 for MRI Software LLC software and services for FY 2025 as specified in Amendment No. 1 will be included in the FY 2025 budget using expenditure account 502-419-462-299-0000.
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Housing and Community Development
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Not Applicable
EXHIBITS:
Exhibit A - MRI Software LLC Master Agreement
Exhibit B – Software LLC Amendment No.1
Exhibit C – Resolution MRI
Updated April 2023 – Version 9 MRI Confidential Page 1 of 28
MASTER AGREEMENT
This Master Agreement is entered into between MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Master Agreement to be effective as of the Effective Date, as defined in the Order Document. As used in this Agreement, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI.
1. PURPOSE AND SCOPE
1.1 Master Agreement. This Master Agreement establishes the general terms and conditions to which the Parties have agreed in order to facilitate the licensing of residential and/or commercial property management enterprise software, content, other products and/or the provision of related services.
Additional product or service-specific terms and conditions are set forth in one or more Schedules (as further defined in Section 1.2 herein).
All references to the “Master Agreement” shall mean this document, exclusive of Schedules. All references to the “ Agreement” wherever found shall include this Master Agreement, all Schedules, the Order Document and any attachments incorporated in the Schedules.
1.2 Incorporation of Schedules. This Master Agreement shall fully incorporate by reference the terms and conditions found in each of the Schedules indicated on the Order Document or incorporated into these terms The Parties may execute, from time to time, additional Schedules under the terms of this Master Agreement.
1.3 Incorporation of Order Documents.
“Order Document” means the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the terms of this Master Agreement and applicable Schedules, and describes Client’s order -specific information, such as description of Software or Services ordered, license scope, use and restrictions, fees, milestones, and/or Third Party EULAs, if any.
At any time after execution of the initial Order Document, Client may purchase additional Software licenses or Services or otherwise expand the scope of such license or Services granted under an Order Document, upon MRI’s receipt and acceptance of a new Order Document specifying the foregoing.
1.4 Owner. The Software is designed to be used for residential and/or commercial property management. If the Client is not the owner of such property or not the owner of all such properties for which the Software or any Service is utilized; but rather, Client is the manager for the owner of such property (with the non-Client property owner defined as “Owner”), then Client represents that Client either: (i) is entering this Agreement directly in privity with MRI; or (ii) is the duly appointed agent of the Owner and has the authority to enter into and perform the Agreement and use the Software and Services pursuant to the terms set forth in the Agreement. Client shall at all times be solely liable for the payment of all fees and the observance of all obligations, terms and conditions of the Agreement, regardless of any action, inaction or non- payment by any Owner. Client shall keep MRI apprised in writing at all times of the identity and contact information of the Owner, and if Client’s relationship changes with respect to the Owner (by way of example and not by way of limitation, such as if Client’s agency or management relationship with Owner terminates). If Client’s relationship with an Owner or a particular property terminates for any reason, Client shall continue to be liable for any and all fees related to such Owner or property regardless of when such fees are billed by MRI. Client shall immediately notify MRI in the event of any change in ownership or control (including any change in control pursuant to a management contract) of Client, Owner or any of the properties, sites, or communities authorized for use of any Software or SaaS Service. Client shall undertake all reasonable efforts to assist in deactivating the ability of any such sold or transferred properties, sites and communities to use or benefit from any Software or SaaS Service. Client shall remain fully liable for the use of any Software or SaaS Service until proper notification is completed.]
1.5 Administrators. For the purposes of this Agreement, “Administrators” means the individual so designated by Client on the Order Document. An Administrator has full administrative privileges for all Software and Services, including without limitation (i) creating, deleting or modifying databases or user accounts; (ii) creatin g, deleting, copying, restoring or requesting copies of databases; (iii) requesting security and audit reporting; (iv) security class modification; and (v) site modification. Once named, the Administrator(s) shall have sole authority to ins truct MRI and make decisions on behalf of Client regarding Client’s use of the Software or Services. MRI shall be entitled to rely upon any representation of the Administrator(s) without further verification of authority. MRI may, from time to time, in its sole discretion, require written documentation of Client verifying the authority or continued authority of any Administrator, which Client shall provide upon request. At least one (1) Administrator must be a Designated Support Contact. An Administrator must be an employee of the Client.
1.6 Designated Support Contact. For the purposes of this Agreement, “Designated Support Contacts” means the Client employees so designated by Client on the Order Document. The Client shall have the number of Designated Support Contacts as designated on the Order Document. Only a Designated Support Contact shall be permitted to contact MRI for any Maintenance and Support services and shall have the authority to (i) log case requests; and (ii) receive status updates on ca ses. A Designated Support Contact must be an employee of the Client.
1.7 Client User. For the purposes of this Agreement, “Client User” means a Client employee or Client Affiliate, acting directly on behalf of Client and using the Software or Services solely for the purpose of the Client’s internal business operations. If an Affiliate is a Client User, Client warrants that it has the authority to bind such Affiliate(s) to the terms of the Agreement and any applicable Schedule and further warrants that Client shall be jointly and severally responsible (with any such Affiliates) for a breach of such terms by its Affiliates.
Client shall only permit Client Users to access and use any Software or Service and represents and warrants that all Client Users shall comply with the terms and conditions of use set forth in this Agreement and each such Client User shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the terms of this Agreement. Client shall indemnify and hold MRI harmless for all loss, damages, costs and expenses (including reasonable attorneys’ fees) incurred by MRI for any breach or other v iolation of this Agreement by a Client User. An independent contractor, agent or other third party acting on behalf of Client may be deemed a Client User upon prior written consent of MRI, which MRI shall determine in its sole discretion, and may require such independent contractor, agent or other third party to certify with or enter contractual terms with MRI acceptable to MRI. In no event shall the combined use of the Software or Services hereunder by Client and its Client Users exceed the Licensed Metrics authorized under the applicable Order Document.
2. DEFINITIONS
“Affiliate” means an entity controlling, controlled by or under common control with a Party to the Agreement where control means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
“Client” means the entity that has entered into this Agreement with MRI. “Client” also r efers to Affiliates authorized to use the Software and Services in accordance with Section 1.7.
Updated April 2023 – Version 9 MRI Confidential Page 2 of 28
“Client Data” means any data, media, content, and information that Client provides, generates, transfers , uploads or makes available to MRI under the Agreement, whether printed, electronic, or in some other format. Information that is collected by the System as part of the Services shall be considered information that has been provided by the Client. Client Data shall include, without limitation, documents, data, spreadsheets, photographs, video, and other media. Client Data shall also include data and information belonging to Owner as well as Owner’s customers and Client’s customers. Feedback provided to MRI by the Client shall not be considered Client Data.
“Content” means any information, data, text, software, music, sound, photographs, graphics, video messages or other material to which Client is provided access through MRI or the Software.
“Configurations” means, regardless of whether such Configurations are performed by MRI, Client or Client User, (i) configurations implemented through use of the MRI application toolkit or other MRI approved industry standard toolkit, and not through source code change, or (ii) modifications to standard services reports. Notwithstanding any other provision in the Agreement, if Client has Configurations performed by a third party, such third party must be qualified as a Client User pursuant to Section 1.7 prior to the disclosure of any MRI Confidential Information to such third party.
“Documentation” means the user instructions, release notes, Functional Specifications, manuals and on- line help files in the form generally made available by MRI, regarding the use of the applicable Software. “Functional Specifications” means those specifications of the MRI Software’s functionality as set forth in the MRI Software LLC and Affiliated companies Functional Specifications, which may be found on
www.mrisoftware.com/MRIfunctionalspecs.asp, which specifications may be updated from time to time by MRI upon posting new specifications at such web page address.
“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know -how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which MRI has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“License Metrics” means the limitation on the usage of each of the Software and Maintenance and Support services as designated and/or defined in the applicable Order Document by a term such as the number of leases, units, assets, users and the like.
“Maintenance and Support” includes (i) phone assistance and workarounds so that the Software operates in material conformance with the Functional Specifications, and (ii) Updates, all of which are provided under MRI’s Maintenance and Support Policies (as may be amended by MRI from time to time) in effect at the time the Support is provided. For the avoidance of doubt, Maintenance and Support excludes Professional Services. “Maintenance and Support Policies” means those policies and procedures listed in the Maintenance and Support Policies, that may also be found on MRI’s website at www.mrisoftware.com/maintenanceandsupport, which may be subject to update by MRI from time to time.
“MRI Software ” means each MRI -developed and/or MRI -owned software product in machine readable object code (not source code), the Documentation for such product, and any Updates and Upgrades thereto (if purchased by Client). “Owner” is defined in Section 1.4.
“Professional Services” means data conversion, implementation, site planning, configuration, integration and deployment of the Software or SaaS Services , training, project management and other consulting services. “Protected Materials” means Software, Content, Services, Configurations, license keys and MRI’s or its licensors’ Intellectual Property or Confidential Information.
“SaaS Services” the provision of the Software and/or Content as a service which is hosted by MRI or its hosting providers and which is accessed by Client via the internet, as more fully described in the SaaS Services Schedule and associated Order Document(s).
“Services” means collectively (i) the Professional Services; (ii) Maintenance and Support, and (iii) SaaS Services.
“Software: means collectively the MRI Software and Third Party Software. “System” means the total package of hardware and Software furnished and/or maintained by MRI.
“Third Party EULA” or “EULA”: the end user license agreement, if any, that accompanies or pertains to the Third Party Software, and that is incorporated into the Agreement, appended to the Order Document or is otherwise published by the third party supplier, and which governs the use of or access by Client to the applicable Third Party Software. A current list of Third Party EULAs may be found at www.mrisoftware.com/EULA, which may be updated from time to time. “Third Party Software ” means software in object code form, including Documentation, Updates and Upgrades (if purchased by Client), owned by an entity other than MRI which are to be provided to Client by MRI on a pass - through, reseller or OEM basis pursuant to the terms of the EULA. “Updates” means a new version of the Software, if and when developed after the effective date of the Order Document, which MRI makes generally available to its customers as part of the Maintenance and Support. Updates include bug fixes, patches, error corrections, non- new platform changes, or minor modifications or revisions to the Software that enhance existing performance.
Updates exclude Upgrades and new products, modules or functionality for which MRI generally charges a separate fee.
“Upgrade” means a new Software release that may contain (i) new applications; (ii) major functionality enhancements or improvements; and/or (iii) a new platform, which MRI designates as an Upgrade and for which MRI charges a separate license fee or, at MRI’s election, new modules or products, or major releases that include significant feature enhancements or significant architectural modifications for which MRI charges an incremental upgrade fee.
3. FINANCIAL TERMS
3.1 Fees and Payment Terms. Fees are specified in the applicable Order Document. Fees are exclusive of, and Client is responsible for, shipping costs.
Payment of all fees is due thirty calendar (30) days after the invoice date, unless otherwise agreed in the Order Document. Interest accrues on past due balances at the lesser of a one and a half percent (1½%) per month compounded or the highest rate allowed by law. Client is responsible for providing an accurate billing contact on the Order Document and updating that billing contact as needed from time to time such that MRI always has an accurate billing contact for Client.
If Client fails to make payments of any fees due under the Agreement, Client shall be in material breach of this Agreement. MRI will be entitled to suspend its
Updated April 2023 – Version 9 MRI Confidential Page 3 of 28
performance upon calendar ten (10) days’ written notice to Client and/or to modify the payment terms, and to require full payment before any additional performance is rendered by MRI. Notwithstanding any of MRI’s rights enumerated in Sections 3.1 or 9 of this Master Agreement, if Client fails to timely pay applicable fees under an Order Document, MRI shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then current term of the applicable Order Document are immediately due and owing. Client shall be responsible to pay any collection expenses (including attorneys’ fees) incurred by MRI.
Unless expressly provided otherwise, fees paid or payable for Software licenses, SaaS Services or Maintenance and Support are not contingent under any circumstances upon the performance of any Professional Services.
3.2 Taxes. Unless expressly provided otherwise, the prices in the Agreement do not include taxes. Client agrees to pay any taxes, other than those based on MRI’s net income, arising out of the Agreement , including goods and services tax imposed on MRI in connection with supplies made under the Agreement. If Client is tax-exempt, Client agrees to send MRI a copy of its tax- exempt certificate prior to execution of a Schedule. Client agrees to indemnify MRI from any liability or expense incurred by MRI as a result of Client’s failure or delay in paying taxes due.
3.3 Travel Expenses. Unless otherwise noted within the Order Document, MRI’s reasonable travel and lodging expenses incurred by MRI in the performance of Services on Client’s site will be billed separately at actual cost.
4. CONFIDENTIALITY
4.1 Defined. By virtue of the Agreement, the Parties may be exposed to or be provided with certain confidential and proprietary information of the other Party or third parties, including but not limited to information designated as confidential in writing or information which by its nature ought to be in good faith considered confidential and proprietary to the disclosing Party (“Confidential Information”).
Confidential Information of MRI and/or its licensors includes but is not limited to the terms and conditions (but not the existence) of the Agreement, including without limitatio n all Order Documents, fees and charges, all trade secrets, software, source code, object code, specifications, documentation, business plans, customer lists and customer -related information, financial information, proposals, budgets as well as results of testing and benchmarking of the Software or Services, product roadmap, data and other information of MRI and its licensors relating to or embodied in the Software or Documentation. MRI’s placement of a copyright notice on any portion of any Software will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of MRI.
4.2 Non-Disclosure. Each Party will protect the other Party’s Confidential Information from unauthorized use or dissemination and use the same degree of care that each such Party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither Party will use Confidential Information of t he other Party for purposes other than those necessary to directly further the purposes of the Agreement. Neither Party will disclose to third parties Confidential Information of the other Party without prior written consent of such other Party. Notwithstanding anything in this Agreement to the contrary, Client agrees that, upon request by Owner, MRI may communicate directly with the Owner about all aspects of the Agreement, the Client Data, and any other Client Confidential Information, if applicable.
4.3 Exceptions. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was rightfully in the receiving Party's possession before receipt from the disclosing Party free of any obligation to keep it confidential; (iii) is lawfully obtained from a third party who has the right to make such disclosure; or (iv) has been independently developed by the receiving Party without reference to any Confidential Information of the disclosing Party.
4.4 Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party sufficient prior notice of such compelled disclosure (to the extent legally permitted) to permit the disclosing Party a reasonable opportunity to object to the compelled dis closure and to allow the disclosing Party the opportunity to seek a protective order or other appropriate remedy. The receiving Party shall provide reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure.
4.5 Remedy/Injunctive Relief. The Parties acknowledge that disclosure of any Confidential Information may give rise to irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party may seek injunctive relief against the other Party’s breach or threatened breach of this Section 4 as well as any other legal remedies that are available.
5. PRIVACY
The Parties agree to comply with the terms of the Data Protection and Security Schedule.
6. LIMITED RIGHTS AND OWNERSHIP
6.1 Reservation of Rights. All rights not expressly granted in the Agreement are reserved by MRI and its licensors. Client acknowledges that: (i) all Software is licensed and not sold and all Content is subscribed to and not sold; (ii) Client acquires only the right to use the Prot ected Materials and MRI, its licensors, and Content providers shall retain sole and exclusive ownership of all rights, title, and interest in the Protected Materials, including (whether developed by MRI, Client, Client User, or other third party) (a) Intellectual Property embodied in or associated with the Protected Materials, (b) deliverables and work product associated with the Protected Materials, and (c) all copies and derivative works thereof; and (iii) the Protected Materials, including the source and object codes, logic and structure thereof, constitute valuable trade secrets of MRI and its licensors. Client hereby assigns to MRI all right, title and interest in and to Configurations developed by Client, Client User or by any other third party on behalf of Client; however, Client shall retain a license to use such Configurations for so long as Client retains a license to use the Software or SaaS Services, as applicable, used in conjunction with such Configurations. Client agrees to secure and protect the Protected Materials consistent with the maintenance of MRI’s and its licensors’ rights therein, as set forth in this Master Agreement. If Client provides to MRI any ideas, proposal, suggestion or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements ("Feedback"), Client hereby give to MRI, without charge, royalties or other obligation, the right to make, have made, create derivative works, use, share and commercialize your Feedback in any way and for any purpose. Client agrees to execute such further instruments, and take such further actions as MRI may reasonably request, at MRI’s expense, to apply for, register, perfect, confirm, and protect MRI’s rights. Client shall reimburse MRI for any and all expenses that MRI may incur (including interest, attorneys’ fees and other legal expenses) in connection with MRI’s efforts to enforce its rights against Client with respect to the Protected Materials, or any of MRI’s Intellectual Property rights in the event MRI prevails in such enforcement efforts.
6.2 Restrictions. Client shall not itself, or through any Affiliate, Client User, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host (except Client shall be permitted to host the MRI Software with respect to a perpetual software license), lease, rent, license or sublicense, in whole or in part, the Protected Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or
Updated April 2023 – Version 9 MRI Confidential Page 4 of 28
other elements of the Software, including the license keys, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Protected Materials to any user other than Client Users; (iv) write or
develop any derivative works based upon the Protected Materials, except for authorized Configurations; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; (vi) use the Protected Materials to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis, other than on behalf of Owner, if applicable; (vii) disclose or publish, without MRI’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; or (viii) otherwise use or copy the Protected Materials except as expressly permitted herein.
6.3 Client Data. Notwithstanding anything in this Agreement to the contrary, Client and/or Owner retains sole and exclusive ownership to any and all Client Data.
6.4 License Grant by Client. Client hereby grants to MRI a perpetual, non- cancellable, worldwide, non-exclusive right to utilize any data that arises from the use of the Protected Materials by Client whether disclosed on or prior to the Effective Date for any legitimate business purpose, including the right to sublicense such data to third parties, subject to all legal restrictions regarding the use and disclosure of such information.
6.5 Enforcement. Client shall (i) ensure that all users of Protected Materials comply with the terms and conditions of the Agreement, (ii) promptly notify MRI of any actual or suspected violation thereof and (iii) cooperate with MRI with respect to investigation and enforcement of the Agreement. The Software contains code-based protections that serve to prevent and remedy violations of the license restrictions. If the Software is hosted on Client’s technology systems, MRI may access the Software remotely in order to ensure Client’s compliance with the license terms and other restrictions of the Agreement.
7. INDEMNIFICATION
7.1 Intellectual Property Infringement. MRI will defend or settle, at its option and expense, any action, suit or proceeding brought against Client by a third party that the MRI Software or SaaS Services infringe a third party’s UK, Australia or USA patent, r egistered copyright, or registered trademark (“ IP Claim”). MRI will indemnify Client against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such IP Claim, provided that Client: (i) promptly gives written notice of the IP Claim to MRI; (ii) gives MRI sole control of the defense and settlement of the IP Claim; (iii) provides MRI, at MRI’s expense, with all available information and assistance relating t o the IP Claim and cooperates with MRI and its counsel; (iv) does not compromise or settle such IP Claim; and (v) is not in material breach of any agreement with MRI.
7.2 Indemnification Exceptions. MRI has no obligation to the extent any IP Claim results from: (i) Client having modified the MRI Software or SaaS Services or used a release other than a current unaltered release of the MRI Software, if such an infringement would have been avoided by the use of a current unaltered release of the MRI Software, (ii) Content and/or any Third Party Software, (iii) Configurations or (iv) the combination, operation or use of the MRI Software or SaaS Services with software or data not provided by MRI.
7.3 Infringement Remedies. If it is adjudicated that an infringement of the MRI Software or SaaS Service by itself and used in accordance with the Agreement infringes any UK, Australia or USA patent, registered copyright, or registered trademark, MRI shall, at its option: (i) procure for Client the right to continue using the MRI Software or SaaS Service; (ii) replace or modify the same so it becomes non-infringing; or (iii) MRI shall terminate the applicable license or Service and shall refund to Client (a) with respect to a perpetual license to the MRI Software, the li cense fees for the affected Software, less 1/12 thereof for each month or portion thereof since the original Effective Date, or (b) with respect to SaaS Services and/or limited term Software licenses, the pre- paid portion of the SaaS Services or term license fees paid to MRI for the affected MRI Software or Service. SECTIONS 7.1, 7.2 AND 7.3 STATE MRI’S ENTIRE OBLIGATION TO CLIENT AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
7.4 Client Indemnification. Client shall defend MRI against any claim, demand, suit, or proceeding made or brought against MRI by a third party arising out of or related to (i) the Client Data; (ii) Client’s or its users’ use of the Software or the SaaS Services in violation of the Agreement; (iii) Client or any user infringing or misappropriating the Intellectual Property rights of a third party or violating applicable law; or (iv) Client’s or its users’ use or misuse of the Software or SaaS Service or Client’s or its users’ use or misuse of the Client Data (including, without limitation, accessing, providing access, using or distributing the Client Data) (each of the above a “Client Claim”). Client shall indemnify MRI for all damages and costs finally awarded against, and for reasonable attorneys’ fees incurred by, MRI in connection with any Client Claim, or those costs and damages agreed to in a monetary settlement of such Client Claim; provided that MRI (a) promptly gives Client written notice of the Client Claim, (b) gives Client sole control of the defense and settlement of the Client Claim (provided that Client may not settle or defend any Client Claim unless it unconditionally releases MRI of all liability), and (c) provides Client all reasonable assistance, at Client’s cost.
For purposes of this Section 7.4 only, “MRI” shall include MRI and its Affiliates, and each of their members, owners, officers, directors, employees, agents, successors and assigns.
8 DISCLAIMERS AND LIMITATION OF LIABILITY.
8.1 Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET FORTH
IN THE SCHEDULES ARE IN LIEU OF, AND MRI, ITS LICENSORS AND
SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ALL OTHER WARRANTIES, CONDITIONS OR OTHER
TERM EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, SAAS SERVICE,
CONTENT, DELIVERABLES OR OTHER SERVICES ARE ERROR-FREE OR
WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT, (iii) ANY WARRANTY, CONDITION OR OTHER TERM THAT
CONTENT AND/OR THIRD PARTY SOFTWARE WILL BE ACCURATE,
RELIABLE AND ERROR -FREE AND (iv) ANY AND ALL IMPLIED
WARRANTIES, CONDITION OR OTHER TERM ARISING FROM STATUTE,
COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF
TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY MRI, ITS
AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR
CHANGE ANY WARRANTY PROVIDED HEREIN. ALTHOUGH CERTAIN OF
THE SOFTWARE AND CONTENT MAY BE DESIGNED TO HELP CLIENTS
COMPLY WITH APPLICABLE LAWS AND REGULATIONS, MRI HEREBY
DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE AND CONTENT IN THIS REGARD;
MOREOVER, VARIOUS STATE LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE LAW REQUIREMENTS. ALL SUCH LAWS
AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND THE
SOFTWARE AND CONTENT MAY NOT BE UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT AN ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.
8.2 Connection Over Internet. CLIENT ACKNOWLEDGES THAT USE OF
OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR
UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY
PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CLIENT DATA. ACCORDINGLY, MRI CANNOT AND DOES NOT GUARANTY
THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO
TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
Updated April 2023 – Version 9 MRI Confidential Page 5 of 28
8.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, MRI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED
UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY
THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY
PURSUANT TO SECTION 7 (Indemnification), WILL BE LIMITED TO (i) WITH
RESPECT TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL
SERVICES, THE FEES PAID BY CLIENT FOR THE SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM LESS 1/36 THEREOF FOR
EACH MONTH OR PORTION THEREOF SINCE THE EFFECTIVE DATE AND (II) WITH R ESPECT TO SAAS SERVICES, TERM LICENSES AND
MAINTENANCE AND SUPPORT,THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.
8.4 Third Party Software and Content. From time to time, MRI may utilize Third Party Software and Content in order to deliver the Software or Services to its Clients. Client’s use of the Third Party Software and Content is subject to and Client shall comply with the terms of any applicable Third Party EULAs. The licensors of such Third Party Software are intended third party beneficiaries with rights to enforce the Third Party EULAs. MRI has no control over Third Party Software providers or the availability of the Third Party Software and Content. In its discretion, MRI may add, remove, and/or substitute any Third Party Software.
THE PROVISION OF CONTENT IS SUBJECT TO AVAILABILITY FROM THIRD
PARTY CONTENT PROVIDERS AND MRI SHALL HAVE NO LIABILITY
SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE COMMERCIAL TERMS.
PROVIDED THAT MRI IS OTHERWISE IN COMPLIANCE WITH ITS
WARRANTY PROVISIONS UNDER THE APPLICABLE SCHEDULES, MRI
MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY
SOFTWARE OR ANY CONTENT; AND CLIENT’S SOLE REMEDY WITH
RESPECT TO SUCH THIRD PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL LICENSOR’S WARRANTY, IF ANY, TO MRI, TO THE EXTENT PERMITTED BY THE ORIGINAL LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS.
8.5 No Special Damages. IN NO EVENT WILL MRI BE LIABLE TO
CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF
TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE),
WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE,
WHETHER OR NOT MRI HAS PREVIOUSLY BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.6 Time to Bring Claim. NO CLAIM ARISING OUT OF THE
AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST MRI MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.
8.7 Survival. THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
9. TERM AND TERMINATION
9.1 Term. The term of this Master Agreement shall commence on the Effective Date set forth above and shall continue in full force and effect until the expiration or termination of all Schedules, unless otherwise terminated earlier as provided hereunder.
9.2 Termination. Either Party may terminate the Agreement including all Schedules immediately upon written notice in the event that the other Party commits a non-remediable material breach of the Agreement, or if the other Party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching Party within thirty (30) calendar days of being notified in writing of such breach, except for breach of Section 3.1 (Fees and Payment Terms) which shall have a ten (10) calendar day cure period.
Where a Party has a right to terminate the Agreement, the non-breaching Party may at its discretion either terminate the Agreement or the applicable Schedule.
Schedules that are not terminated shall continue in full force and effect under the terms of this Master Agreement.
9.3 Post-Termination Obligations. Following termination of the Agreement or a Schedule (for whatever reason), Client shall certify that it has returned or destroyed all copies of the applicable Software, Content and Confidential Information of MRI and acknowledges that its rights to use the same are relinquished. Termination of this Agreement for any reason shall not exc use Client’s obligation to pay in full any and all amounts due, nor shall termination by MRI result in a refund of fees paid. Client shall use its commercially reasonable efforts to remove all Client Data from any Software or SaaS Service prior to termination of the Agreement or applicable Schedule. Client may engage MRI to assist Client in removing such Client Data at MRI’s then standard rates. If any Client Data remains in the Software or SaaS Service more than thirty (30) calendar days after the effectiv e date of termination, MRI may, in its sole discretion and without notice, delete any and all Client Data. At any time before or after termination, if an Owner requests that any Client Data be provided directly to such Owner, Client agrees that MRI may transfer such Client Data directly to such Owner, and that MRI shall not be liable for any damages that result from the transfer of Client Data to an Owner.
10. GENERAL PROVISIONS
10.1 Security The Parties agree to comply with the security measures outlined in the Data Protection and Security Schedule attached.
10.2 Force Majeure. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the ext ent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section. Such events, occurrences, or causes shall include, wit hout limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions (“Force Majeure Events”). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.3 Assignment. MRI may novate, transfer, or assign the Agreement and all of its rights and obligations herein without Client’s approval to its parent company or other affiliated company, to a successor by operation of la w, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Neither Party may otherwise assign or transfer the Agreement without the prior written consent of the other Party.
10.4 Notice of U.S. Government Restricted Rights. If the Client hereunder is the U.S. Government, or if the Software is acquired hereunder on behalf of the U.S. Government with U.S. Government federal funding, notice is hereby given that the Software is commer cial computer software and documentation developed exclusively at private expense and is furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227- 19, Commercial Computer Software - Restricted Rights (June 1987)”.
10.5 Export. Client shall comply fully with all relevant ex port laws and regulations of the United States and other applicable jurisdictions to ensure that the Software is not exported, directly or indirectly, in violation of those laws.
Updated April 2023 – Version 9 MRI Confidential Page 6 of 28
10.6 Non-solicitation. During the term of this Master Agreement and for a period of one year following its termination, Client will not employ or solicit for employment directly or through other parties, without the MRI’s written permission, any individual employed by MRI. If a Party breaches this Section
10.6, such Party shall pay to the non- breaching Party a sum equal to one- hundred fifty percent (150%) of the hired employee’s annual salary while such employee was employed by the non-breaching Party, and such payment shall be made within thirty (30) calendar days of hiring such employee.
10.7 Compliance. During the term of this Master Agreement and for a period of one year following its termination, Client shall maintain and make available to MRI records sufficient to permit MRI or an independent auditor retained by MRI to verify, upon ten (10) calendar days’ written notice, Client’s full compliance with the terms and requirements of the Agreement. Such audit shall be performed during regular business hours. If such verification process reveals any noncompliance by Client with the Agreement, Client shall reimburse MRI for the reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) incurred by MRI, and Client shall promptly cure any such noncompliance, including without limitation through the payment of any and all fees owed to MRI during the period of noncompliance; provided, however, that the obligations under this Section do not constitute a waiver of MRI’s termination rights . Client acknowledges that the Software may include a license manager component to track usage of the Software and agrees not to impede, disable or otherwise undermine such license manager’s operation.
10.8 Notices. Any notice required or permitted to be sent under the Agreement shall be delivered by hand; by overnight courier; by certified mail, return receipt requested; or in a conspicuous banner to the Client within the product, to the Parties first set forth in the Agreement or to such other address of the Parties designated in writing in accordance with this subsection.
10.9 Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship.
Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.
10.10 Invalidity. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
10.11 Survival. The following provisions will survive any termination or expiration of the Agreement or a Schedule: Sections 1, 2, 3, 4, 6.1, 6.2, 6.5, 7, 8, 9, and 10.
10.12 No Waiver
. Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing and signed by an authorized representative of each Party in order to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. The waiver by either of the Parties hereto of a breach or of a default under any of the provisions of the Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity.
Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party’s right to take subsequent action.
10.13 Entire Agreement. The Agreement constitutes the Parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter as well as any prior contractual agreements between the Parties. Client hereby releases and discharges MRI from any and all claims for relief, causes of action, or demands arising out of or in any way relating to any event, act or occurrence prior to the Effective Date of this Agreement. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each Party. All pre-printed terms of any Client purchase order or other Client business processing document shall have no effect. Each Party represents and warrants to the other that: (i) it has full power, authority, and legal right to execute, deliver, and perform this Agreement, (ii) each signor is duly authorized and has legal capacity to execute and deliver this Agreement and (iii) this Agreement constitutes the legal, valid, and binding obligation of the Parties, enforceable in accordance with its terms.
10.14 No Third Party Beneficiaries. This Agreement is for the benefit of the Parties and their successors and permitted assigns, and (except as provide expressly elsewhere in the Agreement) does not confer any rights or benefits on any third party, including any employee of a Party, any client of a Party, or any employee of a client of a Party. Notwithstanding the above, the Parties acknowledge that all rights and benefits afforded to MRI under the Agreement shall apply equally to the owner of the T hird Party Software with respect to the Third Party Software, and such third party is an intended third party beneficiary of the Agreement, with respect to the Third Party Software.
10.15 Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the state or federal courts located in the State of Ohio to whose exclusive jurisdiction the Parties hereby consent. For purposes of establishing jurisdiction in Ohio under this Agreement, each Party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any such suit, action or proceeding is brought in an inconvenient forum.
Each Party irrevocably waive its rights to trial by jury in any action or proceeding arising out of or rel ating to this Agreement or the transactions relating to its subject matter. The Parties agree that this contract is not a contract for the sale of goods; therefore, the Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.
10.16 Legal Fees and Costs. In the event of a dispute between the Parties regarding the enforcement of the Agreement, the prevailing Party in such dispute will be entitled to collect from the other Party the prevailing Party's reasonable legal fees, expert witness fees, and costs.
10.17 Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of any Schedule, the provisions of this Master Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Master Agreement.
In the event of a conflict between an Order Document and the Master Agreement, the Master Agreement shall prevail, provided, however, that such standard variable terms such as price, quantity, license scope and License Metrics, tax exempt status, payment terms, shipping instructions and the like shall be specified on each Order Document. All pre-printed terms of any Client purchase order or other business processing document shall have no effect.
10.18 Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a Party based on the author of the document.
10.19 Counterparts. The Master Agreement and each Schedule may be executed in one or more counterparts, each of which shall constitute an
Updated April 2023 – Version 9 MRI Confidential Page 7 of 28
enforceable original of the Agreement, and that facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.
10.20 Treatment in the Event of Insolvency of Client . The Parties acknowledge and agree that this Agreement is an executory contract as such term is defined in section 365 of the United States Bankruptcy Code (“USBC”). The Parties further acknowledge and agree that the Agreement does not provide a license of intellectual property as defined in section 101(35) of the USBC and that the provisions of Section 365(n) of the USBC are therefore not applicable. Client acknowledges that MRI will be harmed if this Agreement was assigned to a competitor, direct or indirect, or any other party whose use of MRI Software or Services pursuant to the Agreement would be detrimental to the business and rights of MRI, and Client hereby grants MRI the right to consent to any proposed assignment of this Agreement in a bankruptcy and that the rights of consent to the assignment provided in section 365(c)(1) of the USBC shall be applicable to any proposed assignment of this Agreement in any bankruptcy case filed by Client.
***************************************************************************************************************************************
END OF MASTER AGREEMENT
Updated April 2023 – Version 9 MRI Confidential Page 8 of 28
SAAS SERVICES SCHEDULE
This SaaS Services Schedule is entered into between MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this SaaS Services Schedule to be effective as of the Effective Date, as defined in the Order Document.
1. DEFINITIONS
Additional defined terms specific to this Schedule:
“Error”: a material failure of a hosted MRI Software to conform to its Functional Specifications that is reported by Client to and replicable by MRI. “Malicious Code: computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
2. TERM; RENEWAL; TERMINATION.
2.1 Term and Renewal. SaaS Services commence on the date specified in the Order Document and continue for the term set forth in the Order Document (“Initial Term”). Following the end of the Initial Term, SaaS Services shall automatically renew for the same length as the Initial Term (each renewal a “Renewal Term”) unless either Party gives written notice at least sixty (60) calendar days’ prior to the end of the Initial Term or any Renewal Term, as applicable, of its intention to not renew the SaaS Service. F or all Renewal Terms, Client shall be required to migrate to the then latest Upgrade of the hosted Software. The pricing for the first twelve (12) months of any Renewal Term shall be provided by MRI in writing no less than ninety (90) calendar days’ prior to the end of the Initial Term or any Renewal Term. Notice to not renew the Initial Term or any Renewal Term shall be given in accordance with section
10.8 of the Master Agreement and shall be deemed given upon delivery to the non-cancelling Party. For t he purposes of the pricing notice in this Section, email or first-class mail will suffice. The Initial Term and Renewal Term s are collectively referred to as the “Term”.
2.2 Termination. This Schedule may be terminated for cause by either Party in accordance with Section 9 of the Master Agreement. Sections 1 and 2 hereof and the surviving provisions of the Master Agreement shall survive expiration or termination of this Schedule. Upon termination of the SaaS Services, and provided Client is not in breach of any of its obligations under the Agreement, MRI will, upon Client’s written request and payment of the applicable fees, provide a backup copy of Client’s Data (a then- current fee schedule will be provided upon request).
3. GRANT OF USE
Subject to the timely payment of the applicable fees, the terms of this Schedule and the Master Agreement, MRI grants to Client, for the Term, the right to access and use the SaaS Services, as more fully described in the Order Document, solely for Client’s internal business purposes. Such access and use is subject to the terms of the Master Agreement, including without limitation the restrictions set forth in Section 6.2 of the Master Agreement.
SaaS Services purchased may be accessed by or used to manage no more than the number of License Metrics specified in the Order Document. Additional License Metrics may be purchased under an additional Order Document at the pricing in effect at the time the additional License Metrics are added, prorated for the remainder of the then- current Term. The added License Metrics shall have the same term as the then applicable Term. Unless stated otherwise in the Order Document, fees are based on Services and License Metrics purchased and not actual usage.
4. SERVICES
4.1 SaaS Environment. Client is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the SaaS Services, including but not limited to Client’s Internet access.
4.2 SaaS Service Availability. MRI shall use commercially reasonable efforts to make the SaaS Services available twenty-four (24) hours a day, seven (7) days a week, except for: (a) Scheduled Maintenance; (b) Client Error Incidents; (c) Emergency Maintenance; (d) any unavailability caused by circumstances beyond MRI’s reasonable control, including without limitation, Force Majeure Events; and (e) Internet service provider failures or delays.
Scheduled Maintenance is defined as any maintenance performed during MRI’s then-current standard maintenance windows and any other maintenance of which Client is given at least eight (8) hours’ advance notice and which may, at MRI’s discretion, be provided via a SaaS Services posting . MRI may perform maintenance on some or all of the SaaS Service in order to upgrade hardware or software that operates or supports the SaaS Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the SaaS Service. Client Error Incident is defined as any SaaS Service unavailability related to Client’s applications, Client Data, or Client’s equipment, or the acts or omissions of any user of the SaaS Service.
Emergency Maintenance means downtime of the SaaS Service due to the application of urgent patches or fixes, or other urgent maintenance, or as recommended by MRI’s vendors, that is performed outside of Scheduled Maintenance.
Client acknowledges that MRI does not control the transfer of data over telecommunications facilities, including the Internet. MRI does not warrant secure operation of the SaaS Services or that it will be able to prevent third party disruptions of such Services. Client acknowledges further that the SaaS Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. MRI is not responsible for any delays, delivery failures, or other damage resulting from such problems.
4.3 Maintenance and Support Services. Subject to Client’s timely payment of applicable SaaS Services fees, MRI will provide to Client the Maintenance and Support services for the Maintenance and Support plan indicated in the Order Document, under MRI’s Maintenance and Support policies in effect at the time the Services are provided for the level of Services ordered. MRI shall manage and install all Updates and Upgrades of the hosted Software.
Updates are provided when and if available, and MRI is under no obligation to develop any future programs or functionality. MRI is under no obligation to provide Maintenance and Support with respect to: (i) Software that has been altered or modified by anyone other than MRI or its licensors; (ii) a release for which Maintenance and Support has been discontinued; (iii) Software used other than in accordance with the Documentation; (iv) discrepancies that do not significantly impair or affect the operation of the SaaS Services; (v) any systems or programs not supplied by MRI; or (vi) Configurations.
For the avoidance of doubt, Updates provided under Maintenance and Support services do not include custom development, Upgrades, or Configurations regardless of whether such Configurations are performed by MRI or by Client.
Updated April 2023 – Version 9 MRI Confidential Page 9 of 28
MRI reserves the right to charge Client for any reintegration work required to make Configurations compatible with future versions/releases.
If an Error was corrected or is not present in a more current version of the Software, MRI shall have no obligation to correct such Errors in prior versions of the Software.
Subject to timely payment of the applicable fees, Maintenance and Support is provided for all Software, unless otherwise noted in the Order Document; provided, however, that with respect to Third Party Software, MRI’s obligation is limited to using commercially reasonable efforts to obtain Maintenance and Support from the third party owner of such Software.
4.4 Backups and Restoration Services. Provided Client is not otherwise in breach of the Agreement, MRI will provide backup copies and/or database restoration, upon written request and subject to Client ’s payment of applicable fees for such service (a then- current fee schedule will be provided upon request).
4.5 Exclusions. Fees for SaaS Services do not include implementation, training and other Professional Services, such as project management, conversion, report writing, and external systems interface development. It is Client’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Client to effectively use the SaaS Services. Failure to do so could result in increased service call fees if such service calls are deemed excessive as a result of insufficient training, at MRI’s discretion.
5. CERTAIN OBLIGATIONS
5.1 Passwords; Security. Client is responsible for maintaining the confidentiality of all pa sswords and for ensuring that each password is used only by the authorized user. Client is entirely responsible for any and all activities that occur under Client's account. Client agrees to immediately notify MRI of any unauthorized use of Client's account or any other breach of security known to Client. MRI shall have no liability for any loss or damage arising from Client's failure to comply with these requirements. MRI will maintain Client passwords as confidential and will not disclose them to third parties.
5.2 Client Data. Client shall be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which it acquired Client Data.
5.3 Acceptable Use. Client acknowledges and agrees that MRI does not monitor or police the content of communications or data of Client or its users transmitted through the Services, and that MRI shall not be responsible for the content of any such communications or transmissions. Client shall use the Services exclusively for author ized and legal purposes, consistent with all applicable laws and regulations. Client agrees not to post or upload any content or data which (a) is libellous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains Malicious Code; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law. Client further agrees not to interfere or disrupt networks connected to the Services, not to interfere with another entity's use and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the SaaS Services. Client shall be responsible for obtaining any necessary licenses, permits, and consents for MRI with respect to the installation, maintenance, and access to the System. MRI may remove any violating content posted on the Services or transmitted through the Services, without notice to Client. MRI may suspend or terminate any user’s access to the SaaS Services upon notice in the event that MRI reasonably determines that such user has violated the terms and conditions of this Schedule.
6. WARRANTIES AND DISCLAIMER
6.1 Limited Warranty. During the Term, MRI warrants that the hosted MRI Software supplied to Client as part of the SaaS Services will be free of Errors.
6.2 Remedies. If the hosted MRI Software does not perform as warranted, MRI shall use commercially reasonable efforts to c orrect such Errors, as Client's exclusive remedy for any claim under this warranty. Client shall promptly notify MRI in writing of its claim. Provided that such claim is determined by MRI to be MRI’s responsibility, MRI shall, within thirty (30) days of its receipt of Client's written notice, (i) correct such Error; (ii) provide Client with a plan reasonably acceptable to Client for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from MRI, then MRI or Client may terminate the affected SaaS Service, and Client will be entitled to a refund of the pre-paid portion of the fees paid for the affected SaaS Service. The preceding warranty cure shall constitute MRI’s entire liability and Client's exclusive remedy for cure of the warranty set forth herein. If Client elects not to terminate the SaaS Service, Client waives all rights for the applicable warranty cure set forth herein.
6.3 Exclusions. MRI is not responsible for any claimed breach of any warranty set forth in Section 6.1 caused by: (i) modifications made to the hosted MRI Software by anyone other than MRI; (ii) the combination, operation or use of the hosted MRI Software with any items not certified by MRI; (iii) MRI’s adherence to Client’s spe cifications or instructions; (iv) Errors caused by or related to internet connections; (v) Client deviating from the hosted MRI Software operating procedures described in the Documentation; or (vi) Errors caused by Configurations.
***************************************************************************************************************************************
END OF SAAS SERVICES SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 10 of 28
LIMITED SOFTWARE LICENSE AND MAINTENANCE AND SUPPORT SCHEDULE
This Limited Software License and Maintenance and Support Schedule is entered into between MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Limited Software License and Maintenance and Support Schedule to be effective as of the Effective Date, as defined in the Order Document.
1. DEFINITIONS
Additional defined terms specific to this Schedule:
“Certified Operating Environment” or “COE” means hardware, operating system, middleware, database products and other software on which the Software will operate, as set forth on www.mrisoftware.com/COE which may be updated from time to time by MRI upon posting new COE requirements at such web page address.
“Delivery Date” means (i) for electronic delivery: the date(s) on which each MRI Software is made available to Client for electronic download on MRI’s FTP site; or (ii) for physical delivery: the date(s) on which the Software, as contained in a physical media, is delivered to the common carrier for shipment to Client; whichever such date occurs first.
“Error” means a material failure of the MRI Software to conform to its Functional Specifications that is reported by Client to and replicable by MRI. “Territory” means the certain geographic areas, specified in the Order Document, in which the Software may be used.
2. LICENSE
2.1 License Grant. Subject to the terms and conditions of this Schedule, the Order Document and the Master Agreement including without limitation the restrictions set forth in Section 6.2 of the Master Agreement and timely payment of the applicable fees, MRI hereby grants to Client a limited, non- exclusive, personal, non-sublicensable, and non-transferable license for the Term of this Agreement (subject to MRI’s termination rights as set forth herein) to (i) install, run and use the Software listed in the Order Document in the COE and in the Territory, solely for Client’s own business operations and solely as enabled by the license keys, and (ii) use the Documentation in connection with such use of the Software. The Software shall not be simultaneously loaded and operated on more than one hardware platform. Upon timely payment of all fees, Client shall receive an annual license key refresh.
The Software may be accessed by or used to manage no more than the number of License Metrics specified in the Order Document. Additional License Metrics may be purchased under an additional Order Document at the pricing in effect at the time the additional License Metrics are purchased. Unless stated otherwise in the Order Document, fees are based on License Metrics purchased and not actual usage.
2.2 Third Party Software. Use of the Third Party Software, if any, is subject to all terms and conditions of the applicable Third Party EULA, if any.
Client shall use the Third Party Software solely in conjunction with the MRI Software and Client shall have no broader use rights with respect to the Third Party Software than it has to the MRI Software.
2.3 Copies. Notwithstanding any other provision in the Agreement, the license grant in Section 2.1 herein is for one (1) production copy and up to two (2) back-up copies. The back-up copies may be used by Client for testing, back- up or other non-production purposes. Client shall not use the back-up copies or any other copy of the Software for production purposes. If MRI determines, in its reasonable discretion, that Client is using multiple production copies in violation of the Agreement, MRI may, in addition to any other remedies available to MRI under the Agreement, invoice Client the then current license fee for each additional production environment improperly in use by Client, which invoice Client shall be obligated to pay in full within thirty (30) calendar days of such invoice date. All Intellectual Property rights notices must be reproduced and included on any copies. Client shall maintain accurate and up-to-date records of the number and location of all copies of the Software and inform MRI in writing of such number and location upon request.
2.4. Delivery. Upon execution by Client; and receipt by MRI of (i) the applicable Order Document; and (ii) a purchase order from Client, a downloadable machine- readable copy of the Software, the applicable downloadable license keys, and a downloadable machine-readable copy of the Documentation shall be delivered to Client without undue delay. If Client requires physical delivery, shipment of Software, Documentation and applicable license keys is F.O.B Origin and includes one (1) production copy and one (1) back -up copy.
3. MAINTENANCE AND SUPPORT SERVICES
3.1 Subject to Client’s timely payment of applicable Maintenance and Support fees, MRI will provide to Client the Maintenance and Support services for the Maintenance and Support plan indicated in the Order Document during the specified period. All licenses in Client’s possession must be supported under the same Maintenance and Support plan.
3.2 Updates are provided if and when available and MRI shall notify Client of the availability of such Updates solely by posting such Updates on MRI’s client support portal. MRI is under no obligati on to develop any future programs or functionality. MRI is under no obligation to provide Maintenance and Support with respect to: (i) Software that has been altered or modified by anyone other than MRI or its licensors; (ii) a release for which Maintenance and Support has been discontinued; (iii) Software used other than in accordance with the Documentation or other than on a COE; (iv) discrepancies that do not significantly impair or affect the operation of the Software; (v) any systems or programs not supplied by MRI; or (vi) Configurations.
For the avoidance of doubt, Updates provided under Maintenance and Support services are subsequent maintenance releases to the standard MRI Software, excluding Upgrades, custom development or Configurations regardless of whether such Configurations are performed by MRI or by Client, Client User or a third party. MRI reserves the right to charge Client for any reintegration work required to make Configurations compatible with future versions/releases.
If an Error was corrected or is not present in a more current version of the Software, MRI shall have no obligation to correct such Errors in prior versions of the Software.
3.3 Subject to timely payment of the applicable fees, Maintenance and Support is provided for all Software, unless otherwise noted in the Order Document, provided however that with respect to Third Party Software, MRI’s obligation is limited to using commercially reasonable efforts to obtain Maintenance and Support from the third party owner of such Software.
3.4 Maintenance and Support starts on the Effective Date and continues through the expiration of the initial term set forth in the Order Document (“Initial
Updated April 2023 – Version 9 MRI Confidential Page 11 of 28
Term”). Following the end of the Initial Term, Maintenance and Support and the license grant under Section 2.1 shall automatically renew for the same length as the Initial Term (each renewal a “ Renewal Term”), unless either Party gives written notice at least sixty (60) calendar days prior to the end of the Initial Term or any Renewal Term, as applicable, of its intention to not renew Main tenance and Support and the license grant. The pricing for the first twelve (12) months of any Renewal Term shall be provided in writing by MRI no less than ninety (90) days prior to the end of the Initial Term or any Renewal Term. Notice to not renew the Initial Term or any Renewal Term shall be given in accordance with section
10.8 of the Master Agreement and shall be deemed given upon delivery to the non-cancelling Party. For purposes of the pricing notice in this Section only, email or first -class mail will suffice. The Initial Term and Renewal Terms are collectively referred to as the “Term”.
3.5 In the event that Client’s Maintenance and Support is not renewed and is later reinstated, a reinstatement fee shall be assessed equal to 120% of the aggregate Maintenance and Support fee that would have been payable during the period of lapse. In order to reinstate Maintenance and Support, Client must Upgrade its Software to the most current release and pay for any applicable Upgrade fees.
3.6 If ordered by Client, Maintenance and Support must be ordered for all Software and all associated License Metrics licensed by Client and its Affiliates.
Client may not purchase or renew Maintenance and Support for less than all of the Software licensed by Client.
3.7 Fees for Maintenance and Support do not include implementation, training and other Professional Services, such as project management, conversion, report writing, and external systems interface development.
3.8 It is Client’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Client to effectively use the Software.
Failure to do so could result in additional Maintenance and Support fees if service requests are deemed excessive as a result of i nsufficient training, at MRI’s discretion.
3.9 The System will need to be installed on Client’s servers and technology infrastructure. If utilizing Professional Services or Maintenance and Support in the installation of the System, Client shall ensure that MRI’s assigned technical personnel are able to access the System remotely. Client shall be responsible for providing access through any security measures it deems necessary. MRI alone shall decide whether access to the System is sufficient for Maintenance and Support purposes. Certain functionality of the System may require connections to or interaction with MRI after such System is running on Client’s infrastructure, and Client agrees to permit and facilitate such connections and interaction. “ System” means the total complement of hardware and Software furnished and/or maintained by MRI.
4. WARRANTIES AND DISCLAIMERS
4.1 Limited Warranty. MRI warrants that, for a period of thirty (30) calendar days from the Delivery Date of the initial version of the MRI Software, the MRI Software, as updated and used in accordance with the Documentation and in the COE, will be free of Errors.
4.2 Remedies. If the MRI Software does not perform as warranted, MRI shall use commercially reasonable efforts to correct such Errors, as Client's exclusive remedy for any claim under this warranty. Client shall promptly notify MRI in writing of its claim within the warranty period. Provided that such claim is determined by MRI to be MRI’s responsibility, MRI shall, within thirty (30) days of its receipt of Client's written notice, (i) correct such Error; (ii) provide Client with a plan reasonably acceptable to Client for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from MRI, then MRI or Client may terminate the affected MRI Software license and Client will be entitled to a refund of the license fees paid for the affected MRI Software. The preceding warranty cure shall constitute MRI’s entire liability and Client's exclusive remedy for cure of the warranty set forth herein. If Client elects not to terminate the license for the affected portion of the MRI Software, Client waives all rights for the applicable warranty cure set forth herein.
4.3 Exceptions. MRI is not responsible for any claimed breach of any warranty set forth in this section caused by: (i) modifications made to the MRI Software by anyone other than MRI; (ii) the combination, operation or use of the MRI Software with any items that are not part of the COE; (iii) Client’s failure to use any new or corrected versions of the MRI Software made available by MRI; (iv) MRI’s adherence to Client’s specifications or instructions; (v) Client deviating from the MRI Software operating procedures described in the Documentation or (vi) Errors caused by Configurations.
4.4 Third Party Software. MRI warrants that it is an authorized distributor of the Third Party Software.
5. TERMINATION
5.1. This Schedule and the licenses granted hereunder may be terminated by either Party for cause in accordance with section 9 of the Master Agreement.
Section 1 and 5 hereof and the surviving provisions of the Master Agreement shall survive any such termination.
***************************************************************************************************************************************
END OF LIMITED SOFTWARE LICENSE AND MAINTENANCE AND SUPPORT SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 12 of 28
SPRINGBOARD SERVICES SCHEDULE
This Springboard Schedule (this “Schedule”) is entered into between MRI Software LLC (“MRI”) and the Client named in the attached Order Document. References to this Schedule shall be deemed to include the terms and conditions of the Master Agreement or any other such governing agreement between MRI and Client; provided, however, if any terms and conditions of the Master Agreement or governing agreement conflict with those contained in this Schedule, then this Schedule shall control. As used in this Schedule, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI. All capitalized terms used and not defined in this Schedule shall have the meanings ascribed to them in the Master Agreement.
1. DEFINITIONS
“Hardware” the physical equipment provided to the Client by MRI or its licensors, including without limitation, cameras, iPads, and scanners. “System” means the total complement of hardware and Software furnished and/or maintained by MRI.
2. TERMINATION
This Schedule may be terminated for cause by either Party in accordance with Section 9 of the Master Agreement.
3. FOOTFALL COUNTING CLIENT OBLIGATIONS
3.1 Client shall (i) provide MRI and/or its authorized representatives with reasonable access to the premises and f urnish such information as MRI may reasonably request from time to time as necessary for MRI’s performance of the Services and (ii) reasonably cooperate with the MRI in providing the Services. Client acknowledges that MRI’s performance of the Services is dependent in part on the Client’s cooperation and assistance. Any failure or delay in MRI’s performance under the Agreement shall be excused and MRI shall have no liability if such failure or delay was caused by the Client’s failure to provide cooperation or assistance in a timely manner. Client shall put into place conspicuous signage informing nearby persons of the use of cameras.
Such signage must be reasonably understood to apply to all areas where the cameras could detect activity. Client shall not install or adjust any cameras utilizing the footfall offering in a way that captures locations which would not reasonably be understood to be covered by the aforementioned signage. Client shall not install or adjust any cameras utilizing the footfall offering in a way that captures locations in which a reasonable person would expect privacy. Such restriction applies to all cameras utilizing the footfall technology, whether provided by MRI, MRI’s licensors or provided by the Client.
3.2 Client shall grant to MRI a non-exclusive, royalty free license to use the Client Data and results of the footfall offering for benchmarking purposes available in the market. Client shall be responsible for obtaining all necessary licenses, permits, and consents for MRI with respect to the installation, maintenance, and access to the System at the Property.
3.3 Client must from time- to-time permit MRI, its personnel and/or its duly authorized representatives’ reasonable access and use of the premise, Client equipment and/or facilities for the purpose of providing the SaaS Services. MRI and its authorized representatives shall access the premises under this Agreement solely for the purposes of providing the Services and shall provide such on-site services in a professional and workmanlike manner. MRI personnel and its authorized representative shall comply with all health and safety rules and regulations and any other reasonable security requirements which Client has given MRI notice of applicable to its presence at the premises.
3.4 If the Property, Client equipment and/or facilities are located at a third party’s premises, Client shall promptly procure the grant of a license from such third party to MRI, permitting MRI, its personnel and/or its duly authorized representatives to enter upon such premises for the purpose of providing the Services.
3.5 Client shall give immediate written notice to MRI in the event of any loss, accident or damage to the Hardware;
3.6 Client shall make no alteration to the Hardw are nor remove any existing component(s) from the Hardware without the prior written consent of MRI unless carried out to comply with any mandatory modifications required by law or any regulatory authority, in which case Client shall notify MRI as soon as reasonably practicable and allow MRI to make such modification itself;
3.7 Client shall not move nor attempt to move any part of the Hardware without MRI’s prior written consent;
3.8 Client shall not attach, cause to be attached, or permit to be attached the Hardware to any land or building or otherwise in a permanent or immovable manner. Client acknowledges that it shall be responsible for all repairs required as a result of such attachment.
3.9 Client shall comply with all reasonable safety and usage instructions provided by MRI as may be necessary to ensure that the Hardware is always safe and without risk to health when it is being used by a person for or on behalf of Client;
3.10 In the event that an MRI representative is required to visit a premises to perform any of the Services, MRI shall be entitled to charge the Client for travel expenses, materials, and any access fees; and
3.11 Client shall keep MRI fully informed of all material matters relating to the System.
4. HARDWARE
If the Client purchased Hardware from MRI under an applicable Order Document for SaaS Services, then the terms of this section 4 shall apply.
4.1 Purchases. The Client acknowledges that the fees outlined in the Order Document do not include shipping costs and the Client may be charged the shipping fees related to the Hardware products which it purchases. Upon the execution of an Order Document outlining the purchase of Hardware products, MRI or MRI’s authorized representative and/or hardware provider, shall deliver the Hardware products to the Client. In the event that the purchased Hardware product is not promptly available, MRI may (i) switch the purchased Hardware product with a comparable product at no additional cost to the Client; (ii) notify the Client of the unavailability of the Hardware product and work together in good faith to resolve the unavailability; or (iii) terminate the SaaS Services and Hardware product portion of the applicable Order Document upon notice to the Client. Client specifically authorized MRI to provide the Client’s Confidential Information to MRI’s authorized representative and/or hardware provider, including without limitation, contact information of the Client and its employees.
4.2 Limited Hardware Warranty. Any warranties listed in the Master Agreement or Schedules shall not apply and this warranty contained within this Section 4.2 shall apply to hardware purchases.
MRI warrants that for a period of one (1) year from the date the Hardware is provided to the Client, that the Hardware will be free from material defects under normal and proper use. This warranty will be void if, in in MRI’s reasonable opinion, the defect was caused in whole or part by: (a) improper handling, use, operation, or testing by anyone other than MRI or its licensors; (b) failure to properly install or maintain the Hardware by anyone other than MRI of its licensors; (c) modification, alteration, or unauthorized repair by anyone other than MRI or its licensors; (d) use with products or components that are
Updated April 2023 – Version 9 MRI Confidential Page 13 of 28
incompatible with MRI’s services; (e) Force Majeure events or acts of vandalism, sabotage, or hacking; (f) any other cause beyond normal usage in accordance with MRI’s written instructions; or (g) defects outside of MRI’s reasonable control. Seller’s liability for breach of this hardware warranty will be limited to replacement, repair, or refund, in MRI’s sole discretion, of any defective Hardware that have been properly stored, installed, used, and maintained, and have not been damaged in transit; provided that Client returns such Hardware to MRI without further damage, within (14) days of discovery of the alleged defect and subject to confirmation of the defect by MRI’s inspection.
The Hardware war ranty outlined in this Section 4 shall exclude any defects related to the MRI Software, Professional Services. MRI’s entire liability and Client’s exclusive remedy for this warranty will be limited to replacement or repair in MRI’s sole discretion, of any defective Hardware; provided MRI is notified as soon as reasonably practicable, but not more than five (5) days after of discovery of the alleged defect and subject to confirmation of the defect by MRI.
4.3 Hardware Access. Client must take all necessary steps to ensure that MRI may enter premises and install or recover the Hardware both during the Term of this Agreement and for a reasonable period thereafter. This shall include procuring from any person having an interest in such Property, a waiver in writing and in favor of MRI of any rights such person may have or acquire in the System and a right for MRI to enter Property to remove the System. Client shall indemnify MRI on demand against all losses, costs, charges, damages, and expenses incurred as a result of the installation or removal of the System except to the extent that such losses, costs, charges, damages and expenses result from a failure by MRI or its personnel to take due care and to comply with all reasonable instructions of the owner of the Property.
4.4 Hardware Return. Upon termination or cancellation of the SaaS Services which utilize the footfall offering, Client agrees to immediately return any Hardware provided by MRI or its representatives. Any Hardware not returned within thirty (30) days shall be subject to additional fees.
5. LIABILITY
Client assumes sole responsibility for results obtained and the conclusions drawn from the use of the Services. MRI shall have no liability for any actions taken at Client’s direction.
6. OWNERSHIP OF THE HARDWARE AND SYSTEM
6.1 The System shall at all times remain the property of MRI, and Client shall have no right, title or interest in or to the System except as otherwise provided in the Agreement.
6.2 Risk in the System shall pass to Client either: (a) the date of installation by MRI; or (b) delivery to Client in the event that MRI is not performing Professional Services for Client. Client shall be required to obtain and maintain insurance in respect of any loss or damage caused to the System by a third party. The foregoing shall be applicable for the Term of the Agreement and until such time as the System is collected by or redelivered to MRI. ***************************************************************************************************************************************
END OF SPRINGBOARD SERVICES SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 14 of 28
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule is entered into between MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Professional Services Schedule to be effective as of the Effective Date, as defined in the Order Document.
1. SERVICES
1.1 Work Authorizations/Statements of Work. MRI will perform the mutually agreed upon Professional Services for Client described in one or more work orders, work authorizations, statements of work or Order Documents (individually and collectively an “ SOW”) as the parties may agree to in writing from time to time. Each SOW, once executed by the authorized representatives of the parties, shall become a part of the Agreement. Except as expressly stated elsewhere in this Schedule, in the event of a conflict between the terms of this Schedule and the terms of a SOW, the terms of this Schedule shall prevail.
1.2 Change Orders. Either party may propose a change order to add to, reduce or change the Professional Services ordered in the SOW. Each change order shall specify the change(s) to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to MRI, due to the change. Once executed by both parties, a change order shall become a part of the SOW.
1.3 Costs. Professional Services shall be provided on a time and materials (“T&M”) basis at MRI’s T&M rates in effect at the time the Professional Services are performed, unless otherwise specified in the applicable Statement of Work. On a T&M engagement, if an estimated total amount is stated in the applicable SOW, that amount is solely a good faith estimate for Client's budgeting and MRI’s resource scheduling purposes and not a guarantee that the work will be completed for that amount. If Client wishes the MRI personnel to perform Professional Services at Client’s site, Client agrees it shall give MRI at least two (2) weeks’ prior notice so MRI can make appropr iate travel arrangements.
Professional Services performed at Client’s site shall be billed to Client in minimum increments of eight (8) hours per day per MRI employee. Fees are based on services, including training services, provided during normal MRI business hours, Monday through Friday, 8:00 a.m. - 7:00 p.m. local time (MRI holidays excluded). Professional Services provided by MRI outside of normal MRI business hours will be subject to a premium service charge of one and one- half of the standard MRI li st price for such services. Except as otherwise provided in Section 4.1 herein with respect to training services, if Client cancels a Professional Services engagement specified in an approved SOW less than ten (10) business days before the scheduled start date for such Professional Services, Client shall pay twenty-five percent (25%) of the total estimated costs for Professional Services scheduled for performance between five (5) and ten (10) business days of MRI’s receipt of Client’s cancellation and fifty percent (50%) of any Professional Services scheduled for performance within five (5) business days of such receipt.
1.4 Delays/Costs Overruns. In the event of any delay in Client’s performance of any of the obligations set forth herein or any other delays caused by Client, the milestones, fees and date(s) set forth in the SOW shall be adjusted on a T&M basis as reasonably necessary to account for such delays, and the adjustment shall be made by change order in accordance with the provisions of Section 1.2 above.
2. PROJECT MANAGEMENT
2.1 Responsibility. MRI shall be responsible for securing, managing, scheduling, coordinating and supervising MRI personnel, including its subcontractors, in performing the Professional Services.
2.2 Cooperation. Client shall provide MRI with good faith cooperation and access to such information, facilities, personnel and equipment as may be reasonably required by MRI in order to provide the Professional Services, including, but not limited to, providing security access, information, and software interfaces to Client’s applications, and Client personnel, as may be reasonably requested by MRI from time to time. Client acknowledges and agrees that MRI’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities hereunder and timely decisions and approvals of Client in connection with the Professional Services. MRI shall be entitled to rely on all decisions and approvals of Client.
2.3 Subcontractors. MRI may subcontract or delegate any work under any SOW to any third party without Client’ s prior written consent; provided, however, that MRI shall remain responsible for the performance, acts and omissions of any such subcontractors.
2.4 Client Data. Client Data must be provided to MRI in a format approved by MRI or additional charges will apply. Client is responsible for the accuracy and completeness of its information and Client Data. MRI’s performance is dependent on Client’s timely provision of accurate and complete resources and information, including but not limited to detailed, precise and clear specifications for any deliverables.
2.5 Access. For installation of the System and for any Support of the System, Client shall ensure that MRI’s assigned technical personnel are able to access the System remotely. Client shall be responsible for providing MRI access through any Client security measures. MRI alone shall decide whether access to the System is sufficient for installation purposes. Certain functionality of the System may require connections to or interaction with MRI after such System is running on Client’s infrastructure, and Client agrees to permit and facilitate such connections and interaction. .
If the Parties agree to Services on -site, then Client shall provide MRI and/or its authorized representatives with reasonable, legal, and safe access to the Client’s premises and furnish such information as MRI may reasonably request from time to time as necessary for MRI’s performance of the Services . MRI and its authorized representatives shall access the Client’s physical premises under this Agreement only if agreed between the Parties and solely for the purposes of providing the Services . While providing Services on Client’s premises, MRI personnel and its authorized representative shall comply with applicable laws and reasonable security requirements which Client has given MRI notice of and which relate to the Professional Services being delivered on site
2.6 Testing of Projects. Client shall test any deliverables, and notify MRI of all deficiencies relative to the applicable specifications for such work set forth in the applicable SOW within thirty (30) calendar days following MRI’s delivery of such deliverables to Client (“ Notification Period”). Subject to Client’s timely notification and provided that the deficiencies are MRI’s responsibility, MRI will re-perform the applicable Professional Services as required to meet the applicable specifications at no additional charge.
3. LICENSE AND OWNERSHIP
3.1 Ownership. Without prejudice to the provisions of Section 6 (Limited Rights and Ownership) of the Master Agreement, all Intellectual Property including all copies thereof in any Software, other products furnished by MRI and the results of the Professional Services performed by MRI including (without limitation) all deliverables, documentation, training materials, Configurations and all Intellectual Property embodied therein shall, subject to Section 3.2 below, vest solely and absolutely in MRI or its licensors. MRI may access the System remotely in order to copy Configurations to the Software or to otherwise ensure Client’s compliance with the terms of this Section 3.1 and the Agreement.
Updated April 2023 – Version 9 MRI Confidential Page 15 of 28
3.2 Limited License. MRI grants Client, upon full payment of the applicable fees and charges, during the Term and subject to the restrictions set forth in Section 6.2 of the Master Agreement, a personal, nontransferable, nonexclusive, nonsublicensable, limited license to use the deliverables solely for Client’s own internal business needs.
4. SUPPLEMENTAL TERMS FOR TRAINING SERVICES
4.1 General. “Training Courses” are defined as: classroom-based, live virtual, and/or self-paced e-learning courses provided by MRI’s training division called MRI Learning Solutions. Training Courses and their respective prices, policies and schedules are subject to change without notice. Training Courses shall be provided by MRI to Client pursuant to the terms of an SOW. “Named Users” as used herein are defined as Client Users listed in the SOW that shall be eligible to receive Training Courses.
4.2 Cancellation and Transfer Policies.
4.2.1 Client Training Course Cancellation Policy. “Client Training Courses” means non-publicly offered Training Courses delivered specifically for Client and held at a mutually agreed upon time and location. Client Training Courses may be delivered in a physical classroom at a location determined by mutual agreement or through a live virtual classroom. Details regarding delivering Client Training Courses shall be set forth in an approved SOW. For Client Training Courses to be provided at an onsite classroom that are canceled by Client: (i) ten (10) or more business days prior to the course start date, MRI will provide a full refund or credit; or (ii) within the ten (10) business day period before the course start date, fifty percent (50%) of the course fee will be forfeited and MRI will provide the remainder as a refund or credit.
4.2.2 Physical Classroom Public Training Course Cancellation Policy. “Public Training Courses” means publicly offered Training Courses that are not delivered specifically for Client. Public Training Courses may be delivered in a physical classroom or through a live virtual classroom. Registered attendees for a physical classroom Public Training Course who cancel less than ten (10) business days prior to the course start date will forfeit all applicable Training Course fees; however, transfers to another person are permitted up to one (1) business day prior to the course start date. In order to transfer a physical classroom Public Training Course attendance spot, contact MRI Learning Solutions at 1.800.321.8770 ext. 1 or email [email protected]. MRI reserves the right to cancel any physical classroom Public Training Course class up to ten (10) business days prior to the course start date for any reason. If MRI cancels a physical classroom Public Training Course class and is unable to reschedule the attendee, MRI will refund to such attendee all applicable Training Course fees. MRI assumes no responsibility for non-refundable airline tickets or other expenses that may be incurred due to cancellation of a physical classroom Public Training Course.
4.2.3 Live Virtual Classroom Public Training Course Cancellation Policy. Registered attendees for a live virtual classroom Public Training Course program will receive a web-conferencing invitation on the day prior to the start of the program. Registered attendees who cancel less than twenty-four (24) hours before the scheduled start date and time will not be refunded any applicable Training Course fees. However, transfers to another person are permitted up to the starting time of the program. In order to transfer a live virtual classroom Public Training Course attendance spot, contact MRI Learning Solutions at
1.800.321.8770 ext. 1 or email [email protected]. MRI reserves the right to cancel any live virtual classroom Public Training Course class for any reason. If MRI cancels a live virtual classroom Public Training Course class and is unable to reschedule the attendee, MRI will refund to such attendee all applicable Training Course fees.
4.2.4 Self-Paced e- Learning Training Course Cancellation Policy. “Self-Paced e- Learning Tr aining Courses” means publicly offered Training Courses that have no set time or location, and can be taken by any person at any time at the MRI Learning Solutions website. Self -Paced e-Learning Training Courses are non-cancelable and applicable fees are non-refundable. All sales of Self-Paced e-Learning Training Courses are final and non-transferable.
4.3 Use Limitations; Monitoring. Unless otherwise explicitly agreed in writing by MRI, Client is only allowed user access rights to any Training Course up to the number of Named Users purchased as shown in an executed SOW.
Client and Named Users may not share access rights, or any Training Course content, with others and may only access the Training Course for personal training use as specifically permitted. To the extent permitted by law, MRI may monitor, suspend or terminate Client’s or any Named User’s use of any Training Course and/or training account, or terminate this Schedule or the applicable SOW, or remove or disclose Client’s or any Named User’s information in order to ensure Client’s and all Named Users’ compliance with the Agreement or to otherwise protect MRI rights or rights of others. If Client or any Named User does not comply with the restrictions set forth in this Section 4.3, Client may be charged additional fees equivalent to the resulting usage fees for the related services incurred.
4 TERMINATION
This Schedule may be terminated in accordance with Section 9 of the Master Agreement.
Where the non-breaching Party has a right to terminate this Schedule, the non- breaching Party may at its discretion either terminate this Schedule, or the applicable SOW.
Upon termination for any reason, all work products, including all drafts and works in progress of deliverables, shall be delivered to Client. Upon MRI’s receipt of a notice of termination, MRI shall cease and shall cause any agent or subcontractor to cease all work under the applicable SOW and minimize any additional costs or reimbursable expenses unless otherwise agreed in writing by the Parties.
Except as may be expressly set forth in the applicable SOW, Client shall pay MRI fees for services performed to the date of termination on a T&M basis together with any expenses reasonably incurred in connection therewith. The Parties’ obligations under this Section 5 and Section 3 of this Schedule and the surviving provisions of the Master Agreement shall surviv e any termination of this Schedule.
***************************************************************************************************************************************
END OF PROFESSIONAL SERVICES SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 16 of 28
DATA PROTECTION AND SECURITY SCHEDULE
This Data Protection and Security Schedule is entered into between MRI Software company outlined on the applicable Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Data Protection and Security Schedule to be effective as of the Effective Date, as defined in the Order Document. Capitalized terms not defined herein shall have the meaning set forth in the Agreement.
1. Definitions.
“Controller” means the natural or legal person which determines (individually or jointly or in common with others) the purposes for which and the manner in which any Client Personal Data are or will be Processed. For the purposes of this Agreement, the Client shall be deemed the Controller. Controller shall include a Business under the CCPA.
“Data Breach ” shall mean a breach of security resulting from an act or omission by MRI, its employees or its subcontractors, leading to an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed. For the purposes of this Agreement.
“Data Protection Legislation ” means any applicable laws relating to the Processing, privacy, and use of Personal Data applicable to the Parties, might can include California Consumer Privacy Act (“CCPA”).
“Personal Data” shall mean any information relating to an identified or identifiable natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person which is provided by the Client to MRI. The business information of the Client is not by itself deemed to be Personal Data, unless otherwise determined to be under applicable laws. Personal Data is deemed to be Confidential Information of Client.
“Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and “Process” and “Processed” will be interpreted accordingly.
“Processing Instru ctions” means the written instructions for Processing Client Personal Data, as set out in this Schedule and in the Agreement, and otherwise as provided in writing by or on behalf of Client to MRI or a MRI Affiliate from time to time.
“Processor” means the natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller. For the purposes of this Agreement, MRI shall be deemed the Processor.
Processor shall include a Service Provider under the CCPA.
“Sub-contractor” or “Third Party” means any third party engaged by MRI in provision of the Services or otherwise delivering any part of the Services.
2. Security
2.1. General. MRI shall ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to the Personal Data, which are appropr iate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any m easures. During the Term of the Agreement, MRI shall maintain a documented information security plan (“Information Security Program”). MRI agrees to comply with all of its own requirements contained in such Information Security Program. MRI’s Information Security Program shall include, at a minimum, appropriate controls and measures in relation to: (1) physical security at all MRI locations involved in the provision of the Services; (2) technical security with respect to the Client Data in MRI’s possession; (3) organizational security arrangements regarding the employees and other representatives of MRI, its Affiliates, and its subcontractors, including training and awareness, staff vetting procedures and other security measures (e.g. use of passwords and security credentials); (4) securing Client Data contained within the SaaS Services; (5) Disaster Recovery and Business Continuity; (6) Vulnerability Testing and Security Audit; and (7) Data Breach Procedures.
Additionally, MRI’s Information Security Progr am shall comply with all laws applicable to MRI related to its security programs. MRI may update its Information Security Program from time to time in its sole discretion. Upon the occurrence of a disaster, MRI must evaluate the cause of the disaster as soon as possible, attempt to remediate the cause, and, if the outage will be sustained or cannot be remediated promptly, take appropriate actions to minimize the impact of the Disaster to the Client, such as implementing the Disaster Recover/Business Continuity Plan. Client shall not be charged an additional fee for any disaster recovery services, including backups and database restorations, performed by MRI due to a Disaster (whether at the MRI hosting location, within the SaaS Services or otherwise). MR I shall evaluate the effectiveness of its Information Security Program on a commercially reasonable periodic basis, but no less frequently than annually and (if it, acting reasonably, considers it necessary to do so) update the same.
2.2. Disaster Recovery and Business Continuity. MRI shall implement and maintain a disaster recovery plan with contingency measures as are reasonable within its industry in light of the sensitivity of the Services which MRI provides (the "Disaster Recovery/Business Continuity Plan").
Upon the occurrence of a Disaster, MRI must promptly evaluate the cause of the Disaster, attempt to remediate the cause and, if the outage will be sustained or cannot be remediated promptly, then it will promptly implement the Disaster Recovery/Business Continuity Plan. Client shall not be charged an additional fee for any disaster recovery services, including backups and database restorations, performed by MRI due to a Disaster (whether at the MRI hosting location, within the SaaS Services or otherwise). MRI shall evaluate the effectiveness of its Disaster Recovery/Business Continuity Plan on a commercially reasonable periodic basis, but not less frequently than annually. MRI may modify the Disaster Recovery/Business Continuity Plan from time to time, in its sole discretion, provided that such modifications do not materially and negatively modify the services provided in the Disaster Recovery/Business Continuity Plan as of the execution of this Agreement.
2.3. Vulnerability Testing and Security Audit. MRI shall conduct regular penetration and vulnerability testing of its information technology infrastructure and networks, at a commercially reasonable frequency. Upon Client’s request, MRI shall provide a letter of attestation to Client that the testing occurred. MRI may modify the scope of such penetration and vulnerability testing provided however, that the scope shall not materially and negatively change from the execution of this Agreement. During the Term of
Updated April 2023 – Version 9 MRI Confidential Page 17 of 28
the Agreement, MRI shall comply with industry standard practi ces for audit and security procedures.
2.4. Data Breach. MRI will take commercially reasonable, but not less than industry standard, measures to protect the security of such Personal Data transferred by Client to MRI. In the event that MRI becomes aware or reasonably suspects that a Data Breach involving Client’s Personal Data has occurred, MRI will without undue delay: (i) investigate the cause of the Data Breach; (ii) notify Client of the Data Breach and provide sufficient information to allow the Client to report the Data Breach and/or notify the data subject, if required; (iii) contain and remedy any Data Breach; (iv) take reasonable steps to mitigate the effects of and to minimize any damage resulting from the Data Breach; (v) reasonably assist Client in remediating or mitigating any potential damage from a Data Breach to the extent that such remediation or mitigation is within MRI’s control; (vi) take reasonable steps to restore the security and integrity of any Systems used by MRI and/or its subcontractors to provide the Services; (vii) if the Data Breach resulted from Client’s own actions the Client shall immediately, on demand, reimburse MRI for any costs incurred in relation to undertaking any of the foregoing and all costs, losses, damages, expenses or otherwise incurred by MRI to the extent that the same arise from such actions of the Client.
3. Provision of Personal Data. In addition to the terms and conditions set forth in the Agreement, Client agrees to only input into, transfer into the MRI Software and SaaS Services or provide access to MRI such Personal Data: (i) if and to the extent that Client is authorized to do so under applicable law, including obtaining any relevant consents from the Data Subject for such disclosure; (ii) if and to the extent that such Personal Data is necessary to enable MRI to provide the Services under this Agreement; (iii), and to do so only in fields specifically designed to house such Personal Data.
MRI shall have no liability to Client, and Client shall indemnify MRI f or all claims by third parties resulting from Client’s storing Personal Data in non- designated fields. Client shall remove any Personal Data from its database(s) once it is no longer necessary for that purpose and may engage MRI (at MRI’s then-current rates to assist in such deletion).
4. Data Processing. As Processor, MRI will only act upon and Process the Client’s Personal Data for the purposes of performing its obligations under the Agreement or as outlined in MRI’s Privacy Policy, subject to the Proces sing Instructions. MRI’s Privacy Policy may be found at https://www.mrisoftware.com/privacy-policy/, and may be updated from time to time by MRI. Where Client is purchasing any of MRI’s marketing products then MRI’s Web Marketing Privacy Policy shall apply which may be found at https://www.mrisoftware.com/webmarketingprivacypolicy and which may be updated from time to time. Client’s instruction to cease Processing Client Personal Data shall not alleviate Client’s obligations under the Agreement, including without limitation, its payment obligations.
Additionally, MRI shall be permitted to Process Client Personal Data, without regard for the Processing Instructions, if required to do so by Data Protection Legislation; in such case, MRI shall promptly notify the Client of that legal requirement before Processing, unless that law prohibits such notification. If MRI is ever unsure as to the parameters or lawfulness of the Processing Instructions issued by Client, MRI will, as soon as reasonably practicable, revert to Client. MRI shall comply with its obligations as a Processor under the applicable Data Protection Legislation in relation to the Processing of Client Personal Data by it under this Agreement.
5. Data Subject Requests. MRI shall, at its option and subject to the requirements of the Data Protection Legislation, (i) respond directly to the request from the Data Subject, or (ii) forward to the Client any requests from Data Subjects in respect of Personal Data pursuant to Data Protection Legislation (including the ability to correct, delete, block or port Client Personal Data and rights of access) and reasonably cooperate with the Client in complying with any such Data Subject’s exercise of his/her rights in relation to such Personal Data as is Processed by MRI. Client may be required to make such requested modifications itself within the MRI system to fulfill the data subject request. For the purposes of responding to data subject requests, MRI shall be permitted to disclose information related to the Client as it relates to the data subject request.
6. Duration of Processing. Processing of the Client’s Personal Data by MRI shall be for the Term of this Agreement, subject to restrictions outlined by Data Protection Legislati on. Any Client Data remaining within the accessible SaaS Services beyond the expiration of the Term of this Agreement, shall be permanently deleted, without notice to Client. The Parties agree that the Personal Data, may be held in back up for up to one (1) year following the expiration of the Term. Client may engage MRI to return the Client Data, at MRI’s then standard rates.
7. Scope of Personal Data. Client may provide and MRI may process the following types/categories of Personal Data for the follow ing categories of Data Subject, or as otherwise provided to MRI by the Client:
Type of Data Data Subjects Impacted
Personal Data;
Contact Details;
Financial Details;
Files, Images, or Videos;
Real estate investment
data;
Ownership data;
Related party details
Syndicators, developers and borrowers of
the Client;
Client’s employees and staff;
Client’s consultants or other professional
experts;
Client’s resident, tenants, and customers
Owners and property managers of the
Client
8. MRI personnel. MRI shall ensure that its personnel and any Subcontractors will not Process the Client’s Personal Data except in accordance with the provisions of this Schedule; and MRI will procure that the same are contractually obligated to maintain the security and confidentiality of any Client Personal Data. MRI shall take reasonable steps to ensure that the personnel Processing the Client’s Personal Data receive adequate training on compliance with this Agreement and the Data Protection Legislation applicable to the Processing.
9. Subcontractors. The Client consents to MRI utilizing any of the sub-contractors listed on MRI’s Service Providers/Subprocessor list, which may be found at www.mrisoftware.com/subprocessors. The MRI’s Service Providers/Subprocessor list may be updated by MRI from time to time without the Client’s prior approval, provided that MRI shall:(a) carry out adequate due diligence to ensure that the Sub-contractor is capable of providing the level of protection for Client Personal Data required by this Agreement; and (b) ensure that any additional or replacement Sub- contractors shall be contractually bound to obligations with respect to t he Processing of Client Personal Data substantially similar to those to which MRI is bound by this Schedule.
10. Compliance. MRI shall maintain such records and information as are necessary to demonstrate its compliance with Data Protection Legislation in relation to the Processing of Personal Data on behalf of Client under this
Updated April 2023 – Version 9 MRI Confidential Page 18 of 28
Agreement, containing as a minimum the information required under Data Protection Legislation, which shall be made available to Client upon request.
MRI shall reasonably cooperate wit h the Client in good faith to ensure compliance with its obligations under the Data Protection Legislation in respect of Personal Data taking into account the nature of Processing and the information available to MRI.
11. Order of Precedence. In case of any c onflict or inconsistency between the provisions of this Schedule and the terms of the Master Agreement, the provisions contained in this Schedule shall prevail to the extent of the inconsistency, provided always that nothing in this Schedule shall permit MRI (or any sub-Processor) to handle Personal Data in a manner which is prohibited by this Agreement or by applicable law.
12. California Terms. Notwithstanding anything to the contrary in this Agreement, the following clause shall apply for Clients processing Personal Data of data subjects located in California:
i. MRI shall not: (1) “Sell” or “Share” Personal Data as those terms are defined under Data Protection Legislation; (2) retain, use, disclose, or otherwise Process Personal Data except as necessary for the business purposes specified in the Agreement or this Schedule; (3) retain, use, disclose, or otherwise Process Personal Data in any manner outside of the direct business relationship between Client and MRI except as necessary for the business purposes specified in the Agreement or this Schedule; or (4) combine any
Personal Data with Personal Data that MRI receives from or on behalf of any other third party or collects from MRI’s own interactions with Data Subjects, provided that MRI may so combine Personal Data for a purpose permitted under Data Protection Legislation if directed to do so by Client or as otherwise expr essly permitted by the Data Protection
Legislation.
ii. MRI shall: (1) notify Client if MRI becomes aware that it is no longer able to meet its obligations under applicable Data Protection Legislation; and (2) take reasonable and
appropriate steps to help ensure that Personal Data use is consistent with Client’s obligations under applicable Data Privacy Legislation.
13. Order of Precedence. In case of any conflict or inconsistency between the provisions of this Schedule and the terms of the Master Agreement, the provisions contained in this Schedule shall prevail to the extent of the inconsistency, provided always that nothing in this Schedule shall permit MRI (or any sub-Processor) to handle Personal Data in a manner which is prohibited by this Agreement or by applicable law.
***************************************************************************************************************************************
END OF DATA PROTECTION AND SECURITY SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 19 of 28
PAYMENTS SCHEDULE
This Payments Schedule is entered into between the MRI Software company named in the associated Order Document (“ MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Payments Schedule to be effective as of the Effective Date, as defined in the Order Document.
1. DEFINITIONS
Additional defined terms specific to this Schedule:
“Banks” shall mean such Bank(s) as identified by MRI in the Onboarding Documentation, and as may be updated from time to time by MRI on notice to the Client.
“Bill Payment” means any payment initiated through the MRI RentPayment product from the Payer to the Client.
“Billing Statement” means the statement of charges provided by the Client the Payer, indicating how much is owed and the due date of the payment. “ISO/MSP” means an “independent sales organization” as defined in the Visa rules or “member service provider” as defined in the MasterCard rules. For the purposes of this Agreement and subject to the terms herein, MRI shall act as the ISO/MSP of the Bank for Payment Services.
“Merchant Processing Agreement ” means the agreement entered into between MRI and Client authorizing Bank and Payment Providers to provide payment processing services to Client which can be found at https://www.mrisoftware.com/MerchantProcessingAgreement, and may be updated from time to time by MRI.
“Onboarding Documentation” means such documentation provided by MRI to Client as part of Client’s onboarding process to the Payment Services, including any applications, forms, instructions, and any other such documentation provided for review and/or completion by Client as a prerequisite to receiving the Payment Services.
“OFAC” shall mean the United States Office of Foreign Asset Control. “Payer” means the individual who initiates payment to the Client. “Payment Instruction ” is the information provided by the Payer for a Bill Payment to be made to the Client.
“Payment Providers” means those payment providers who create the Payment Technology (as defined below) and are identified pursuant to the Merchant Processing Agreement. MRI may use any of its Payment Providers in the delivery of the MRI Payment product. Payment Providers i ncludes, as applicable, the Banks.
“Payment Services” shall mean the certain web- based services offered by MRI’s Payment Providers through MRI as further described in Section 4.1 of this Schedule. For purposes of the Master Agreement, Payment Services shall be included in the definition of SaaS Services as listed in the SaaS Services Schedule of the Order Document and as further described in the Agreement. “Payment Technology” means all of the Payment Provider’s proprietary and/or licensed technology, inc luding software, hardware, products, processes, algorithms, user interfaces, know -how, techniques, designs, documentation, and other tangible or intangible technical materials or information. “Rules” means the (i) applicable laws, rules and regulations; (ii) policies of Visa, MasterCard and other applicable card associations and the sponsoring bank(s) of MRI as they may be modified from time to time; (iii) by-laws, regulations and requirements that are promulgated by Visa or MasterCard or any other card association or network or combination of associations or networks, as may be modified from time to time; (iv) all rules, regulations and policies of the Payment Provider as outlined in the Merchant Processing Agreement and associated documentation, as may be modified from time to time.
2. TERM; RENEWAL; TERMINATION.
2.1 Term and Renewal. Payment Services commence on the date specified in the Order Document and continue for the same Initial Term and Renewal Term as the SaaS Services. The Payment Services shall be renewed, billed, payable, and subject to any increases in conjunction with the Client’s current SaaS Fees.
2.2 Termination. This Schedule may be terminated for cause by either Party in accordance with Section 9 of the Master Agreement. Sections 1 and 2 hereof and the surviving provisions of the Master Agreement shall survive expiration or termination of this Schedule. Upon termination of the SaaS Services, and provided Client is not in breach of any of its obligations under the Agreement, MRI will, upon Client’s written request and payment of the applicable fees, provide a backup copy of Client’s Data (a then- current fee schedule will be provided upon request) . Client shall not be relieved of its obligation to pay any and all Fees due prior to termination.
MRI shall, in its sole discretion, have the right to terminate the Schedule and the Payment Services portions of the applicable Order Documents immediately upon notice to Client, if: (i) the Client does not complete reasonable documentation presented to Client as part of MRI’s Onboarding Documentation in a timely manner; (ii) Client or is not approved by the Payment Providers; (iii) in the event that MRI, the Bank, or Payment Providers become subject to any state or federal government entity, regulatory agency or of MasterCard or Visa which would make continuation of the Payment Services under the Agreement impractical; (iv) in the event that MRI is no longer registered as an ISO or MSP with VISA or MasterCard respectively (for any reason); (iv) in the event that the Bank no longer holds a license and/or membership with VISA or MasterCard; or (v) in the event that the Bank is de-registered by VISA or MasterCard.
Additionally, the Payment Providers and Bank may, in their sole and exclusive discretion, terminate any Merchant Processing Agreement immediately upon notice to the Client. Client acknowledges and agrees that MRI has no liability and Client has no remedies against MRI for a decision of non-approval.
3. GRANT OF USE
Subject to Client’s approval as outlined in Section 4.2, MRI grants to Client a non-exclusive, non-transferable, limited right and license to access and use the Payment Services during the Term of the Agreement, as more fully described in the Order Document, solely for Client’s internal business purposes as more fully set out herein. Such access and use are subject to the terms of the Master Agreement and this Payment Schedule, including wit hout limitation the restrictions set forth in Section 6.2 of the Master Agreement and payment obligations.
4. PAYMENT SERVICES
4.1 Description. The Payment Services provide an electronic gateway within which the Client may accept ACH, Check 21, debit car d or credit card payments from Payer for goods or services rendered by the Client to the Payer, through a variety of channels by using the provided application program interface(s) (“API”).
Updated April 2023 – Version 9 MRI Confidential Page 20 of 28
Payment Services are contingent upon, and shall not be provided, if the Client is not approved for credit card payments by the Payment Providers in the sole discretion of the Payment Providers as further outlined in Section 4.2.
4.2 Approval. Client hereby consents to the Merchant Processing Agreement, and agrees to complete any other reasonable documentation presented to Client as part of MRI’s Onboarding Documentation. Further details regarding the Merchant Processing Agreement may be found in the materials provided to Client as part of the Onboarding Documentation. M RI shall, on behalf of the Client, submit the Merchant Processing Agreement to the Payment Providers for consideration and approval. Client shall not receive access to the Payment Services until such Merchant Processing Agreement has been accepted and approved by the Bank and Payment Providers, as applicable.
Client expressly acknowledges that Bank and Payment Providers have the right, in their sole and exclusive discretion, to approve or disapprove any Merchant Processing Agreement or any part thereof, regardless of the form submitted. Client acknowledges and agrees that MRI has no liability and Client has no remedies against MRI for a decision of non-approval.
4.3 Client’s Authorizations. Client authorizes MRI and the MRI Payment Providers to act on Client’s behalf as reasonably necessary to provide the Payment Services, including without limitation, to facilitate the electronic receipt of invoices, electronic payments and remittances in connection with the Payment Services. Client authorizes MRI to use and disclose Client Data to the extent necessary to provide the Payment Services. Client specifically authorizes MRI to provide the Client’s Confidential Information to the Payment Providers, including without limitation, contact information of the Client and its employees.
Client represents and warrants that: (i) Client has full authority to issue invoices, and Client’s issuance of said invoices is in compliance with all applicable laws and regulations (including without limitation OFAC), for the payments being requested through the Payment Services; (ii) Client has received authorization from all Payers to accept the Payment; (iii) Client has authorized its financial institution(s) to accept the funds received through the Payment Services; (iv) it is familiar with and understands all of the Rules, and hereby expressly agrees that it will strictly abide by all such Rules at all times hereunder. Client hereby expressly agrees that it will indemnify and hold MRI harmless for any violation of the Rules by the Client or any of its Client Users; and (v) Client’s instructions, requests or other communications given to MRI or through the Payment Services shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authori zation from Client signed by its authorized representative. MRI shall have no liability and Client agrees to indemnify MRI pursuant to Section 7.4 of the Master Agreement resulting from the refusal of any payee to accept payment through the Payment Services, the failure of Client to provide timely or accurate information (including invoices and payment instructions), or a breach by Client of its representations and warranties.
If MRI is required to respond to a subpoena, demand or request from OFAC or any other government or regulatory agency or card brand, Client shall provide such identifying information as may be reasonably necessary for compliance under applicable laws, rules, and regulations promulgated under OFAC or otherwise, including name, date of birth, address and identification number.
MRI shall have no liability for disclosure of such information to agencies.
The Client acknowledges that MRI may contact the residents, applicants, and the employees of the Client, for any purpose related to the Services and by any contact method that is permitted under law. Client acknowledges that all users of the Services will be required to agree to terms of use for the Service prior to use. Failure to agree to such terms shall result in a denial of service f or that user and no refund shall be issues to the Client.
To the extent applicable, Client appoints MRI as its limited payments agent for the sole purpose of receiving, holding and settling payments to Client processed through the Payments Services for made through the through Check21 or any other appliable elements of the Payments Services. MRI will settle payments that are actually received by MRI to Client, less any fees and other obligations, and subject to this Schedule. MRI shall invoice Client in accordance with the Order Document for performing this settlement. Client agrees that a payment received by MRI, on behalf of Client, satisfies the Payer’s obligation to make payment to Client, regardless of whether MRI actually settles such payment to Client. If MRI does not settle any such payments as described in this Schedule to Client, Client will have recourse only against MRI and not the Payer, as payment is deemed made by Payer to Client upon constructive or actual receipt of funds by MRI.
In accepting appointment as Client’s limited payments agent, MRI assumes no liability for any acts or omission by Client, and Client understands that MRI’s obligation to settle funds to Client is subject to and conditional upon the Payer’s actual payment.
4.4 SaaS Environment. Client is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Payment Services, including but not limited to Client’s Internet access.
4.5 SaaS Service Availability. MRI shall use commercially reasonable efforts to maintain a Monthly Uptime Percentage of 99.99% for the Payment Services , except for: (a) any unavailability caused by circumstances beyond MRI’s and it’s Payment Provider’s reasonable control, including without limitation, Force Majeure Events; (b) Client Error Incidents; (c) Scheduled Maintenance; (d) Emergency Maintenance; (e) DNS propagation or issues outside of the control of the Payment Providers; (f) willful misconduct or misuse by the Client Users of the Payment Services; (g) email or web- delivery and transmission; and (h) Internet service provider failures. Monthly Uptime Percentage shall mean the percentage of time the Payment Services are available for access and use by Client as measured over the course of each calendar month during the Term.
Scheduled Maintenance is defined as any maintenance performed during MRI’s then-current standard maintenance windows and any other maintenance of which Client is given at least forty -eight (48) hours advance notice. MRI may perform maintenance on some or all of the Payment Service in order to upgrade hardware or software that operates or supports the Payment Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the Payment Service. To the extent practical, MRI shall perform Scheduled Maintenance between the hours of Friday, 6:00pm eastern time through Monday 6:00 am eastern time. Client Error Incident is defined as any Payment Service unavailability related to Client’s applications, Client Data, or Client’s equipment, or the acts or omissions of any user of the Payment Service. Emergency Maintenance means downtime of the Payment Service due to the application of urgent patches or fixes, or other urgent maintenance, recommended by MRI’s vendors, that is performed outside of Scheduled Maintenance.
Client acknowledges that MRI does not control the transfer of data over telecommunications facilities, including the Internet. MRI does not warrant secure operation of the Payment Services or that it will be able to prevent third party disruptions of such Services. Client acknowledges further that the Payment Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. MRI is not
Updated April 2023 – Version 9 MRI Confidential Page 21 of 28
responsible for any delays, delivery failures, or other damage resulting from such problems.
4.6 Maintenance and Support Services. Subject to Client’s timely payment of applicable fees, MRI will provide to Client the Maintenance and Support services for the Maintenance and Support plan indicated in the Order Document, under MRI’s Maintenance and Support policies in effect at the time the Services are provided for the level of Services ordered. MRI shall manage and install all Updates and Upgrades of the hosted Software. MRI may during the provision of Maintenance and Support Services for the Payment Services, require Client to work directly with its Payment Providers for Maintenance and Support Services; Client shall comply with such requests.
Updates are provided when and if available, and MRI is under no obligation to develop any future programs or functionality. MRI is under no obligation to provide Maintenance and Support with respect to: (i) Software that has been altered or modified by anyone other than MRI or its licensors; (ii) a release for which Mai ntenance and Support has been discontinued; (iii) Software used other than in accordance with the Documentation; (iv) discrepancies that do not significantly impair or affect the operation of the Payment Services; (v) any systems or programs not supplied by MRI; or (vi) Configurations.
For the avoidance of doubt, Updates provided under Maintenance and Support services do not include custom development, Upgrades, or Configurations regardless of whether such Configurations are performed by MRI or by Client.
MRI reserves the right to charge Client for any reintegration work required to make Configurations compatible with future versions/releases.
If an Error was corrected or is not present in a more current version of the Software, MRI shall have no obligation to correct such Errors in prior versions of the Software.
Subject to timely payment of the applicable fees, Maintenance and Support is provided for all Software, unless otherwise noted in the Order Document; provided, however, that with respect to Third P arty Software, MRI’s obligation is limited to using commercially reasonable efforts to obtain Maintenance and Support from the third party owner of such Software.
4.7 Backups and Restoration Services. Provided Client is not otherwise in breach of the Agreement, MRI will provide backup copies and/or database restoration, upon written request and subject to Client’s payment of applicable fees for such service (a then- current fee schedule will be provided upon request).
4.8 Exclusions. Fees for SaaS Services do not include implementation, training and other Professional Services, such as project management, conversion, report writing, and external systems interface development. It is Client’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Client to effectively use the SaaS Services. Failure to do so could result in increased service call fees if such service calls are deemed excessive as a result of insufficient training, at MRI’s discretion.
5. CERTAIN OBLIGATIONS
5.1 Passwords; Security. Client is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Client is entirely responsible for any and all activities that occur under Client's account. Client agrees to immediately notify MRI of any unauthorized use of Client's account or any other breach of security known to Client. MRI shall have no liability for any loss or damage arising from Client's failure to comply with these requirements. MRI will maintain Client passwords as confidential and will not disclose them to third parties.
5.2 Client Systems. Client agrees to provide and maintain at its sole expense all Client Systems and is responsible for upgrading and configuring Client Systems to be and remain compatible with the Services and Avid Technology. Client is also responsible for confirming that all payment authorization rights are correctly configured and updated as needed.
5.3 Acceptable Use. Client acknowledges and agrees that MRI does not monitor or police the content of communications or data of Client or its users transmitted through the Payment Services, and that MRI shall not be responsible for the content of any such communications or transmissions. Client shall use the Payment Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Client agrees not to post or upload any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains Malicious Code; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law. Cl ient further agrees not to interfere or disrupt networks connected to the Payment Services, not to interfere with another entity's use and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the Payment Services. MRI may remove any violating content posted on the Payment Services or transmitted through the Payment Services, without notice to Client. MRI may suspend or terminate Client’s access to the Payment Services (upon notice if such notice is permitted by applicable law enforcement or regulatory agencies) in the event that MRI reasonably determines that Client has violated the terms and conditions of this Schedule or as reasonably necessary to investigate or stop any suspicious, illegal or fraudulent activities. MRI shall not be liable under this Schedule with respect to the Client Systems and Client Data, including the failure by Client to timely provide them. Client shall have sole responsibility for the accuracy, quality, integrity, legali ty, reliability, appropriateness and intellectual property rights to use, and the provision and maintenance of, all Client Systems and Client Data in connection with the Services.
6. WARRANTIES AND DISCLAIMER
6.1 Limited Warranty. The Payment Services will conform in material respects to the terms outlined in Section 4.1 above.
6.2 Remedies. If Client notifies MRI in writing of a breach of warranty during the Term, upon confirmation, MRI will use commercially reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Client agrees to use reasonable efforts to assist MRI in diagnosing, replicating and correcting defects or other issues concerning the Payment Services, whi ch may include providing information and remote access to Client Systems, but only to the extent reasonably required to resolve the issue. The foregoing remedy is sole and exclusive for any breach of warranty claim. MRI makes no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, truth, availability, accuracy or completeness of the Services or any content. EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS
SECTION, THE SERVICES AND ALL CONTENT ARE PROVIDED TO CLIENT STRICTLY ON AN "AS IS, AS AVAILABLE" BASIS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Updated April 2023 – Version 9 MRI Confidential Page 22 of 28
6.3 Exclusions. Payments Service errors, defects, failures or other non-compliance caused, in whole or in part, by (a) Client’s failure to comply with this Schedule; (b) the acts or omissions of any person other than MRI or its agents; (c) Client’s modification of the Payment Services or any part thereof; (d) Client’s use of the Payment Services or any part thereof in combination with any Client Systems and Client Data or systems or m aterials furnished by a third party; or (e) any other cause beyond MRI’s reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from the warranty.
7. HARDWARE. If the Client purchased Hardware from MRI, the terms in this Section 7 shall apply.
7.1 Purchases. The Client acknowledges that the fees outlined in the Order Document does not include shipping costs and the Client shall be charged the shipping fees related to the hardware products which it purchases.
Upon the execution of an Order Document outlining the purchase of hardware products, MRI through its supplier, shall deliver the hardware products to the Client. In the event that the purchased product is not promptly available, MRI may (i) switch the purchased hardware product with a comparable product at no additional cost to the Client; (ii) notify the Client of the unavailability of the product and work together in good faith to resolve the unavailability; or (iii) terminate the hardware product portion of the applicable Order Document upon notice to the Client. Client specifically authorized MRI to provide the Client’s Confidential Information to the hardware provider, including without limitation, contact information of the Client and its employees.
7.2 Limited Hardware Warranty. Any warranties listed in the Master Agreement or Schedules shall not apply and this warranty contained within this Section 7.2 shall apply to hardware purchases. If the Hardware products purchased by Client fail to operate during the Term, then MRI shall use all reasonable efforts to facilitate the repair or replacement of the Hardware form the original hardware supplier. In order to receive such repair or replacement, Client must: (i) promptly notify MRI of a w arranty claim or of a suspected warranty claim; and (ii) cooperate with request to access or return the defective hardware product. Such warranty shall not apply if the hardware products have been misused by the Client or its agents. The Client acknowledges that it may be charged a fee for critical repairs which must be performed promptly. The aforementioned warranty and remedy shall constitute the sole and exclusive remedy for a warranty claim on the hardware products.
7.3 Maintenance and Support. MRI may during the provision of Maintenance and Support Services for the hardware products, require Client to work directly with its hardware supplier; Client shall comply with such requests.
The Client acknowledges that it may be charged a fee for critical repairs which must be performed promptly.
8. THIRD-PARTY BENEFICIARIES AND GENERAL TERMS
0Notwithstanding any provision to the contrary contained in this Schedule, MRI and Client hereby acknowledge and agree that Payment Providers and its Affiliates are intended to be, and are hereby deemed to be, third- party beneficiaries to this Schedule with respect to the Payment Services, and all benefits of MRI hereunder shall inure to and benefit Payment Providers and its Affiliates. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION TO
THE CONTRARY CONTAINED IN THE MASTER AGREEMENT, THIS
SCHEDULE OR ANY OTHER DOCUMENT, INCLUDING WITHOUT
LIMITATION ANY ADDENDUM OR AMENDMENT ENTERED INTO
BETWEEN CLIENT AND MRI, IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF MRI, THE BANK, AND THE PAYMENT PROVIDERS
(COLLECTIVELY) FOR THE PAYMENTS SERVICES AND ITS AFFILIATES
ARISING FROM OR RELATED TO THE PAYMENTS SERVICES OR THIS
SCHEDULE EXCEED IN AGGREGATE THE TOTAL AMOUNT OF FEES PAID
BY CLIENT FOR THE PAYMENTS SERVICES WITHIN THE MOST RECENT TWELVE (12)-MONTH PERIOD DURING THE TERM.
***************************************************************************************************************************************
END OF PAYMENTS SERVICES SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 23 of 28
MRI VENDOR PAY SERVICES SCHEDULE
This Services Schedule for the MRI Vendor Pay powered by AvidXchange (this “Schedule”) is entered into between MRI Software LLC (“MRI”) and the Client named in the Order Document. References to this Schedule shall be deemed to include the terms and conditions of the Master Agreement between MRI and Client. As used in this Schedule, “Party” means either Client or MRI, as appropriate, and “ Parties” means Client and MRI. Client has decided to purchase MRI Vendor Pay. Client acknowledges and agrees that MRI will utilize AvidXchange and/or other third parties in the performance of the Services and that references to MRI shall be deemed to include AvidXchange and/or such other third parties, as applicable. All capitalized terms used and not defined in this Schedule shall have the meanings ascribed to them in the Master Agreement.
1. DEFINITIONS
“AvidPay” is a payment platform which enables Client to pay vendors electronically.
“AvidXchange Services” means certain web-based services offered by MRI from AvidXchange, Inc. (“AvidXchange”) that support the automation of Client’s accounts payable process as more fully described in the associated Order Document. For purposes of the Master Agreement AvidXchange Services shall be included in the definition of SaaS Services.
“Avid Technology” means all of AvidXchange's proprietary and/or licensed technology, including software, hardware, products, processes, algorithms, user interfaces, know -how, techniques, designs, documentation, and other tangible or intangible technical materials or information. “Business Day” means any calendar day, excluding Saturday, Sunday and holidays recognized by the US federal government.
“Client Systems” means all necessary systems, facilities and resources of any kind required to be provided by Client to effectively access and use the Services, including, as applicable, Client or third party communication lines, databases, software, hardware, firewalls, internet connections, routing and network addresses and configurations and key contacts for problem escalation. “Malicious Code” means computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. "OFAC" means the US Department of Treasury Office of Foreign Assets Control.
“Transaction" means each payment or any other item processed via the AvidXchange Services on a fee per item basis. A transaction charge applies to each individual item submitted into the AvidXchange Services by Client.
2. TERM; RENEWAL; TERMINATION.
2.1 Term and Renewal. The Services commence on the date specified in the Order Document and continue for the term set forth in the Order Document (“Initial Term”). Following the end of the Initial Term, the Services shall automatically renew for the same length as the Initial Term (each renewal a “Renewal Term”) unless either Party gives written notice at least sixty (60) calendar days prior to the end of the Initial Term or any Renewal Term, as applicable, of its intention to not renew the Services. The pricing for the first twelve (12) months of any Renewal Term shall be provided by MRI in writing no less than ninety (90) days prior to the end of the Initial Term or any Renewal Term. For the purposes of the pricing notice in this Section, email or first-class mail will suffice. The Initial Term and Renewal Terms are collectively referred to as the “Term.”
2.2 Termination. This Schedule may be terminated for cause by either Party in accordance with Section 9 of the Master Agreement.
3. GRANT OF USE
MRI grants to Client a non-exclusive, non-transferable, limited right and license to use the AvidXchange Services, Avid Technology and AvidXchange Content solely for Client’s own internal business purposes during the Term, subject to Client’s compliance with the terms and conditions of this Schedule, including payment of all applicable charges. Client agrees to accept all modifications to the AvidXchange Services made available to Client at no additional charge, including any updates, upgrades and fixes. Client acknowledges and agrees that all aggregated user data available from the AvidXchange Services, Avid Technology and AvidXchange Content that is not specific to and does not identify Client is owned exclusively by AvidXchange.
4. AVIDXCHANGE SERVICES
4.1 Description. The AvidXchange Services enable Client to deliver an electronic file of vendor payments approved by Client from Client’s accounts payable system to the MRI Payment Network powered by AvidXchange. Upon receipt by the MRI Payment Network, the payments contained in the payment file will be separated by payment method (i.e., ACH credit entries, credit card and paper checks), and MRI will cause payments to be remitted in accordance with Client’s payees’ preferences using each payment method.
Client must provide approved payment files prior to 3:00 pm EST (or 2:00 pm EST for the Payables Lockbox service) for any payments to be initiated and debited from Client’s accounts by the next Business Day. Checks will be printed and mailed the next Business Day. Payments can be expedited for an additional fee. Any payment exception or expedite request must be received by 5:00 pm EST on the same day the payment transmission was initiated. Client expressly agrees that MRI shall not be liable for any losses incurred by Client arising out of any delay in any wire transfer or processing of ACH debits or credits or any delay of the US Postal Service or other mail carrier, unless any such delay is caused solely by the intentional misconduct of MRI.
4.2 Implementation. MRI will facilitate the performance of certain tasks to activate the AvidXchange Service, as may be applicable: (a) project management, including resource allocation, regular status updates and ongoing collaboration with Client; ( b) one- time migration of associated Client Data, including accounting codes, accounts and vendor information; (c) Client workflow configuration specific to Client specifications; (d) integration into Client’s accounting system; (e) configuration of Client Data into the native format required for the AvidXchange Services and/or (f) training Client’s designated users on the AvidXchange Services.
4.3 Client’s Authorizations. Client authorizes MRI to act on Client’s behalf as reasonably necessary to provide the AvidXchange Services, including without limitation, to facilitate the electronic receipt of invoices, electronic payments and remittances in connection with the AvidXchange Services, including communications with vendors and others by phone, mail or email .
Client authorizes MRI: (i) to use and disclose Client Data to the extent necessary to provide the AvidXchange Services; (ii) for each Client payment request, including vendor ePayments, to make payments based on Client’s requests submitted through the AvidXchange Services by electronic submission (ACH) or by paper check; and (iii) with respect to any ACH payment, to create an ACH debit from the associated Client bank account from which the payment transaction will originate. Client agrees to execute a reasonable and customary individual ACH authorization form for each bank account.
Client represents and warrants that (i) Client has full authority to authorize all payments requested through the AvidXchange Services; (ii) Client has authorized its financial institution(s) to withdraw, debit or charge the necessary
Updated April 2023 – Version 9 MRI Confidential Page 24 of 28
funds from Client’s account(s) for all payments to be made via the AvidXchange Services; (iii) Client will request a payment transaction be made only when a sufficient collected balance is or will be available in Client’s respective account at the anticipated time of withdrawal; (iv) Client’s payment and remittance instructions are complete and accurate in all respects and in compliance with all applicable laws and regulations, including any requirements of OFAC; and (v) Client’s instructions, requests or other communications given to MRI or through the AvidXchange Services shall be regarded as legal endorsements and shall be deemed to have the same legal authority as a written authorization from Client signed by its authorized representative. MRI shall have no liability and Client agrees to indemnify MRI pursuant to Section 7.4 of the Master Agreement resulting from the refusal of any payee to accept payment through the AvidXchange Services, the fail ure of Client to provide timely or accurate information (including invoices and payment instructions), or a breach by Client of its representations and warranties.
If MRI is required to respond to a subpoena, demand or request from OFAC or any other government agency, Client shall provide such identifying information as may be reasonably necessary for compliance under applicable laws and regulations promulgated under OFAC or otherwise, including name, date of birth, address and identification number. MRI s hall have no liability for disclosure of such information to a government agency.
5. CERTAIN OBLIGATIONS
5.1 Passwords; Security. Client is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only b y the authorized user. Client is entirely responsible for any and all activities that occur under Client's account. Client agrees to immediately notify MRI of any unauthorized use of Client's account or any other breach of security known to Client. MRI shall have no liability for any loss or damage arising from Client's failure to comply with these requirements. MRI will maintain Client passwords as confidential and will not disclose them to third parties.
5.2 Client Systems. Client agrees to provide and maintain at its sole expense all Client Systems and is responsible for upgrading and configuring Client Systems to be and remain compatible with the Services and Avid Technology. Client is also responsible for confirming that all payment authorization rights are correctly configured and updated as needed.
5.3 Acceptable Use. Client acknowledges and agrees that MRI does not monitor or police the content of communications or data of Client or its users transmitted through the A vidXchange Services, and that MRI shall not be responsible for the content of any such communications or transmissions. Client shall use the AvidXchange Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Client agrees not to post or upload any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains Malicious Code; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law. Client further agrees not to interfere or disrupt networks connected to the AvidXchange Services, not to interfere with another entity's use and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the AvidXchange Services.
MRI may remove any violating content posted on the AvidXchange Services or transmitted through the AvidXc hange Services, without notice to Client. MRI may suspend or terminate Client’s access to the AvidXchange Services (upon notice if such notice is permitted by applicable law enforcement or regulatory agencies) in the event that MRI reasonably determines that Client has violated the terms and conditions of this Schedule or as reasonably necessary to investigate or stop any suspicious, illegal or fraudulent activities. MRI shall not be liable under this Schedule with respect to the Client Systems and Client Data, including the failure by Client to timely provide them. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property rights to use, and the provision and maintenance of, a ll Client Systems and Client Data in connection with the Services.
6. WARRANTIES AND DISCLAIMER
6.1 Limited Warranty. The AvidXchange Services will conform in all material respects with the terms of this Schedule.
6.2 Remedies. If Client notifies MRI in writing of a breach of warranty during the Term, upon confirmation, MRI will use commercially reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Client agrees t o use reasonable efforts to assist MRI in diagnosing, replicating and correcting defects or other issues concerning the AvidXchange Services, which may include providing information and remote access to Client Systems, but only to the extent reasonably required to resolve the issue. The foregoing remedy is sole and exclusive for any breach of warranty claim. MRI makes no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, truth, availability, accuracy or completeness of the Services or any content. EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS
SECTION, THE SERVICES AND ALL CONTENT ARE PROVIDED TO CLIENT STRICTLY ON AN "AS IS, AS AVAILABLE" BASIS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.3 Exclusions. AvidXchange Service errors, defects, failures or other non-compliance caused, in whole or in part, by (a) Client’s failure to comply with this Schedule; (b) the acts or omissions of any person other than MRI or its agents; (c) Client’s modification of the AvidXchange Services or any part thereof; (d) Client’s use of the AvidXchange Services or any part thereof in combination with any Client Systems and Client Data or systems or materials furnished by a third party; or (e) any other cause beyond MRI’s reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from the warranty.
7. THIRD-PARTY BENEFICIARIES
Notwithstanding any provision to the contrary contained in this Schedule, MRI and Client hereby acknowledge and agree that AvidXchange and its Affiliates are intended to be, and are hereby deemed to be, third- party beneficiaries to this Schedule with respect to the AvidXchange Services, and all benefits of MRI hereunder shall enure to and benefit AvidXchange and its Affiliates .
NOTWITHSTANDING THE FOREGOING OR ANY PROVISION TO THE
CONTRARY CONTAINED IN THIS SCHEDULE OR ANY OTHER
DOCUMENT, INCLUDING WITHOUT LIMITATION ANY ADDENDUM OR
AMENDMENT ENTERED INTO BETWEEN CLIENT AND MRI, IN NO EVENT
SHALL THE AGGREGATE LIABILITY OF AVID XCHANGE AND ITS
AFFILIATES ARISING FROM OR RELATED TO THE AVIDXCHANGE
SERVICES OR THIS SCHEDULE EXCEED THE TOTAL AMOUNT OF FEES
PAID BY CLIENT FOR THE AVIDXCHANGE SERVICES WITHIN THE MOST RECENT 12-MONTH PERIOD DURING THE TERM.
***************************************************************************************************************************************
END OF MRI VENDOR PAY SERVICES SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 25 of 28
NOTIFY + RESPONSE SCHEDULE
This Notify+Response Schedule is entered into between MRI Software company named in the attached Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Notify+Response Schedule to be effective as of the Effective Date, as defined in the Order Document. References to this Schedule shall be deemed to include the terms and conditions of the Master Agreement between MRI and Client. As used in this Schedule, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI. Client has decided to purchase Angus Notify+Response Module.
Client acknowledges and agrees that MRI will utilize MIR3, Inc. and/or other third parties in the performance of the Services and that references to MRI shall be deemed to include MIR3, Inc. and/or such other third parties, as applicable. All capitalized terms used and not defined in this Schedule shall have the meanings ascribed to them in the Master Agreement.
1. Definitions. The following capitalized terms used in this Schedule shall have the meanings set forth below:
“MRI Angus Technology” means the proprietary products/services developed by MRI, including MRI’s commercial real estate operations optimization software called “MRI Angus”.
“Authorized User” means an affiliate, vendor, tenant, contractor or employee of Client, or an employee or contractor of such affiliate, vendor, tenant or contractor, that has been expressly authorized by Client to access and use the N+R Module in connection with one or more specified Client Properties accordance with this Schedule (an individual or entity who is configured to receive Notifications shall not be considered and Authorized User unless it has also expressly been granted access to the N+R Module as set forth above).
“Blocked Number” means a telephone number – provided to an Authorized User as a contact number for a Recipient -- to which access by SMS has been blocked by a telephone carrier on the instructions of Client or the Recipient.
“Content” means the content, data, text, messages and other material contained in a Notification.
“Client Properties” means, collectively, the commercial buildings and/or other premises owned, operated, managed or occupied by Client that are expressly included from time to time in an applicable Order Document or this Schedule, or otherwise expressly identified by Client to MRI in writing from time to time during the Term.
“MIR3 Technology” means certain proprietary products/services developed by MIR3, Inc. for use in sending and receiving two-way text and voice notifications.
“Notification” means one of the messages issued by an Authorized User using the N+R Module.
“Notify+Response Module” or “N+R Module” means the product resulting from the integration, in part or in whole, of the MRI Angus Technology with the MIR3 Technology, that is made available by MRI to Client under the terms of this Schedule.
“Recipient” means any individual, business, or other organization that is configured to receive Notifications or is the intended recipient of Notifications.
2. TERM; RENEWAL; TERMINATION.
2.1 Term and Renewal. The Services commence on the date specified in the Order Document and continue for the term set forth in the Order Document (“Initial Term”). Following the end of the Initial Term, the Services shall automatically renew for the same length as the Initial Term (each renewal a “Renewal Term”) unless either Party gives written notice at least sixty (60) calendar days prior to the end of the Initial Term or any Renewal Term, as applicable, of its intention to not renew the Services. The pricing for the first twelve (12) months of any Renewal Term shall be provided by MRI in writing no less than ninety (90) days prior to the end of the Initial Term or any Renewal Term. For the purposes of the pricing notice in this Section, email or first-class mail will suffice. The Initial Term and Renewal Terms are collectively referred to as the “Term.”
2.2 Termination. This Schedule may be terminated for cause by either Party in accordance with Section 9 of the Master Agreement.
3. Subscription Grant. Subject to the terms and conditions of this Schedule, MRI grants to Client a non- exclusive, non-transferable, and non- sublicensable, limited right and license to use the MIR3 Technology, , or another substantially equivalent solution, N+R Module solely in conjunction with MRI’s proprietary MRI Angus technology during the Term.
4. Prices and Payment. Client will pay MRI for the N+R Module as outlined in the applicable Order Document. Pricing for SMS and Voice transactions is for North American numbers only. Reasonable additional fees will apply for International SMS or Voice transactions.
5. Ownership. Client acknowledges that MRI and its licensors and/or suppliers retain all right, title and interest in and to the original, and any copies, of the N+R Module, including but not limited to all intellectual property rights therein.
6. Restrictions. Client agrees that it shall not, and shall not allow any third party to (i) decipher, decompile, disassemble, modify, translate, reverse assemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, tags, specifications, architecture, or programming or interoperability interfaces of the N+R Module or any portion thereof, (ii) distribute, license, sublicense, assign, transfer, rent, host, lease, or sell use of the N+R Module, (iii) remove any product identification, copyright or other notices included with the N+R Module, or (iv) except as specified in the applicable user documentation, modify or incorporate the N+R Module into other software.
7. Open Source Software. Client understands that the N+R Module includes or uses open source software. Such open source software is sublicensed to Client for use solely in connection with the N+R Module and subject to the terms and conditions of the agreements referenced below, and, to the extent not in conflict with such agreements, the terms and conditions of this Schedule.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET
OUT ELSEWHERE IN THIS AGREEMENT, THE SERVICES AND ALL
CONTENT ARE PROVIDED TO CLIENT STRICTLY ON AN "AS IS, AS AVAILABLE" BASIS. THERE ARE NO EXPRESS OR IMPLIED
REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND IN RESPECT OF THE N+R MODULE, INCLUDING BUT NOT LIMITED TO
IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF UNINTERRUPTED OR ERROR-FREE SERVICE.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT
PERMITTED BY LAW, MRI’S AND ITS LICENSORS’ TOTAL LIABILITY
Updated April 2023 – Version 9 MRI Confidential Page 26 of 28
(INCLUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) TO
CLIENT FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES UNDER THIS
SCHEDULE, WILL BE LIMITED TO THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS.
10. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL MRI OR ITS
LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY OR CONSQUENTIAL DAMAGES ARISING OUT
OF THIS SCHEDULE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE,
LOSS OF REVENUES AND LOSS OF PROFITS, EVEN IF MRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. MRI’S Warranties and Representations.
11.1 Limited Warranty. The N+R Module shall perform substantially in accordance with the specifications herein and MRI shall take the steps necessary to maintain the N+R Module accordingly.
11.2 Remedies. If Client notifies MRI in writing of a breach of warranty during the T erm, upon confirmation, MRI will use commercially reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Client agrees to use reasonable efforts to assist MRI in diagnosing, replicating and correcting defects or other issues concerning the N+R Module, which may include providing information and remote access to Client Systems, but only to the extent reasonably required to resolve the issue. The foregoing remedy is sole and exclusive for any breach of warranty claim. MRI makes no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, truth, availability, accuracy or completeness of the Services or any content.
11.3 Exclusions. N+R Module errors, defects, failures or other non- compliance caused, in whole or in part, by (a) Client’s failure to comply with this Schedule; (b) the acts or omissions of any person other than MRI or its agents; (c) Client’s modification of the N+R Module or any part thereof; (d) Client’s use of the N+R Module or any part thereof in combination with any Client Systems and Client Data or systems or materials furnished by a third party; or (e) any other cause beyond MRI’s reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from the warranty.
12. Client’s Warranties and Representations. Client warrants and represents to MRI that:
(a) Client will be solely responsible for all content, data, text, messages and other material contained in a Notification (the “Content”) created by Client and any Authorized User, and for the integrity and quality of such Content.
(b) Client will not send, and will not permit any Authorized User to send, any Notifications to a Recipient unless Client has obtained such Recipient’s “opt- in” consent.
(c) Client will provide all Recipients with a simple mechanism for opting out of or unsubscribing from receiving Notifications, including information on how to “opt-out” or unsubscribe.
(d) Client will not send, and will not permit any Authorized User to send, Notifications to phone numbers that are emergency numbers and to other numbers that are not permitted under applicable law to be called using an automated system.
(e) Client will comply, and will require all Authorized Users to comply, with all applicable foreign, federal, provincial, state and local laws in the use of the N+R Module, including without limitation, the Fair Debt Collection Practices Act (US), deb t collection laws of Canada and its provinces, Federal Trade Commission (US), Industry Canada or any regulation of the US Securities and Exchange Commission or any stock exchange.
(f) Client will not send, and will not permit any Authorized User to send, any Content that Client or such Authorized User (as applicable) knows, or has reason to know, infringes another’s rights in intellectual property, is invasive of another’s right to privacy, or violates any privacy laws, privacy policies of Client or any other third parties or does anything that would justify a complaint to the Federal Communications Commission (US) or the Privacy Commissioner of Canada or a Canadian province or territory.
(g) Client will not, and will not permit any Authorized User, to (i) engage in or facilitate any unethical, deceptive or misleading practices in connection with the use of the N+R Module, (ii) use the N+R Module in connection with any junk email, junk phone messages, spamming or any unsolicited messages (commercial or otherwise); or (iii) provide, or knowingly allow any third parties to provide, content or other material to be transmitted in connection with or through the N+R Module which: is defamatory, obscene, pornographic or harmful to minors; promotes violence, discrim ination, or illegal activities; or contains viruses, worms, cancelbots or any other harmful code or computer programs designed to disrupt the functionality of any computer software or hardware or telecommunications equipment.
(h) Client will not send, and will not permit any Authorized User to send, Short Message Service (“SMS”) in binary format or any format other than text format.
(i) Client will maintain, and will require all Authorized Users to maintain, all security regarding their account ID, password, and connectivity with the N+R Module. Client will require all Authorized Users to be responsible for all Notifications transmitted through the N+R Module (except to the extent that a breach of security is caused by the N+R Module). Client will require all Authorized Users, if account IDs or passwords are stolen or otherwise compromised and used for malicious purposes, to be responsible for all Notifications sent using the stolen account information. Client will also require all Authorized Users to immediately change their account IDs or passwords to prevent continued malicious use of the accounts.
(j) Even though Client or a Recipient may have instructed its telephone carrier or carriers to block access by SMS to a Blocked Number, Client hereby authorizes MRI, and will require such Recipient to authorize MRI, solely in connection with the N+R Module, to unblock access by SMS to such Blocked Number, and Client hereby releases MRI from all liability to Client and the Recipient that may arise in consequence of MRI’s unblocking of access to such Blocked Number.
13. Modifications to Warranties. Client’s warranties and representations as set out in this Agreement are based on pass-through terms from third parties that supply telephony, facsimile and/or Short Message Service (SMS) transactions to MIR3, Inc. and MRI, and as such, MRI will be entitled to require Client to modify its warranties and representations upon 30 days written notice due to changes by such third-party suppliers.
14. Failure to Comply. Client’s failure to comply with the warranties and representations set out in this Schedule could result in the termination of certain critical services from MRI’s suppliers to MRI which would impact all MRI clients.
Thus, in the event that Client breaches any of these warranties and representations, MRI may suspend the provision of the N+R Module to Client if, in MRI’s reasonable determination, suspension is reasonably necessary to avoid liability or termination of a contract with one of MRI’s suppliers.
Updated April 2023 – Version 9 MRI Confidential Page 27 of 28
15. Liability for Content. Under no circumstances will MRI or any of its licensors or suppliers be responsible for any loss, damage or liability arising out of the Content of any Notification, including any mistakes contained in the Content or the use or transmission of the Content, except to the extent that any Content is adversely affected by the N+R Module.
16. Indemnity. Client shall defend, indemnify, and hold harmless MRI and MIR3, Inc. and their affiliates, officers, directors, employees licensors, suppliers and agents from and against any and all damages, claims, fines, suits, proceedings, costs, liability, and expenses (including court costs and reasonable attorneys’ fees and expenses), incurred in relation to (a) any failure by Client to fulfill its responsibilities to Authorized Users or Recipients; and (b) any claims, suits, or proceedings brought by any third party (including any Authorized User or Recipient) that arise from or relate to any breach by Client of any representations and warranties given by Client under this Agreement; and (c) any and all claims from Authorized Users, Recipients or other third parties arising out of the breach of contract, gross negligence or willful misconduct of Client or its employees or agents.
17. Amendment. Client acknowledges that, MRI may amend this Schedule upon any new Release of the N+R Module by posting such updates to www.mrisoftware.com/termsandconditions, but only to the extent reasonably required to ensure that the provisions of this Schedule remain consistent in all material respects with the provisions of MRI’s license to use the MIR3 Technology.
18. THIRD-PARTY BENEFICIARIES. Notwithstanding any provision to the contrary contained in this Schedule, MRI and Client hereby acknowledge and agree that MIR3, Inc. and its Affiliates are intended to be, and are hereby deemed to be, third-party beneficiaries to this Schedule with respect to the MIR3 Technology, and all benefits of MRI hereunder shall enure to and benefit MIR3, Inc. and its Affiliates.
********************************************************************************************************************************* END OF NOTIFY + RESPONSE SCHEDULE
Updated April 2023 – Version 9 MRI Confidential Page 28 of 28
SELF-CERTIFICATION DOCUMENT
I hereby certify that, _________________________________________ (“Client”), with a registered office located at ______________________________________ ___________________________________________________________________________________________________________________________________ continues to utilize its License Software and/or SaaS Services in full conformity wi th the use rights and restrictions under its Agreement with MRI Software. Client agrees that submission of this Self-Certification does not waive any other audit rights granted to MRI under the Agreement.
Signature: __________________________________________
Print Name: ________________________________________
Title: ______________________________________________
Date: ______________________________________________
MRI Client ID: _______________________________________
Send Self-Certification Document to:
Fax: 216-803-4339
Email: [email protected]
Mail: MRI Software, LLC
Attn: Legal Department
28925 Fountain Parkway
Solon, Ohio 44139
All documents must be received prior to its certification date.
RESOLUTION NO. 2023-
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY, CALIFORNIA, RATIFYING PRIOR EXPENDITURES FROM FISCAL YEAR (FY) 2002 THROUGH FY 2024 TOTALING $292,349.49 AND MASTER AGREEMENT AMENDMENT NO. 1, INCLUDING A NOT- TO-EXCEED AMOUNT OF $35,030.00 FOR FY 2025, TO ADMINISTER THE SECTION 8 HOUSING CHOICE VOUCHER PROGRAM THROUGH HAPPY SOFTWARE INC., NOW KNOWN AS MRI SOFTWARE LLC.
WHEREAS, the Community Development Commission -Housing Authority (Housing Authority) of the City of National City administers the Section 8 Housing Choice Voucher (Section 8 HCV) Program, which is funded by the U.S. Department of Housing and Urban Development (HUD); and
WHEREAS, HUD regulations require that a housing software program be used for the proper administration and management of the Section 8 HCV; and
WHEREAS, In 2002, Happy Software Inc. was identified as the most qualified and experienced to provide softwa re products and services required for the administration of the Housing Authority’s Section 8 HCV Program; and
WHEREAS, Resolution 2002-31 approved an agreement with Happy Software, Inc. to purchase its products and services for the Section 8 HCV Program for one (1) year totaling $25,744; and
WHEREAS, in 2018, Happy Software Inc. was acquired by MRI Software LLC; and
WHEREAS, the Section 8 HC V Program continues to utilize said housing software through MRI Software LLC; and
WHEREAS, purchases from FY 2002 to FY 2024 from Happy Software Inc. and MRI Software LLC were paid through HUD Section 8 HCV grant funds; and
WHEREAS, expenditures through FY 2024 other than those approved in Resolution 2002- 31 for Happy Software Inc. and MRI Software LLC . Products and services have totaled $292,349.49; and
WHEREAS, staff requests the ratification of the $292,349.49 in prior years’ expenditures; and
WHEREAS, staff requests the ratification of Amendment No. 1 to the Master Agreement with MRI Software LLC that includes a not-to-exceed amount of $35,030.00 for MRI Software LLC products and services for FY 2025; and
WHEREAS, staff requests that the City Manager or his designee be authorized to execute agreements and amendments with MRI Software LLC for products and services used to administer the Housing Authority’s Section 8 HCV Program.
NOW, THEREFORE, COMMUNITY DEVELOPMENT COMMISSION -HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1: Prior expenditures totaling $ 292,349.49 for products and services required to administer the Section 8 Housing Choice Voucher Program previously through Happy Software Inc. and now MRI Software LLC are ratified.
Section 2: Amendment No. 1 to the Master Agreement with MRI Software LLC, including payment of the not-to-exceed amount of $35,030.00 in FY 2025 is ratified.
Section 3: The City Manager or his designee is authorized to execute agreements and amendments with MRI Software LLC for products and services used to administer the Housing Authority’s Section 8 HCV Program.
Section 4: The City Clerk shall certify the passage and adoption of this Resolution and enter it into the book of original Resolution.
PASSED and ADOPTED this 7th day of November 2023
Ron Morrison, Mayor
ATTEST:
Shelley Chapel, MMC, City Clerk
APPROVED AS TO FORM:
Barry J. Schultz, City Attorney
AGENDA REPORT
Department: Finance
Prepared by: Kecia Carrasco, Accountant
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Investment transactions for the month ended August 31, 2023.
RECOMMENDATION:
Accept and file the Investment Transaction Ledger for the month ended August 31, 2023.
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
Not Applicable.
EXPLANATION:
In accordance with California Government Code Section 53646 and Section XIIA of the City of National City’s investment policy, a monthly report shall be submitted to the legislative body accounting for transactions made during the reporting period.
The attached listing reflects investment transactions of the City of National City’s investment portfolio for the month ending August 31, 2023.
FINANCIAL STATEMENT:
In this period, there were acquisitions of $783,792.77 and dispositions of $720,153.36.
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Balanced Budget and Economic Development
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Not Applicable
EXHIBIT:
Exhibit A – Investment Transaction Ledger
City of National City
MONTHLY ACCOUNT STATEMENT
AUGUST 1, 2023 THROUGH AUGUST 31, 2023
Information contained herein is confidential. We urge you to compare this statement to the one you receive from your qualified custodian. Please see Important Disclosures.
CHANDLER ASSET MANAGEMENT
chandlerasset.com
Chandler Team:
For questions about your account, please call (800) 317-4747, or contact [email protected]
Custodian
Bank of New York Mellon
Lauren Dehner
(904) 645-1918
Transaction Ledger
As of August 31, 2023
City of National City
Transaction
Type
Settlement
Date CUSIP Quantity Security Description Price Acq/Disp Yield Amount Interest
Pur/Sold Total Amount Gain/Loss
ACQUISITIONS
Purchase 08/01/2023 60934N807 8,509.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 8,509.50 0.00 8,509.50 0.00
Purchase 08/02/2023 60934N807 529.28 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 529.28 0.00 529.28 0.00
Purchase 08/06/2023 60934N807 1,091.25 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 1,091.25 0.00 1,091.25 0.00
Purchase 08/08/2023 60934N807 2,450.00 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 2,450.00 0.00 2,450.00 0.00
Purchase 08/09/2023 60934N807 387.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 387.50 0.00 387.50 0.00
Purchase 08/11/2023 60934N807 629,406.95 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 629,406.95 0.00 629,406.95 0.00
Purchase 08/12/2023 60934N807 4,687.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 4,687.50 0.00 4,687.50 0.00
Purchase 08/14/2023 3133EPSW6 725,000.00 FFCB Note
4.5% Due 8/14/2026
99.770 4.58% 723,332.50 0.00 723,332.50 0.00
Purchase 08/15/2023 60934N807 34,750.00 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 34,750.00 0.00 34,750.00 0.00
Purchase 08/15/2023 60934N807 483.08 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 483.08 0.00 483.08 0.00
Purchase 08/15/2023 60934N807 290.00 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 290.00 0.00 290.00 0.00
Purchase 08/15/2023 60934N807 305.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 305.50 0.00 305.50 0.00
Purchase 08/15/2023 60934N807 1,920.94 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 1,920.94 0.00 1,920.94 0.00
Purchase 08/15/2023 60934N807 5,977.08 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 5,977.08 0.00 5,977.08 0.00
Purchase 08/15/2023 60934N807 6,793.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 6,793.50 0.00 6,793.50 0.00
Purchase 08/15/2023 60934N807 13,111.33 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 13,111.33 0.00 13,111.33 0.00
Execution Time: 9/4/2023 11:48:54 AMChandler Asset Management - CONFIDENTIAL Page 11
Transaction Ledger
As of August 31, 2023
City of National City
Transaction
Type
Settlement
Date CUSIP Quantity Security Description Price Acq/Disp Yield Amount Interest
Pur/Sold Total Amount Gain/Loss
ACQUISITIONS
Purchase 08/15/2023 60934N807 3,768.04 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 3,768.04 0.00 3,768.04 0.00
Purchase 08/15/2023 60934N807 5,212.75 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 5,212.75 0.00 5,212.75 0.00
Purchase 08/15/2023 60934N807 11,647.11 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 11,647.11 0.00 11,647.11 0.00
Purchase 08/18/2023 60934N807 9,128.20 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 9,128.20 0.00 9,128.20 0.00
Purchase 08/21/2023 60934N807 3,305.97 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 3,305.97 0.00 3,305.97 0.00
Purchase 08/21/2023 60934N807 7,168.09 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 7,168.09 0.00 7,168.09 0.00
Purchase 08/25/2023 60934N807 530.42 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 530.42 0.00 530.42 0.00
Purchase 08/25/2023 60934N807 2,310.00 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 2,310.00 0.00 2,310.00 0.00
Purchase 08/25/2023 60934N807 981.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 981.50 0.00 981.50 0.00
Purchase 08/25/2023 60934N807 10,246.55 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 10,246.55 0.00 10,246.55 0.00
Purchase 08/25/2023 60934N807 7,566.35 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 7,566.35 0.00 7,566.35 0.00
Purchase 08/31/2023 60934N807 11,234.38 Federated Investors Govt Oblig Fund Inst.
1.000 4.96% 11,234.38 0.00 11,234.38 0.00
Subtotal 1,508,792.77 1,507,125.27 0.00 1,507,125.27 0.00 Short Sale 08/14/2023 60934N807 -723,332.50 Federated Investors Govt Oblig Fund Inst.
1.000 -723,332.50 0.00 -723,332.50 0.00
Subtotal -723,332.50 -723,332.50 0.00 -723,332.50 0.00
TOTAL ACQUISITIONS 785,460.27 783,792.77 0.00 783,792.77 0.00 Execution Time: 9/4/2023 11:48:54 AMChandler Asset Management - CONFIDENTIAL Page 12
Transaction Ledger
As of August 31, 2023
City of National City
Transaction
Type
Settlement
Date CUSIP Quantity Security Description Price Acq/Disp Yield Amount Interest
Pur/Sold Total Amount Gain/Loss
DISPOSITIONS
Closing
Purchase
08/14/2023 60934N807 -723,332.50 Federated Investors Govt Oblig Fund Inst.
1.000 -723,332.50 0.00 -723,332.50 0.00
Subtotal -723,332.50 -723,332.50 0.00 -723,332.50 0.00
Sale 08/11/2023 91282CBV2 650,000.00 US Treasury Note
0.375% Due 4/15/2024
96.711 5.38% 628,621.09 785.86 629,406.95 -21,962.89
Sale 08/14/2023 60934N807 723,332.50 Federated Investors Govt Oblig Fund Inst.
1.000 4.89% 723,332.50 0.00 723,332.50 0.00
Subtotal 1,373,332.50 1,351,953.59 785.86 1,352,739.45 -21,962.89 Paydown 08/15/2023 43815BAC4 0.00 Honda Auto Receivables Trust 2022-1 A3
1.88% Due 5/15/2026
100.000 0.00 305.50 305.50 0.00
Paydown 08/15/2023 47787JAC2 0.00 John Deere Owner Trust 2022-A A3
2.32% Due 9/16/2026
100.000 0.00 290.00 290.00 0.00
Paydown 08/15/2023 47787NAC3 1,918.70 John Deere Owner Trust 2020-B A3
0.51% Due 11/15/2024
100.000 1,918.70 2.24 1,920.94 0.29
Paydown 08/15/2023 47788UAC6 5,958.83 John Deere Owner Trust 2021-A A3
0.36% Due 9/15/2025
100.000 5,958.83 18.25 5,977.08 1.14
Paydown 08/15/2023 47789QAC4 6,745.12 John Deere Owner Trust 2021-B A3
0.52% Due 3/16/2026
100.000 6,745.12 48.38 6,793.50 0.60
Paydown 08/15/2023 47800AAC4 0.00 John Deere Owner Trust 2022-B A3
3.74% Due 2/16/2027
100.000 0.00 483.08 483.08 0.00
Paydown 08/15/2023 58769KAD6 13,081.77 Mercedes-Benz Auto Lease Trust 2021- B A3
0.4% Due 11/15/2024
100.000 13,081.77 29.56 13,111.33 0.99
Paydown 08/15/2023 89236XAC0 3,763.36 Toyota Auto Receivables 2020-D A3
0.35% Due 1/15/2025
100.000 3,763.36 4.68 3,768.04 0.70
Paydown 08/15/2023 89237VAB5 5,207.97 Toyota Auto Receivables Trust 2020-C A3
0.44% Due 10/15/2024
100.000 5,207.97 4.78 5,212.75 0.40
Execution Time: 9/4/2023 11:48:54 AMChandler Asset Management - CONFIDENTIAL Page 13
Transaction Ledger
As of August 31, 2023
City of National City
Transaction
Type
Settlement
Date CUSIP Quantity Security Description Price Acq/Disp Yield Amount Interest
Pur/Sold Total Amount Gain/Loss
DISPOSITIONS
Paydown 08/15/2023 89240BAC2 11,624.48 Toyota Auto Receivables Owners 2021- A A3
0.26% Due 5/15/2025
100.000 11,624.48 22.63 11,647.11 2.16
Paydown 08/18/2023 43813KAC6 9,113.43 Honda Auto Receivables Trust 2020-3 A3
0.37% Due 10/18/2024
100.000 9,113.43 14.77 9,128.20 1.34
Paydown 08/21/2023 43813GAC5 3,299.48 Honda Auto Receivables Trust 2021-1 A3
0.27% Due 4/21/2025
100.000 3,299.48 6.49 3,305.97 0.06
Paydown 08/21/2023 43815GAC3 7,082.30 Honda Auto Receivables Trust 2021-4 A3
0.88% Due 1/21/2026
100.000 7,082.30 85.79 7,168.09 1.49
Paydown 08/25/2023 05601XAC3 10,167.19 BMW Vehicle Lease Trust 2022-1 A3
1.1% Due 3/25/2025
100.000 10,167.19 79.36 10,246.55 1.52
Paydown 08/25/2023 09690AAC7 7,556.51 BMW Vehicle Lease Trust 2021-2 A3
0.33% Due 12/26/2024
100.000 7,556.51 9.84 7,566.35 0.78
Paydown 08/25/2023 3137FETN0 0.00 FHLMC K073 A2
3.35% Due 1/25/2028
100.000 0.00 530.42 530.42 0.00
Paydown 08/25/2023 3137FG6X8 0.00 FHLMC K077 A2
3.85% Due 5/25/2028
100.000 0.00 2,310.00 2,310.00 0.00
Paydown 08/25/2023 3137FGZT5 0.00 FHLMC K079 A2
3.926% Due 6/25/2028
100.000 0.00 981.50 981.50 0.00
Subtotal 85,519.14 85,519.14 5,227.27 90,746.41 11.47
TOTAL DISPOSITIONS 735,519.14 714,140.23 6,013.13 720,153.36 -21,951.42
OTHER TRANSACTIONS
Interest 08/01/2023 46625HRY8 450,000.00 JP Morgan Chase Callable Note 1X 2/1/2027
3.782% Due 2/1/2028
0.000 8,509.50 0.00 8,509.50 0.00
Interest 08/06/2023 857477BR3 125,000.00 State Street Bank Callable Note Cont 2/6/2025
1.746% Due 2/6/2026
0.000 1,091.25 0.00 1,091.25 0.00
Execution Time: 9/4/2023 11:48:54 AMChandler Asset Management - CONFIDENTIAL Page 14
Transaction Ledger
As of August 31, 2023
City of National City
Transaction
Type
Settlement
Date CUSIP Quantity Security Description Price Acq/Disp Yield Amount Interest
Pur/Sold Total Amount Gain/Loss
OTHER TRANSACTIONS
Interest 08/08/2023 037833EB2 700,000.00 Apple Inc Callable Note Cont 1/8/2026
0.7% Due 2/8/2026
0.000 2,450.00 0.00 2,450.00 0.00
Interest 08/09/2023 69371RR40 155,000.00 Paccar Financial Corp Note
0.5% Due 8/9/2024
0.000 387.50 0.00 387.50 0.00
Interest 08/12/2023 3137EAEP0 625,000.00 FHLMC Note
1.5% Due 2/12/2025
0.000 4,687.50 0.00 4,687.50 0.00
Interest 08/15/2023 438516CJ3 450,000.00 Honeywell Intl Callable Note Cont 01/15/2028
4.95% Due 2/15/2028
0.000 11,137.50 0.00 11,137.50 0.00
Interest 08/15/2023 9128282A7 1,000,000.00 US Treasury Note
1.5% Due 8/15/2026
0.000 7,500.00 0.00 7,500.00 0.00
Interest 08/15/2023 912828P46 1,300,000.00 US Treasury Note
1.625% Due 2/15/2026
0.000 10,562.50 0.00 10,562.50 0.00
Interest 08/15/2023 912828V98 360,000.00 US Treasury Note
2.25% Due 2/15/2027
0.000 4,050.00 0.00 4,050.00 0.00
Interest 08/15/2023 91282CCT6 800,000.00 US Treasury Note
0.375% Due 8/15/2024
0.000 1,500.00 0.00 1,500.00 0.00
Interest 08/31/2023 9128284Z0 675,000.00 US Treasury Note
2.75% Due 8/31/2025
0.000 9,281.25 0.00 9,281.25 0.00
Interest 08/31/2023 91282CFH9 125,000.00 US Treasury Note
3.125% Due 8/31/2027
0.000 1,953.13 0.00 1,953.13 0.00
Subtotal 6,765,000.00 63,110.13 0.00 63,110.13 0.00
Dividend 08/02/2023 60934N807 130,464.50 Federated Investors Govt Oblig Fund Inst.
0.000 529.28 0.00 529.28 0.00
Subtotal 130,464.50 529.28 0.00 529.28 0.00
TOTAL OTHER TRANSACTIONS 6,895,464.50 63,639.41 0.00 63,639.41 0.00 Execution Time: 9/4/2023 11:48:54 AMChandler Asset Management - CONFIDENTIAL Page 15
AGENDA REPORT
Department: Finance
Prepared by: Karla Apalategui, Sr. Accounting Assistant Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Warrant Register #11 for the period of 9/8/23 through 9/14/23 in the amount of $607,705.26
RECOMMENDATION:
Ratify Warrants Totaling $607,705.26
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
Not Applicable.
EXPLANATION:
Per Government Section Code 37208, below are the payments issued for period 9/8/23 – 9/14/23.
Consistent with Department of Finance’s practice, listed below are all payments above $50,000.
Vendor Check/Wire Amount Explanation
Public Emp Ret System 230914 $322,162.85 Service Period 8/22/23-9/4/23 Adminsure Inc 1852 $115,109.46 WC Compensation Replenishment
FINANCIAL STATEMENT:
Warrant total $607,705.26
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Not Applicable
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Not Applicable
EXHIBIT:
Exhibit A - Warrant Register No. 11
PAYEE DESCRIPTION CHK NO DATE AMOUNT
CMO
STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / CMO 365183 9/14/23 186.99 Total for Department 186.99
Housing/Section 8
CAHA 2022-2023 ANNUAL CAHA MEMBERSHIP RENEWAL 365147 9/14/23 900.0 0 Total for Department 900.00
Police
CITY OF SAN DIEGO PARKING CITATION OF NCPD VEH CA/8UKJ987 365150 9/14/23 52.50 GOVCONNECTION INC PANASONIC COMPUTER 365154 9/14/23 5,660.39 LASER SAVER INC CAU TONERS FOR PLOTTER 365158 9/14/23 2,700.59 MALLORY SAFETY & SUPPLY LLC P&E NITRILE GLOVES 365160 9/14/23 12,8 59.70 CORNEJO TRAINING REIM CHIA 365151 9/14/23 557.90
QUIROGA TRAINING REIM CHIA 365174 9/14/23 451.09
SAN DIEGO REGIONAL PUBLIC TRAINING PETTY CASH FELIPE GOMEZ 365176 9/14/23 8.00 Total for Department 22,290.17
Engineering / PW's
AIRGAS USA LLC MOP 45714 SAFETY SU PPLIES FY24-PW/STREET 365138 9/ 14/23 479.81 APS LIGHTING & SAFETY PRODUCTS AUTO SUPPLIES FY24-PW/EQM 365142 9 /14/23 8,272.47 BOOT WORLD MOP 64096 SAFETY APPAREL FY24-PW 365146 9/14/23 1,314.7 4 CALIFORNIA ELECTRIC SUPPLY MOP 45698 ELECTRIC SUPPLIES FY24-PW/F ACI 365148 9/14/23 299.82 GRAINGER MOP 65179 BUILDING SUPPL IES FY24-PW/FACI 365155 9/14/23 1 87.33 MASON'S SAW MOP 45729 LANDSCAPE SUPPLIES FY24-PW/PAR 365161 9/14 /23 117.32 MASTER PERFORMANCE MOP 86883 AUTO PARTS FY24-PW/EQM 365162 9/14/2 3 489.18 O'REILLY AUTO PARTS MOP 75877 AUTO SUPPLIES FY24-PW/EQM 365165 9/ 14/23 321.68 PACIFIC PRODUCTS & SERVICES STREET SIGN SUPPLIES FY24-PW/STREETS 365166 9/14/23 1,482.53 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365167 9/14/23 349.77 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365168 9/14/23 142.73 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365169 9/14/23 96.11 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365170 9/14/23 10.15 PRO BUILD COMPANY MOP 45707 GENERAL SUPPLIES FY24-PW/STREE 365172 9/14/23 1,795.42 PRUDENTIAL OVERALL SUPPLY LAUNDRY SERVICES / PWS 365173 9/14/23 29 6.69 SASE COMPANY INC STREET SUPPLIES FY24-PW/STREETS 365177 9/14/23 1, 745.93 SDG&E GAS AND ELECTRIC UTILITIES FOR STREETS F 365178 9/14/23 56.9 8 SITEONE LANDSCAPE SUPPLY LLC MOP 69277 LANDSCAPE SUPPLIES FY24-P W 365181 9/14/23 204.75 SONSRAY MACHINERY LLC PSO092388-2 AUTO SUPPLIES FY24-PW/EQM 36518 2 9/14/23 720.11 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / PW 365183 9/14/23 69.33 VALLEY INDUSTRIAL SPECIALTIES MOP 46453 BUILDING SUPPLIES FY23-P W/FACI 365186 9/14/23 899.75 VISTA PAINT MOP 68834 STREET PAINT SUPPLIES FY24-PW/ 365188 9/14/ 23 435.98 WAXIE SANITARY SUPPLY MISC JANITO RIAL SUPPLIES FY24-PW/FACILIT 36 5189 9/14/23 3,362.27 WHITE CAP, LP SAFETY SUPPLIES FY24-PW/STREETS 365190 9/14/23 486.3 7 WARRANT REGISTER # 11
9/14/2023
1/3Page 223 of 368
PAYEE DESCRIPTION CHK NO DATE AMOUNT
WARRANT REGISTER # 11
9/14/2023
WILLY'S ELECTRONIC SUPPLY MOP 45763 ELECTRIC SUPPLIES FY24-PW/EQ M 365191 9/14/23 67.57 WSP USA INC T&A 90623 - 3410 VALLEY ROAD - ENG/PW 365192 9/14/23 6 ,537.64 Total for Department 30,242.43
NSD
MARTINEZ HOUSING RELOCATION RUSSELL MARTINEZ 365136 9/12/23 5,060. 00 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / NSD 365183 9/14/23 714.91 Total for Department 5,774.91
RISK
PILAPIL LIABILITY CLAIM COST 365171 9/14/23 2,518.33
Total for Department 2,518.33
Building/Planning
SILVER & WRIGHT LLP SILVER & WRIGHT INVOICE 365180 9/14/23 6,364.3 9 Total for Department 6,364.39
Fire
ACE UNIFORMS & ACCESSORIES INC UNIFORMS, JACKETS, PATCHES, SEWIN G AND 365137 9/14/23 963.66 AMEDEE REIMBURSEMENT TRAVEL EXPENSE, WALTER AME 365141 9/14/23 23. 58 AT & T INC MONTHLY PHONE SERVICES TO RECEIVE/FIRE 365143 9/14/23 2 ,482.98 ROBINSON REIMBURSEMENT FOR POV MILEAGE, S ROBINSO 365175 9/14/23 1 ,008.13 Total for Department 4,478.35
Community Services/Nutrition/Library
ALDEMCO FOOD 365139 9/14/23 1,834.57
ALL FRESH PRODUCTS CONSUMABLES 365140 9/14/23 1,164.92 PRUDENTIAL OVERALL SUPPLY LAUNDRY & CONSUMABLES 365173 9/14/23 577 .54 SYSCO SAN DIEGO INC FOOD 365184 9/14/23 7,652.36
CASTILLO RFW DJ/MC FOR AGE FRIENDLY DANCE 365149 9/14/23 2,450.00 JERRYS PHOTO BOOTH RFW PHOTO BOOT H RENTAL FOR AGE FRIENDLY 365157 9/14/23 549.00 BAKER & TAYLOR BAKER AND TAYLOR/BOOKS/FY24 365145 9/14/23 1,764.24 MIDWEST TAPE, LLC MIDWEST TAPE/BLU- RAYS AND DVDS/FY24 365163 9/14 /23 960.99 OLD TOWN TROLLEY TOURS PARKS PASS GRANT/OLD TOWN TROLLEY/ 365164 9/14/23 2,100.00 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / LIBRARY 36 5183 9/14/23 75.42 Total for Department 19,129.04
MIS
AT&T SBC - AT&T FOR FY24 365144 9/14/23 17,298.43
COX COMMUNICATIONS COX DATA, VIDEO SERVICES FY24 365152 9/14/23 79 8.48 GRANICUS LLC GOVACCESS - MAINTENANCE, HOSTING 365156 9/14/23 21,62 0.24 2/3Page 224 of 368
PAYEE DESCRIPTION CHK NO DATE AMOUNT
WARRANT REGISTER # 11
9/14/2023
LEGAL FILES SOFTWARE, INC. LEGAL FILES SUPPORT 365159 9/14/23 1,78 7.00 SHARP ELECTRONICS CORPORATION SHARP INVOICE FY24 365179 9/14/23 4, 446.76 TYLER TECHNOLOGIES INC TYLER MUNIS / CAD 365185 9/14/23 9,750.31 VERIZON WIRELESS VERIZON CELLULAR SERVICES FOR FY24 365187 9/14/2 3 12,223.53 WILLY'S ELECTRONIC SUPPLY MOP 45763 ELECTRIC SUPPLIES FY24- MIS 3 65191 9/14/23 8.77 Total for Department 67,933.52
A/P Warrant Total 159,818.13
WIRED PAYMENTS
Police
U S BANK CREDIT CARD EXPENSES / PD 870809 9/8/23 3,035.46 Engineering / PW's
U S BANK SANDBAGS FOR HURICANE HILARY AUGUST 2023 123338 9/12/23 9 94.40 Fire
U S BANK CREDIT CARD EXPENSES / FIRE 123338 9/12/23 629.44 U S BANK CREDIT CARD EXPENSES / FIRE 870809 9/8/23 5,460.52 CMO
U S BANK CREDIT CARD STATEMENT - FRANK PARRA 123338 9/12/23 495.00 Finance
PUBLIC EMP RETIREMENT SYSTEM SERVICE PERIOD 08/22/23 -09/04/23 23 0914 9/14/23 322,162.85 Human Resources
ADMINSURE INC WORKERS' COMPENSATION REPLENISHMENT 1852 9/11/23 11 5,109.46 GRAND TOTAL 607,705.26
3/3Page 225 of 368
AGENDA REPORT
Department: Finance
Prepared by: Karla Apalategui, Sr. Accounting Assistant Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Warrant Register #12 for the period of 9/15/23 through 9/21/23 in the amount of $2,130,294.40
RECOMMENDATION:
Ratify Warrants Totaling $2,130,294.40
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
Not Applicable.
EXPLANATION:
Per Government Section Code 37208, below are the payments issued for period 9/15/23 – 9/21/23. Consistent with Department of Finance’s practice, listed below are all payments above $50,000.
Vendor Check/Wire Amount Explanation
SDG&E 365243 $114,518.72 Gas & Electric for Facilities for FY24 City of Encinitas 365204 $50,358.00 RSWA – Environmental Enhancement Fund City of Vista 365209 $77,648.00 RSWA – Environmental Enhancement Fund Kimley Horn 365220 $86,901.00 CIP 20-09 NC Eastside I-805 Communi-Eng
FINANCIAL STATEMENT:
Warrant total $2,130,294.40
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Not Applicable
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Not Applicable
EXHIBIT:
Exhibit A - Warrant Register No. 12
PAYEE DESCRIPTION CHK NO DATE AMOUNT
City Attorney
STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / CAO 365251 9/21/23 266.38 DEVANEY PATE MORRIS & CAMERON L EGAL SERVICES / CAO 365213 9/21/23 2,643.62 Total for Department 2,910.00
Police
ACE UNIFORMS & ACCESSORIES INC NEW HIRE GEAR / POLICE 365194 9/21 /23 1,652.01 CYRACOM INTERNATIONAL, INC INTERPRETATION SERVICE 365212 9/21/23 1 38.45 FON JON PET CARE CENTER BAUTISTA / DAVIS K9 FOOD 365216 9/21/23 36 6.35 MAN K9 INC SEPTEMBER MANDATORY K9 TRAINING 365222 9/21/23 1,520.00 PC SPECIALISTS INC MISC MIS EQUIP 365230 9/21/23 272.15 PORAC RESERVE OFFICER LDF 365231 9/21/23 12.00
PRO BUILD COMPANY MOP 20462 PD SUPPLIES 365234 9/21/23 626.96 QUAID HARLEY-DAVIDSON INC 2023 HARLEY DAVIDSON (GRANT FUNDED) 365 236 9/21/23 37,042.11 S D COUNTY SHERIFF'S DEPT JULY RANGE USE 365240 9/21/23 900.00 SAN DIEGO PET SUPPLY MOP 02975 PD K9 SUPPLIES 365242 9/21/23 637.9 7 SMART SOURCE OF CALIFORNIA LLC MOP 24302 PD PRINTING 365248 9/21/ 23 36.98 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / POLICE 365 251 9/21/23 266.98 THOMSON REUTERS INVESTIGATIONS SOFTWARE 365253 9/21/23 1,383.90 VCA MAIN ST ANIMAL HOSPITAL K9 TYSON 365256 9/21/23 333.50 GONZALES TRAINING POST ADV SUB PEER SUPPORT 365217 9/21/23 384.00 MCGOUGH TRAINING ADV LDG ASSRT SPRV 365224 9/21/23 627.66 RUDE TRAINING ADV LDG 365239 9/21/23 697.19
SHANAHAN TRAINING ADV SUB ASSRTV SPRVSN 365247 9/21/23 621.85 Total for Department 47,520.06
Engineering / PW's
AIRGAS USA LLC MOP 45714 GENERAL SUPPLIES FY24-PW/SEWER 365195 9/ 21/23 254.36 HAAKER EQUIPMENT COMPANY PARTS AND SMALL EQUIMPMENT FY24-PW/EQM 3 65218 9/21/23 1,609.21 MASTER PERFORMANCE MOP 86883 AUTO SUPPLIES FY24-PW/EQM 365223 9/2 1/23 439.37 NATIONAL CITY CAR WASH CAR WASH SERVICES FOR FLEET FY24-PW/EQM 36 5225 9/21/23 1,298.70 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365228 9/21/23 344.65 PARTS AUTHORITY METRO MOP 75943 AUTO SUPPLIES FY24-PW/EQM 365229 9/21/23 221.15 POWERSTRIDE BATTERY CO INC AUTO BATTERIES FY24-PW/EQM 365232 9/21 /23 1,450.55 PRO BUILD COMPANY MOP 20462 / SUPPLIES FOR PW'S 365234 9/21/23 626 .25 PRUDENTIAL OVERALL SUPPLY LAUNDRY 365235 9/21/23 211.74 RED WING BUSINESS WORK BOOTS FO R STREETS FY24-PW/STREETS 365237 9 /21/23 1,524.20 SAN DIEGO MECHANICAL ENERGY MAINTENANCE OF PUMP STATIONS FY24-PW /SEW 365241 9/21/23 4,534.37 SDG&E GAS AND ELECTRIC FOR FACILITIES FOR FY24 365243 9/21/23 114, 518.72 SDG&E GAS AND ELECTRIC UTILITIES FOR STREETS A 365244 9/21/23 11,2 55.75 SEDANO FORD OF LM, INC. R&M CITY VEHICLES FY24-PW/EQM 365246 9/21 /23 119.35 SOUTHWEST SIGNAL SERVICE INTERSECTION MAINTENANCE FOR STREETS FY 2 365250 9/21/23 22,519.79 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / PUBLIC WORKS 365251 9/21/23 418.57 UNDERGROUND SERVICE ALERT UNDERGROUND SERVICE ALERT FY24-PW/SEWER 365255 9/21/23 515.57 WARRANT REGISTER # 12
9/21/2023
1/4Page 227 of 368
PAYEE DESCRIPTION CHK NO DATE AMOUNT
WARRANT REGISTER # 12
9/21/2023
VISTA PAINT MOP 68834 STREET STRIPING SUPPLIES FY24- 365257 9/21/ 23 435.98 VULCAN MATERIALS COMPANY ASPHALT MATERIALS FOR STREETS FY24-PW/ST 365258 9/21/23 710.38 WESTFLEX INDUSTRIAL MOP 63850 SEWER LINE SUPPLIES FY24-PW 365259 9/21/23 50.00 WETMORES MOP 80333 AUTO SUPPLIES FY24-PW/EQM 365260 9/21/23 568.70 WHITAKER BROTHERS WIDMER T-LED- 3 TIMESTAMP MACHINE FY24-PW 365261 9/21/23 1,183.41 WILLY'S ELECTRONIC SUPPLY MOP 45763 ELECTRIC SUPPLIES FY24-PW/EQ M 365262 9/21/23 33.28 ATLAS TECHNICAL CONSULTANTS, CI P 19-20 SWEETWATER RD BIKEWAY- ENG/PW 365199 9/21/23 4,509.00 CANON SOLUTIONS AMERICA INC. MN TENANCE EQPMENT BASE CHRGE- PRD 9/1/23 365201 9/21/23 134.53 CANTWELL REFUND OF T&A 90529- ENG/PW 365202 9/21/23 16,000.00 D-MAX ENGINEERING INC T&A 90617- 837 W 19TH ST- ENG/PW 365214 9/2 1/23 2,703.32 D-MAX ENGINEERING INC CIP 19-20 SWEETWATER RD BIKEWAY- ENG/PW 365 215 9/21/23 37.56 INNOVATIVE CONSTRUCTION CIP 22- 06 MLK COMM CNTR- ENG/PW 365219 9/ 21/23 10,071.00 KIMLEY HORN CIP 20-09 NC EASTSIDE I-805 COMMUNI- ENG 365220 9/21 /23 86,901.00 NOSAL REFUND OF T&A 90656- ENG/PW 365226 9/21/23 4,269.74 NV5 INC T&A 90645- 1300 WILSON AVE- ENG/PW 365227 9/21/23 185.40 SOLANA CENTER SUPPORT SERVI CES- ENG/PW 365249 9/21/23 395.00 Total for Department 290,050.60
Finance
ALLIANT INSURANCE SERVICES INC RSWA - SPECIAL LIABILITY INS EFF 09/29/2 365198 9/21/23 6,071.76 BRINK'S INCORPORATED TRANSPORTATION - BILLING PERIOD 09/01/23 365 200 9/21/23 563.02 CITY OF DEL MAR RSWA - PAYMENT FOR HHW EDUCATIONAL FY 23 365203 9 /21/23 12,620.00 CITY OF ENCINITAS RSWA - ENVI RONMENTAL ENHANCEMENT FUND 365204 9 /21/23 50,358.00 CITY OF ESCONDIDO RSWA - PAYMENT FOR HHW EDUCATIONAL FY 23 365205 9/21/23 7,000.00 CITY OF NATIONAL CITY RSWA - ENVIRONMENTAL ENHANCEMENT FUND 3652 06 9/21/23 41,005.00 CITY OF POWAY RSWA - ENVIRONMENTAL ENHANCEMENT FUND 365207 9/21/ 23 45,384.00 CITY OF SOLANA BEACH RSWA - PAYMENT FOR HHW EDUCATIONAL FY 23 365 208 9/21/23 14,985.00 CITY OF VISTA RSWA - ENVIRONMENTAL ENHANCEMENT FUND 365209 9/21/ 23 77,648.00 STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES FINANCE 3652 51 9/21/23 445.86 WOODRUFF & SMART RSWA - GENERA L MANAGER MONTHLY SEPT 2023 365263 9/21/23 6,500.00 Total for Department 262,580.64
NSD
ACE UNIFORMS & ACCESSORIES INC ACE UNIFORMS / NSD 365194 9/21/23 1 50.85 Total for Department 150.85
CMO
2-1-1 SAN DIEGO CITY OF NATIONAL CITY SUPPORT SERVICE - 365193 9 /21/23 11,716.40 Total for Department 11,716.40
Planning / Building
ROE TRAINING REIMB / GAS FOR CAR RENTAL 365238 9/21/23 50.00 2/4Page 228 of 368
PAYEE DESCRIPTION CHK NO DATE AMOUNT
WARRANT REGISTER # 12
9/21/2023
Total for Department 50.00
Community Services/Nutrition/Library
CONSTANT CONTACT INC RFW CONSTANT CONTACT EMAIL PLUS 365210 9/21/ 23 1,122.00 YEH REFUND FOR SUMMER CAMPERS 365265 9/21/23 270.00
ALDEMCO FOOD 365196 9/21/23 4,105.62
ALL FRESH PRODUCTS FOOD 365197 9/21/23 125.37
COZZINI BROS., INC. KNIFE CLEANING SERVICE 365211 9/21/23 52.50 PRUDENTIAL OVERALL SUPPLY LAUNDRY 365235 9/21/23 179.96 SEAPORT MEAT COMPANY FOOD 365245 9/21/23 267.29
SYSCO SAN DIEGO INC FOOD 365252 9/21/23 4,453.70
STAPLES BUSINESS ADVANTAGE MOP 45704 OFFICE SUPPLIES / LIBRARY 36 5251 9/21/23 129.73 T'S & SIGNS INC T'S & SIGNS/CITY GUIDE/FY24 365254 9/21/23 2,528.4 4 Total for Department 13,234.61
Fire
L N CURTIS & SONS AX7NP-NX-PS TFT, FNHF X 6NHF BALL / FIRE 365221 9/21/23 4,675.44 PREMIER PRINT SOURCE INC 10X10 CANOPY /FIRE 365233 9/21/23 893.40 Total for Department 5,568.84
Housing/Section 8
WSP USA INC FOCUSED GENERAL PLAN UPDATE 365264 9/21/23 28,471.49 Total for Department 28,471.49
A/P Total 662,253.49
PAYROLL
Pay period Start Date End Date Check Date
20 9/5/2023 9/18/2023 9/27/2023 1,379,381.42
WIRED PAYMENTS
Engineering / PW's
U S BANK US BANK AUGUST 2024- ENG/PW 957187 9/20/23 2,784.92 MIS
U S BANK CREDIT CARD EXPENSES 167185 9/19/23 2,690.50
Human Resources
PAYCHEX BENEFIT TECH INC BENETRA C ESR SERVICES BASE FEE - SEPTEMB 666248 9/15/23 660.71 Engineering / PW's
3/4Page 229 of 368
PAYEE DESCRIPTION CHK NO DATE AMOUNT
WARRANT REGISTER # 12
9/21/2023
CITY NATIONAL BANK ENERGY RETR OFIT PROJECT LEASE PMT #54 1866 9/2 1/23 43,101.10 Fire
U S BANK CREDIT CARD EXPENSES 167185 9/19/23 97.35
U S BANK US BANK AUGUST 2024- FIRE 957187 9/20/23 1,854.90 City Attorney
U S BANK CREDIT CARD EXPENSES / CAO 167185 9/19/23 63.81 SECTION 8 HAPS Start Date End Date
9/15/2023 9/21/2023 37,406.20
GRAND TOTAL 2,130,294.40
4/4Page 230 of 368
AGENDA REPORT
Department: Engineering
Prepared by: Stephen Manganiello, Director of Public Works/City Engineer Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Second Reading and Adoption of Ordinance Establishing Speed Limits Based on Engineering and Traffic Surveys
RECOMMENDATION:
Adopt an Ordinance Establishing Speed Limits on Various Streets B ased on Engin eering and Traffic Surveys and Authorizing the Director of Public Works to Post Speed Limit Signs Consistent with the Recommendations of the Engineering and Traffic Surveys.
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
At their meeting on August 16, 2023, the Traffic Safety Committee voted unanimously in support of the recommendations of the Engineering and Traffic Surveys.
EXPLANATION:
At their R egular meeting o n October 17, 2023 , the City Council held a Public H earing and introduced the Ordinance. Staff provided a presentation and responded to questions from the City Council. The following background is provided.
Section 22357 of the State of California Vehicle Code (CVC) permits local authorities to establish speed limits greater than the prima facie speed limit of 25 miles per hour (mph) when, on the basis of an engineering and traffic survey (E&TS), the local authority determines that a speed greater than 25 mph would facilitate the orderly movement of vehicular traffic and would be reasonable and safe. Section 627 of the CVC and Section 2B.13 of the California Department of Transportation (Caltrans) Manual on Uniform Traffic Control Devices (CA -MUTCD) outline the following criteria to be considered as part of conducting an E&TS:
1) Prevailing speeds as determined by traffic engineering measurements. 2) Accident Records.
3) Highway, traffic, and roadside conditions not readily apparent to the driver. 4) Residential Density.
5) Safety of bicyclists and pedestrians, with increased consideration for vulnerable pedestrian groups including children, seniors, persons with disabilities, users of personal assistive mobility devices, and the unhoused.
The process begins with establishing speed zones to protect the public from the unreasonable behavior of reckless, unreliable, or otherwise dangerous drivers. Speed zon es are also established to advise drivers of road conditions or hazards that may not be readily apparent to a
reasonable driver. For that reason, a field review of related road/traffic variables is conducted which considers the analyti cal data and accident history of a particular roadway segment to determine a safe and reasonable speed limit. Next the criteria listed above in combination with other factors such as 85th percentile speed, pace, and incremental changes in speeds from one zone to the next, are analyzed using the methodologies established in the CVC and CA-MUTCD to recommend speed limits.
The CVC and CA -MUTCD recommend establishing speed limits at or near the 85th percentile speed, which is defined as the speed at or below which 85 percent of traffic is moving during free- flow conditions. Speed limits may, however, be established below the 85th percentile speed (within specified thresholds) if conditions are met for criteria 2) through 5) above. Speed limits established on this basis conform to the consensus of those who drive on the roadways as to what speed is reasonable and safe, and are not dependent on the judgment of one or a few individuals.
State Assembly Bills (AB) 43 and 1938, which went into effect on January 1, 2022 and January 1, 2023, respectively, provide local agencies greater flexibility in setting and reducing speed limits.
For example, local agencies may establish a speed limit of 20 mph or 25 mph if criteria is met for defining a “business activity distr ict”. The legislation required updates to the CVC and CA-MUTCD, the last of which was made available to the public in March 2023.
E&TS must be completed and certified by a registered professional Civil or Traffic Engineer at least once every 5, 7 or 14 y ears, in compliance with CVC Section 40802, to re -evaluate non- statuary speed limits on local roadways and allow for enforcement using radar, laser or other electronic devices. The previous Citywide E&TS for National City were completed in 2017.
Recommended speed limits were subsequently adopted by City Council via ordinance in December 2017 and physically posted on the roadways by City Public Works crews shortly thereafter. Since over five years have passed, the National City Engineering & Public Works Department authorized STC Traffic (through an “On -Call” Professional Engineering Services contract) to conduct new E&TS for all Arterial and Collector roadways identified in the National City General Plan Circulation Element.
STC Traffic completed the E&TS for 106 individual roadway segments in accordance with the procedures established by Section 2B.13 of the CA -MUTCD and consistent with all applicable provisions of the CVC. Exhibit A includes figures highlighting the location of the study roadway segments, existing speed limits, changes to speed limits, and recommended speed limits. STC Traffic supported City staff with formal presentations to the Traffic Safety Committee on April 12, 2023 (preliminary findings) and August 16, 2023 (final recommendations). All members of the Traffic Safety Committee were present and voted unanimously in support of the recommendations of the E&TS at their meeting on August 16, 2023. The E&TS summary and recommendations is attached as Exhibit B. STC Traffic applied many of th e provisions from AB 43 and AB 1938 to maintain or reduce speed limits, where applicable, including establishment of lower speed limits within a business activity district. If adopted by City Council, 81 speed limits will remain the same, 25 will decrease, and zero of the existing speed limits will increase. A copy of the full E&TS report and certification summary sheets are available in the Office of the City Engineer.
FINANCIAL STATEMENT:
Funding to purchase and install speed limit signs is available through the Public Works Streets Division M&O budget for traffic signs.
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Public Safety
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.
CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Second Reading and Adoption
EXHIBITS:
Exhibit A – Speed Limit Figures
Exhibit B – Engineering and Traffic Survey Summary and Recommendations Exhibit C – Ordinance
Exhibit A
Speed Limit Figures
LEGEND
Study Segment
City Limits
X
NotT o Scale
PARADISE VALLEY RD
MANCHESTER ST
PLAZA BLVD
16TH ST
16TH ST
16TH ST
24TH ST
24TH ST
18TH ST
18TH ST
18TH ST
CIVIC CENTER DR
30TH ST
33RD ST
32ND ST
19TH ST
MILE OF CARS WY
BAY MARINA DR
PLAZA BLVD
8TH ST
8TH ST
8TH ST
HARBISON AVE
4TH ST
4TH ST
DIVISION ST
DIVISION ST
MAIN ST
D AVE
HIGHLAND AVE
43RD ST
PALM AVE
PALM AVE
NEWELL ST
EUCLID AVE
EUCLID AVE
L AVE
L AVE
L AVE
SWEETWATER RD
GROVE ST
SWEETWA
TER RD
PLAZA BONITA RD
VALLEY RD
VALLEY RD
PLAZA BONITA CENTERWAY
HIGHLAND AVE
D AVE
WILSON AVE
CLEVELAND AVE
MCKINLEY AVE
TIDELANDS AVE
MARINA WY
WEST AVE
ROOSEVELT AVE
NATIONAL CITY BLVD
HOOVER AVE
NATIONAL CITY BLVD
HOOVER AVE
HARBOR DR
D AVE
CLAIRMONT AVE
20TH ST
24TH ST
2ND AVE
COOLIDGE AVE
2ND ST
Pacific
Ocean
805
INTERSTATE
5 INTERSTATE
5 INTERSTATE
805
INTERSTATE
54 54
54 1
2 3
4 5
6 7
9 101
10 65 17
21 16
54 55
56 62
57 58
48 49
63 64
44 45
46 51
50 38
30 61
29 59
60 24
25 26
27 22
23 28
34 33
32 36
37 47
42 43
52 31
35 20
66 67
40 41
39 68
69 70
13 12
11 14
15 8
18 19
71 72
73 74
75 76
77 78
79 80
81 82
83 84
85 86
87 88
89 90
91 92
94 95
96 97
98 99
102
103
104
105
106
53 93
100
Figure 2-1
Study Segment LocaƟons
City of NaƟonal City, Engineering and Traffic Survey for Speed Limits
Speed Limit
25 MPH
30 MPH
35 MPH
40 MPH
45 MPH
LEGEND
Study Segment
City Limits
X
NotT o Scale
Pacific
Ocean
805
INTERSTATE
5 INTERSTATE
5 INTERSTATE
805
INTERSTATE
54 54
54 PARADISE VALLEY RD
MAN
CHESTER ST
PLAZA BLVD
16TH ST
16TH ST
16TH ST
24TH ST
24TH ST
18TH ST
18TH ST
18TH ST
CIVIC CENTER DR
30TH ST
33RD ST
32ND ST
19TH ST
MILE OF CARS WY
BAY MARINA DR
PLAZA BLVD
8TH ST
8TH ST
8TH ST
HARBI
SON AVE
4TH ST
4TH ST
DIVISION ST
DIVISION ST
MAIN ST
D AVE
HIGHLAND AVE
43RD ST
PALM AVE
PALM AVE
NEWELL ST
EUCLID AVE
EUCLID AVE
L AVE
L AVE
L AVE
SWE
ETWATE
R R
D
GROVE ST
SWEETWA
TER RD
PLAZA BONITA RD
VALLEY RD
VALLEY RD
PLAZA BONITA CENTERWAY
HIGHLAND AVE
D AVE
WILSON AVE
CLEVELAND AVE
MCKINLEY AVE
TIDELANDS AVE
MARINA WY
WEST AVE
ROOSEVELT AVE
NATIONAL CITY BLVD
HOOVER AVE
NATIONAL CITY BLVD
HOOVER AVE
HARBOR DR
D AVE
CLAIRMONT AVE
20TH ST
24TH ST
2ND AVE
COOLIDGE AVE
2ND ST
71 17
21 16
57 46
30 24
22 28
36 47
31 20
7063
64 1
2 3
4 5
6 7
9 101
10 65
54 55
56 62
58 48
49 44
45 51
50 38
61 29
59 60
25 26
27 23 34
33 32
37 42
43 53
52 35
66 67
40 41
39 68
69 13
12 11
14 15
8 18
19 72
73 74
75 76
77 78
79 80
81 82
83 84
85 86
87 88
89 90
91 92
93 95
96 97
98 99
102
103
104
105
106
94 100
Figure 2-2
Study Segment ExisƟng Speed Limits
City of NaƟonal City, Engineering and Traffic Survey for Speed Limits
NO CHANGE
SPEED LIMIT DECREASED
LEGEND
Study Segment
City Limits
X
NotT o Scale
Pacific
Ocean
805
INTERSTATE
5 INTERSTATE
5 INTERSTATE
805
INTERSTATE
54 54
54 DIVISION ST
L AVE
ROOSEVELT AVE
HOOVER AVE
PARADISE VALLEY RD
MAN
CHESTER ST
PLAZA BLVD
16TH ST
16TH ST
16TH ST
24TH ST
24TH ST
18TH ST
18TH ST
18TH ST
CIVIC CENTER DR
30TH ST
33RD ST
32ND ST
19TH ST
MILE OF CARS WY
BAY MARINA DR
PLAZA BLVD
8TH ST
8TH ST
8TH ST
HARBI
SON AVE
4TH ST
4TH ST
DIVISION ST
MAIN ST
D AVE
HIGHLAND AVE
43RD ST
PALM AVE
PALM AVE
NEWELL ST
EUCLID AVE
EUCLID AVE
L AVE
L AVE
SWE
ETWATE
R R
D
GROVE ST
SWEETWA
TER RD
PLAZA BONITA RD
VALLEY RD
VALLEY RD
PLAZA BONITA CENTERWAY
HIGHLAND AVE
D AVE
WILSON AVE
CLEVELAND AVE
MCKINLEY AVE
TIDELANDS AVE
MARINA WY
WEST AVE
NATIONAL CITY BLVD
HOOVER AVE
NATIONAL CITY BLVD
HARBOR DR
D AVE
CLAIRMONT AVE
20TH ST
24TH ST
2ND AVE
COOLIDGE AVE
2ND ST
46 21
17 16
57 63
64 22
28 32
36 20
71 1
2 3
4 5
6 7
9 101
10 65
54 55
56 62
58 48
49 44
45 51
50 38
30 61
29 59
60 25
26 27
23 34
33 37
47 42
43 53
52 31
35 66
67 40
41 39 68
69 70
13 12
11 14
15 8
18 19
72 73 74
75 76
77 78
79 80
81 82
83 84
85 86
87 88
89 90
91 92
94 95
96 97
98 99
102
103
104
105
106
93 100
Figure 5-1
Study Segment Speed Limit Changes
City of NaƟonal City, Engineering and Traffic Survey for Speed Limits
Speed Limit
25 MPH
30 MPH
35 MPH
40 MPH
45 MPH
LEGEND
Study Segment
City Limits
X
NotT o Scale
Pacific
Ocean
805
INTERSTATE
5 INTERSTATE
5 INTERSTATE
805
INTERSTATE
54 54
54 L AVE
ROOSEVELT AVE
HOOVER AVE
DIVISION ST
PARADISE VALLEY RD
MAN
CHESTER ST
PLAZA BLVD
16TH ST
16TH ST
16TH ST
24TH ST
24TH ST
18TH ST
18TH ST
18TH ST
CIVIC CENTER DR
30TH ST
33RD ST
32ND ST
19TH ST
MILE OF CARS WY
BAY MARINA DR
PLAZA BLVD
8TH ST
8TH ST
8TH ST
HARBI
SON AVE
4TH ST
4TH ST
DIVISION ST
MAIN ST
D AVE
HIGHLAND AVE
43RD ST
PALM AVE
PALM AVE
NEWELL ST
EUCLID AVE
EUCLID AVE
L AVE
L AVE
SWE
ETWATE
R R
D
GROVE ST
SWEETWA
TER RD
PLAZA BONITA RD
VALLEY RD
VALLEY RD
PLAZA BONITA CENTERWAY
HIGHLAND AVE
D AVE
WILSON AVE
CLEVELAND AVE
MCKINLEY AVE
TIDELANDS AVE
MARINA WY
WEST AVE
NATIONAL CITY BLVD
HOOVER AVE
NATIONAL CITY BLVD
HARBOR DR
D AVE
CLAIRMONT AVE
20TH ST
24TH ST
2ND AVE
COOLIDGE AVE
2ND ST
32 31
20 64
63 36
93 21
22 17
16 71
57 1
2 3
4 5
6 7
9 101
10 65
54 55
56 62
58 48
49 44
45 46
51 50
38 3061
29 59
60 24
25 26
27 23
28 34
33 37
47 42
43 53
52 35
66 67
40 41
39 68
69 70
13 12
11 14
15 8
18 19
72 73 74
75 76
77 78
79 80
81 82
83 84
85 86
87 88
89 90
91 92
95 96
97 98
99 100
102
103
104
105
106
94 Figure 5-2
Study Segment Recommended Speed Limit PosƟngs
City of NaƟonal City, Engineering and Traffic Survey for Speed Limits
Exhibit B
Engineering and Traffic Survey
Summary and Recommenda�ons
1 N. City Limit 8th Street 45 49 45 39-48 74% 45 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
2 8th Street Civic Center
Drive 45 43 39 34-43 85% 40 Reduce to 40 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
3 Civic Center
Drive 19th Street 35 37 31 25-34 63% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
4 19th Street Bay Marina
Drive 35 36 31 28-37 68% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
5 Bay Marina
Drive 32nd Street 35 36 32 26-35 72% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
6 Bay Marina
Drive 32nd Street 25 33 28 24-33 74% 25 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
7 Civic Center
Drive 19th Street 35 36 31 27-36 78% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
8 19th Street Bay Marina
Drive 35 38 34 29-38 70% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
9 14th Street 19th Street 25 28 23 18-27 73% 25 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
10 19th Street 23rd Street 30 31 24 22-31 70% 30 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
11 Civic Center
Drive 18th Street 30 38 32 29-38 68% 30 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
12 18th Street 24th Street 30 30 25 21-30 83% 25 Reduce to 25 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - Transit Station (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
13 22nd Street Mile of Cars
Way 25 28 24 21-30 84% 25 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
14 Mile of Cars
Way 30th Street 35 38 33 29-38 72% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
15 30th Street 33rd Street 35 32 27 23-32 80% 30 Reduce to 30 mph Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTS
Harbor Drive
Tidelands Avenue
Marina Way
Cleveland Avenue
Mckinley Avenue
Wilson Avenue
Hoover Avenue
STREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
16 Division Street 8th Street 30 34 30 25-34 84% 30 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
17 8th Street Civic Center
Drive 30 26 23 19-28 95% 25 Reduce to 25 mph Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
18 Civic Center
Drive 16th Street 30 30 24 20-29 69% 25 Reduce to 25 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Accident rate higher than statewide average (CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E). 19 16th Street 18th Street 30 30 23 18-27 66% 25 Reduce to 25 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CA-MUTCD Section 2B.13, Option 16B (pace).
20 Division Street 8th Street 35 37 33 29-38 91% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
21 8th Street 18th Street 35 36 32 28-37 87% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B (safety of bicyclists and pedestrians, vulnerable pedestrian groups - civic center, public library).
22 18th Street 30th Street 35 39 34 30-39 83% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
23 30th Street S. City Limit 35 41 35 30-39 81% 35 No change Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
24 Division Street 8th Street 25 29 26 22-31 96% 25 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
25 8th Street 12th Street 25 26 24 19-28 100% 25 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
26 12th Street 18th Street 25 31 28 24-33 94% 25 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B (safety of bicyclists and pedestrians, vulnerable pedestrian groups - community park, youth center, senior housing, middle school). 27 18th Street 24th Street 35 37 32 28-37 68% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(C); CA-MUTCD Section 2B.13, Option 29A.3 (residential density). 28 24th Street 30th Street 35 32 29 23-32 82% 30 Reduce to 30 mph Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
Roosevelt Avenue
West Avenue
National City Blvd
D Avenue
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
29 N. City Limit Division St 30 38 33 29-38 77% 30 No change Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
30 2nd Street 8th Street 30 35 31 25-34 78% 25 Reduce to 25 mph Segment qualifies as a Business Activity District per CVC 22358.9 (b) (1,2, & 4). (b)As used in this section, a "business activity district" is that portion of a highway and the property contiguous thereto that includes central or neighborhood downtowns, urban villages, or zoning designations that prioritize commercial land uses at the downtown or neighborhood scale and meets at least three of the following requirements in paragraphs (1) to (4), inclusive:
(1)No less than 50 percent of the contiguous property fronting the highway consists of retail or dining commercial uses, including outdoor dining, that open directly onto sidewalks adjacent to the highway. (2)Parking, including parallel, diagonal, or perpendicular spaces located alongside the highway. (3)Traffic control signals or stop signs regulating traffic flow on the highway, located at intervals of no more than 600 feet. (4)Marked crosswalks not controlled by a traffic control device. 31 8th Street 18th Street 35 34 31 26-35 94% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
32 18th Street 24th Street 35 39 35 31-40 88% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
33 24th Street 30th Street 30 39 35 32-41 82% 30 No change Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
34 30th Street S. City Limit 30 37 32 28-37 83% 30 No change Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
35 8th Street Plaza
Boulevard 30 28 25 20-29 85% 25 Reduce to 25 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
36 16th Street 24th Street 30 34 29 25-34 78% 30 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
37 24th Street 30th Street 25 30 27 23-32 87% 25 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(C); CA-MUTCD Section 2B.13, Option 29A.3 (residential density).
Highland Avenue
L Avenue
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
38 I-805 Division Street 35 40 35 31-40 83% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 39 Division Street Plaza
Boulevard 30 34 30 25-34 78% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
40 Plaza
Boulevard 16th Street 30 34 30 27-36 83% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
41 16th Street 18th Street 25 30 26 22-31 79% 25 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 42 18th Street Prospect Street 35 34 29 26-35 75% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
43 Prospect Street Sweetwater
Road 25 30 27 23-32 79% 25 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 44 N. City Limit 4th Street 35 36 32 27-36 84% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B (safety of bicyclists and pedestrians, vulnerable pedestrian groups - community park).
45 4th Street 8th Street 35 39 34 31-40 77% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
46 8th Street 20th Street 35 37 33 29-38 87% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
47 20th Street 24th Street 35 40 34 30-39 74% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(B); CA-MUTCD Section 2B.13, Option 29A.2 (residential density); CA-MUTCD Section 2B.13, Option 16B (pace).
48 Division Street 4th Street 35 35 30 26-35 76% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(B); CA-MUTCD Section 2B.13, Option 29A.2 (residential density). 49 4th Street 8th Street 30 35 32 28-37 88% 30 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(B); CA-MUTCD Section 2B.13, Option 29A.2 (residential density). 50 8th Street Plaza
Boulevard 30 37 33 27-36 76% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 51 Plaza
Boulevard 16th Street 30 36 32 28-37 84% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(B); CA-MUTCD Section 2B.13, Option 29A.2 (residential density).
Palm Avenue
Newell Street
Grove Street
Euclid Avenue
Harbison Avenue
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
52 Sweetwater
Road
Bonita Mesa
Road 35 44 40 34-43 71% 35 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
53 Valley Road Sweetwater
Road 40 47 42 39-48 85% 40 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
54 National City
Boulevard D Avenue 30 35 28 27-36 64% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate); CVC 627 (c)(1)(A); CA-MUTCD Section 2B.13, Option 29A.1 (residential density).
55 D Avenue Highland
Avenue 30 32 29 25-34 94% 25 Reduce to 25 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(A); CA-MUTCD Section 2B.13, Option 29A.1 (residential density). 56 Highland
Avenue Palm Avenue 35 43 38 35-44 79% 35 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
57 Palm Avenue Euclid Avenue 35 40 36 32-41 85% 35 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - schools (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
58 Euclid Avenue Harbison
Avenue 40 41 37 32-41 84% 35 Reduce to 35 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(C); CA-MUTCD Section 2B.13, Option 29A.3 (residential density). 59 I-5 National City
Boulevard 30 35 30 27-36 86% 30 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
Plaza Bonita Road
Plaza Bonita Center Way
Division Street
Main Street
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
60 National City
Boulevard D Avenue 30 35 31 27-36 88% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate); CVC 627 (c)(1)(B); CA-MUTCD Section 2B.13, Option 29A.2 (residential density).
61 D Avenue Highland
Avenue 30 34 30 25-34 81% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
62 Highland
Avenue Palm Avenue 30 36 32 27-36 80% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(C); CA-MUTCD Section 2B.13, Option 29A.3 (residential density). 63 Palm Avenue Euclid Avenue 35 35 32 27-36 90% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups -community park, recreation center (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
64 Euclid Avenue Harbison
Avenue 30 36 32 28-37 82% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - hospital, senior housing, elementary school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
65 Harbor Drive National City
Boulevard 30 35 30 27-36 83% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - Transit Station (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
66 National City
Boulevard
Highland
Avenue 25 27 24 20-29 95% 25 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
67 Highland
Avenue Palm Avenue 35 37 33 28-37 87% 30 Reduce to 30 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - church, preschool (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
68 Palm Avenue Euclid Avenue 35 42 37 32-41 79% 35 No change Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
69 Euclid Avenue Harbison
Avenue 35 41 36 33-42 79% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - church, senior housing (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
70 Harbison
Avenue
Paradise Valley
Road/ Plaza
Boulevard
35 38 34 30-39 86% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
71 Coolidge
Avenue
National City
Boulevard 25 28 25 21-30 88% 25 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
72 National City
Boulevard
Highland
Avenue 30 35 31 26-35 73% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - elementary school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
73 Highland
Avenue Palm Avenue 35 32 28 25-34 93% 30 Reduce to 30 mph Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
74 Palm Avenue Euclid Avenue 35 37 34 30-39 91% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
75 Euclid Avenue Harbison
Avenue 35 39 36 30-39 84% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
76 Harbison
Avenue 8th Street 40 42 38 34-43 90% 40 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
4th Street
8th Street
Plaza Blvd
POSTED SPEED
LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH
PERCENTILE
SPEED (MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE
PERCENT OF
VEHICLES IN
PACE
RECOMMENDED
SPEED LIMIT (MPH)
77 8th Street Plaza Entrada 40 44 39 35-44 83% 40 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
78 Harbor Drive National City
Boulevard 30 34 29 25-34 76% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
79 Wilson Avenue National City
Boulevard 25 26 22 18-27 91% 25 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
80 National City
Boulevard
Highland
Avenue 35 33 30 25-34 85% 30 Reduce to 30 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
81 Highland
Avenue Palm Avenue 30 35 31 26-35 87% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627 (c)(1)(C); CA-MUTCD Section 2B.13, Option 29A.3 (residential density). 82 Palm Avenue Euclid Avenue 30 32 29 25-34 84% 30 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
83 Euclid Avenue Harbison
Avenue 30 34 30 26-35 87% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
84 Wilson Avenue National City
Boulevard 25 31 28 23-32 93% 25 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - elementary school, church (CVC 627(c)(2); CA- MUTCD Section 2B.13, Option 29B).
85 National City
Boulevard
Highland
Avenue 30 32 28 25-34 89% 25 Reduce to 25 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - elementary school, middle school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
86 Highland
Avenue Palm Avenue 30 34 29 25-34 78% 30 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
87 Palm Avenue Euclid Avenue 30 35 31 25-34 75% 30 No change When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - elementary school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
88 Euclid Avenue Rachael
Avenue 30 32 28 24-33 85% 25 Reduce to 25 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - church (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B).
89 Tidelands
Avenue
Cleveland
Avenue 30 35 28 23-32 66% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 90 Wilson Avenue National City
Boulevard 25 35 28 22-31 69% 25 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
91 Tidelands
Avenue I-5 30 35 31 26-35 82% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 18th Street
19th Street
22nd Street
Bay Marina Drive
Paradise Valley Road
Civic Center Drive
16th Street