SOFTWARE LICENSE AND SERVICE AGREEMENT
Yardi Systems. Inc‘, a California corporation headquartered at 430 South Fairview Avenue, Goleta. CA 931 17 ("Yardi“), and Rlchmond Houslng Authority (“Client”)
330 24th Street
Rlchmond, CA 94804
enter into this agreement including any schedules, exhibits or other attachments (this “Agreement") effective as of the Effective Date [defined in section 1 (definitions). belowl‘
RECITAL
Yardi has developed certain real property and asset management application software for use in conjunction with an as- sociated database. Client desires to license certain Yardi software pursuant to this Agreement's terms.
In consideration of their respective rights and obligations as set forth in this Agreement. the parties agree as follows:
AGREEMENT
1. Definitions.
a. “Anniversary Date" means the date that is 365 days
after the Initiation Date, and each anniversary thereafter of the date that is 365 days after the Initiation Date, during this Agreement's Term.
b. “Buslness Purposes“ means management of
Client's real property portfolio for accounting, property man- agement and related business purposes.
c. "Client Data" means the data that Client's Designat- ed Users transmit and/or enter into the database associated with the Licensed Programs in connection with their Use of the Licensed Programs pursuant to this Agreement.
d. "Deliverable" means any deliverable or intellectual
property delivered to Client as pad of Programming Services [defined in section 13 (Programming Services” or other
services provided pursuant to this Agreement
e. "Designated User" means a Client employee or
contractor designated by Client to Use the Licensed Pro- grams for Business Purposes.
f. “Effective Date" means the date of the last party
signature on this Agreement.
g. "Fees" means the fees identified in Schedule A. and
any other fees that may become due under this Agreement h‘ “Force Majeure Event" means any event beyond the
reasonable control of the party affected by such event. in- cluding without limitafion fire, storm, weather, earthquake, explosion, casualty. strike, war, riot, civil disturbance. act of God. acts or omission of any third party, any state or national law, decree or ordinance, or any executive orjudicial order, which event causes a party to delay or fail to perform under this Agreement
i. “Image Storage” means Client Data file storage on
file servers separate from the database server used lo serve Client Data.
J. "Initiation Date" means the date that ls 2 weeks after the Effective Date.
k. “Llcensed Programs" means the software programs
identified in Schedule A.
E“; Yardi
Co
l‘ "Licensed Programs Documentation" means the
user manuals and documentation for the Licensed Pro-
grams.
m. “Password" means the unique user name and
password assigned by Client to each Designated User as
more fully described in section 6 (Users and Passwords). n, “POCs” means the person(s) Client identifies to Yardi as points of contact for application suppon services and other account management purposes.
o. “Software Error" means a reproducible failure of the Licensed Programs to materially perfonn as specified in the Licensed Programs Documentation.
p. “Undlsputed Fees" means all Fees due from Client
under this Agreement which Client does not reasonably and in good faith dispute - and provide notice of such dispute in accord with section 16(f) (Notices) - within 30 days of in- velce.
q. "Use" means authorized use of the Licensed Pro-
grams and Licensed Programs Documentation by Client’s
Designated Users solely for Client's Business Purposes.
2. Llcense Grant; Restrictlons.
a. Licenses. Yardi grants to Client a non-exclusive.
non—transferable (except as expressly provided in this
Agreement), limited license for Client's Designated Users to Use the Licensed Programs and Licensed Programs Docu—
mentation (which Yardi shall provide in electronic format) for Business Purposes.
b. Restrictions. Client may only exercise the license
granted in section 2(a) (Licenses) through its Designated Users. Client may not rent, lease, sell, transfer (by subli- cense, assignment or othewvise except as expressly pro- vided by this Agreement), time share. modify. reproduce, copy. make derivative works from, distribute, publish, use to provide service bureau services. or publicly dispiay the Li- censed Programs. Client may only Use the Licensed Pro~
grams for Business Purposes. Client may not reverse engi- neer. decompile or otherwise attempt to discover the source code for the Licensed Programs. Client may not permit any person or entity to breach the restrictions in this section 2(b) (Restrictions).
Client
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3. Term and Termination.
a. Term. This Agreement will commence on the Effec-
tive Date and remain in effect until terminated in accord with this Agreement.
b. Tetm'nafion brCom/enienoe. Client may terminate this
Agreement without cause and for its convenience upon 30 calendar days prior written notice. Upon a teminalion for convenience, Client shall promptly pay any Undisputed Fees owed to Yardi as of the effective date of Client's termination.
If Client terminates this Agreement pursuant to this section 3(b) (Termination for Convenience), Client shall not be en- titled to a refund of any Fees.
c. Termlnation for Cause. Either party may terminate
this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within 7 days of written notice of a material breach, or if the breaching party cannot reasonably cure the material breach within 7 days, lhe breaching party fails to initiate cure within 7 days and fails to continuously and dili— gently work to cure the breach until the breach is cured.
Termination pursuant to this section 3(c) (Termination for Cause) shall be effective upon delivery of written notice after expiration of the applicable cure period.
d. Effect of Termination.
(i) Llcense Termination. Upon the effective date of
this Agreement’s termination or expiration, (A) the license for the Licensed Programs and Licensed Programs Documenta-
tion will terminate, (B) Client will cease Use of the Licensed Programs and Licensed Programs Documentation, and (C)
Client shall pay any Undisputed Fees to Yardi.
(ii) Return of Confldentlal Information. Upon this
Agreement's termination or expiration effective date, the parties shall comply with section 8(d) (Return of Confidential Information).
e. Survival. The parties” obligations under, and the
provisions of, sections 4 (License Fees), 8 (Confidentiality), 9 (Warranties). 10 (Damage Limitations). 12 (Indemnifica- tion), 14 (Assignment) and 16 (General Provisions) shall survive this Agreement‘s termination or expiration
4. Llcense Fees.
a. Fees. Client agrees to pay Yardi the Fees in accor-
dance with the payment terms set forth in Schedule A.
b. Fallure to Pay. Client‘s failure to timely pay any
Undisputed Fee when due is a material breach subject lo the terms of section 3(c) (Termination for Cause). Additionally.
Undisputed Fees shall accrue interest from their due date until paid at the rate of 1.5% per month or the maximum rate allowed under applicable law whichever is less.
c. Taxes. The Fees are exclusive of any tariff, duty. or tax, however designated, levied, or based including. without limitation, any taxes based on (i) this Agreement, (ii) the Licensed Programs or Deiiverables, (iii) Client‘s Use of the Licensed Programs, (iv) the Licensed Programs Documenta- tion, or (v) any maten’als or supplies furnished by Yardi per this Agreement. Client is responsible for all applicable tan‘ffs, duties or taxes (exclusive of taxes based on Yardi's net in- come) applicable to this Agreement.
d. Partial Fee Disputes. If Client reasonably and in
good faith disputes any Fees, and provides notice in accord with section 16(f) (Notices) of such dispute, Client agrees that any undisputed portion of such Fees are Undisputed Fees and Client agrees to timely pay any such Undisputed Fees.
5. lmglementation and Training.
a. Locatlon. Implementation and training may (at
Client's election) take place at a location specified by Client or via telecommunications. Yardi will bill Client for initial im- plementation/training services as indicated in Schedule A.
Client may request additional on-site implementation/training services (i.e., in addition to the on-site implementa-
lion/training services set fonh in Schedule A) at any time and Yardi will make commercially reasonable effons lo timely accommodate Client's request. Additional on-site implemen— tation/training services are subject to the panies’ mutual agreement on: (i) lhe schedule for performance of the addiv tional services, and (ii) Yardi's Fees for the additional servic- es.
b. On-Sltes. Client acknowledges that in-person im-
plementation/training service visits at a Client location re- quire a minimum visit of 8 hours per visit. Client agrees to pay ali reasonable expenses associated with on-site visits including, but not limited to. travel lo and from the site, lodg- ing, meals, etc. Client acknowledges that training services for more than 12 Client trainees require Client to pay for 1 additional Yardi trainer for each 12 Client trainees in excess of 12. Client agrees that Client must pay for any implementa- tion/training services cancelled less than 6 business days prior to their scheduled date.
c. Data Conversion. Yardi will bill Client for electronic data conversion services, if initially ordered, at the rate stated in Schedule A. Client acknowledges that data prepa- ration and post conversion data clean-up is inherent in any data conversion, and such additional efforts associated with a Client data conversion — if performed by Yardi - will be debited against Client's application support service allot- ment Absent an agreement to the contrary, Client shall oth- erwise be solely responsible for data conversion. data prepa- ration. data entry and data verification, and any posi—
conversion clean-up‘ Additional Yardi data conversion ser- vices (i.e., in addition to any initial data conversion services set fonh in Schedule A) are subject to the parties' mutual agreement on: (i) the schedule for performance of the addiv tional services, and (ii) Yardi’s Fees for the additional servic- es.
d. Testing. Client shall have 90 days commencing
upon the Effective Date (the "Testing Period") to lest the Licensed Programs. At any time during the Testing Period, Client may elect to cease Use of the Licensed Programs and cancel this Agreement, in which event Yardi will refund to Client all amounts paid by Client to Yardi pursuant lo this Agreement less reasonable amounts (determined by refer- ence to the Fees/rates indicated in Schedule A) for initial set- up, implementation, training and support of the Licensed Programs provided prior to Client's notice of cancellation pursuant to this section 5(d) (Testing).
Ey‘ Yardi {a Client
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Date of Preparation: July 29, 2009 1:43 PM
6. Users and Passwords.
a. Designated Users. Client agrees (hat its exercise of the license granted by this Agreement shall only be through its Designated Users. Client agrees that it may assign Pass- words to a fixed maximum number of Designated Users, and may have only a fixed maximum number of Properties (as
identified in Schedule A). The maximum number of Desig-
nated Users is the total aggregate number of Designated Users licensed to Use the Licensed Programs. The maxi-
mum number of Properties is the maximum number of Prop- erties that Client's Designated Users may manage and ac- count for in connection with Client's Use of the Licensed Programs. The agreed maximum Designated User and
Property numbers are set forth in Schedule A.
b‘ Designated User Changes. Yardi agrees that
Client may replace Designated Users as Client sees fit and at no additional cost provided: (i) there is no net increase in Client’s maximum number of Designated Users, and (ii) each Designated User has a unique Password.
c. Additional Deslgnated Users. Subject to: (i) at least 5 business days prior written notice from Client, (ii) Client’s execution of an amendment to this Agreement, and (iii) sub— ject to payment of additional Fees. Yardi will increase Client's licensed maximum number of Designated Users.
d. Password Assignment. Client’s application support
POC win be a Designated User, win designate the other
Designated Users. and will provide each other Designated Users with a Password. Each Password shall be personal
and unique lo the applicable Designated User, and may not be used by anyone other than such Designated User. Each Password may only be used from 1 computer at any given
lime. Client shall be responsible for maintaining Designated User Password security.
e. Client Obligations with Respect to Designated
Users. Client shall inform each Designated User of this Agreement's license terms and restrictions and shall enforce such restrictions Client agrees to notify Yardi if Client be- comes aware of any failure of a Designated User lo adhere to the license terms and restrictions in this Agreement, Client acknowledges that each time a Designated User accesses
the Licensed Programs the Designated User will be pre~
sented with a splash screen welcoming the Designated User and requesting that the Designated User enter his/her
unique Password‘
7. Aggllcation §uggort & Uggrades.
a. Application Support Service. Yardi will provide
application support and upgrades for the Licensed Programs as set forth in this section 7 (Application Support 8. Up- grades).
b. Client Contacts. Client agrees to appoint an applica— tion support POC. Client may change the application support POC upon advance written notice to Yardi‘ Yardi shall have no obligation to contact. or communicate with, anyone re~ garding application support and maintenance issues except Client’s application support POC. Client acknowiedges that it is Client's responsibility to keep Client's application support POC current, and to notify Yardi of any changes.
c‘ Yardi Contacts. During initial implementation, Yardi Yardi
shall appoint an account manager to Client’s account. After initial implementation. Yardi will either assign Client to an account manager or an application suppon team. Yardi may change the identity of individual account managers from time to time upon notice to client. Client's application suppon records relating to Client will be available to Yardi’s entire application support team at all times.
d. Application Support Services. Yardi shall provide
application support for the Licensed Programs through its account managers and technical staff to Client’s application support POC. Application support does not include on-site installation, implementation, training, or testing of the Li- censed Programs, nor does it include data conversion.
Those services, if initially ordered, are specified in Schedule A. Yardi‘s application support service team will use commer- cially reasonable efforts to address and solve Client's issues but cannot guarantee satisfaction in every case.
e. Total Hours Included. Client's application support
alloiment is specified in Schedule A. This Agreemenl's first annual period shall begin on the Effective Date and end on Client's first Anniversary Date. Subsequent annual periods will begin on each anniversary of the Initiation Date, and end on each subsequent Anniversary Date. Annual periods will not include unused application suppon lime from prior an~ nual pen‘ods. If Client needs additional application support hours at any time. Client may purchase additional hours at Yardi's then-current prevailing application support rate at the time Client needs the hours.
f. Application Support Hours. Yardi’s application
support hours are from 6:00 am to 4:00 pm (Pacific Time) Mondaythrough Fn'day (excluding holidays)‘
g. Prlorlty.
(i) Yardi shall have the n‘ght to prioritize application support requests according lo the application suppon issue's impact on Client. Yardi will prioritize application support re- quests in the following order:
Priority 1: Business halted (total inability to perform normal operation)
o Client will submit support requests by telephone to
Yardi's application support number.
a Response as rapid as reasonably feasible — gen—
erally within 2 business hours.
Priority 2: Business impacted (severe restriction of Client's Use of the Licensed Programs — a potentially critical prob- Iem)
o Client will submit suppon requests by telephone to
Yardi’s application support number.
- Prompt response subject only to delays for priority
1 issues, generally within 4 business hours.
Priority 3: Non—critical service requests (any issue that is not a Priority 1 or Priority 2 issue)
o Client will submit support request by telecommuni-
cations lo Yardi application suppon.
o Response subject to delays for priority 1 and 2 is-
sues. generally within 1 business day.
(ii) Yardi will work on Priority 1 and 2 issues with
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Date of Preparation: Ju!y 29, 2009 1:43 PM
continuous focus, and with Client’s cooperation, through resolution.
h. Software Upgrades. Yardi will periodically make
available to Client (at no additional cost to Client) updates, upgrades and current versions of the Licensed Programs
which will include corrections, enhancements, and/or im- provements. Client reserves the right to refuse updates and upgrades of the Licensed Programs; provided, however, that Yardi reserves the right to cease application support servic- es for versions of the Licensed Programs more than 2 years older than the latest version of the Licensed Programs gen- erally released to Yardi's clients‘
i. Standard Term. Application support services are
subject to this Agreement‘s terms and timely payment of all Undisputed Fees. Subject to the section 3(c) (Termination for Cause) notice and cure provisions, Yardi may suspend application support services if Client fails to timely make any Undisputed Fee payment.
j. Obsolescence. Yardi reserves the right to cease
providing application support service for Licensed Programs on the Iater of: (i) 3 years from the date on which Yardi ceases to license the Licensed Programs, or (ii) 5 years from the Effective Date. whichever is later. Yardi agrees to notify Client if and when Yardi will cease application support ser- vices in accord with this section 7(j) (Obsolescence).
8. Confidentialltx.
a. Confidential Information Definition. “Confidential
Informatlon" means all technical and non-lechnical informa- tion including: (i) Client Data, (ii) patent, copyright, trade secret, and other proprietary information, (iii), inventions, know—how, processes. or algorithms, (iv) software programs. software source documents. object code. source code, data- base dictionaries, network diagrams. UML diagrams, Li-
censed Programs Documentation, (v) development, design
details and specifications, (vi) a party’s financial information, (vii) customer lists. business forecasts, sales and marketing plans and information, (viii) the prices offered or paid per this Agreement for Yardi's products and services. (ix) SAS70 reports and any information related lo SAS70 reports, (x) this Agreement's terms. and (xi) any other information disclosed by a party. or to which a pany is exposed because of this Agreement. thal the disclosing party identifies as confidential at the time oi disclosure or which — by its nature - reasonably should be regarded as confidential.
b. Nondisclosure and Nonuse Obllgatlons. Each
party (the “Recelvlng Party") agrees that it will not use, disseminate. or in any way disclose any Confidential Infor- mation of the other party (the “Disclosing Pany"), to any third party, except that the Receiving Party may use the Disclosing Party’s Confidential Information to the extent necessary to perform its obligations under this Agreement.
The Receiving Pany agrees that it will lreat all Confidential Information with the same degree of care as the Receiving Party accords its own Confidential Information, but in no event less than reasonable care. The Receiving Pany
agrees that it shall disclose Confidential Information only to those of its employees and contractors who need to know such information, and the Receiving Party certifies that such employees and contractors have previously agreed, either as a condition to employment or in order to obtain the Confi- Yardi (QConfid
dential Information, to be bound by terms and conditions applicabb to the Receiving Party under this Agreement. The Receiving Party shall immediately give notice to the Disclos- ing Pany of any unauthorized use or disclosure of the Dis- closing Par1y’s Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized Use or disclosure of Disclosing Party's Confi- dential Information.
c, Exclusions from Nondisclosure and Nonuse Ob-
Ilgations. The Receiving Party's obligations per section B(b) (Nondisclosure and Nonuse Obligations) shall not apply to Confidential Information that the Receiving Party can docu- ment: (i) was (through no fault of the Receiving Party) public domain at or subsequent to the time the Disclosing Party disclosed the information to the Receiving Party, (ii)was rightfuuy in the Receiving Party's possession free of any confidentiality obligation at or subsequent to the time the Disclosing Party disclosed it to the Receiving Party. or (iii) was developed by the Receiving Party‘s employees or agents independent of, and without reference to. any infor- mation communicated to the Receiving Pany by the Disclos- ing Party. A Confidential Information disclosure by the Re- ceiving Party either (A) in response to an enforceable order by a coun or other governmental body, (B)as otherwise
required by law, or (C) necessary to establish the rights of either party under this Agreement, shall not be a breach of this Agreement by the Receiving Party or a waiver of confi- dentiality for other purposes; provided, however, the Receiv- ing Party shall provide prompt prior written notice of any such Confidential information disclosure to the Disclosing Party (to the extent allowed by applicable law) to enable the Disclosing Party to seek a protective order or otherwise pre— vent such disclosure
d. Ownership and Return of Confidential Informa-
tion and Other Materials. The Disclosing Party's Confiden- tial Information is and shall remain the Disclosing Party's property, and this Agreement does not grant or imply any license or other rights to the Disclosing Party's Confidential Information except as expressly set forth In this Agreement.
Within 5 business days after the Disclosing Party's request. the Receiving Pany will promptly either (at the Disclosing Party's election) destroy or deliver to the Disclosing Pany all Confidential Information and materials furnished to the Re- ceiving Party, and the Receiving Party agrees to provide a written officer's certification of the Receiving Pany's com- pliance with the foregoing obligation.
e. Thlrd Party Information Disclosure. The Disclosing
Party shall not communicate any information to the Receiv— ing Pany in violation of the proprietary rights of any third party.
9. Warrantles.
a. Limited Warranty. Yardi warrants that the Licensed
Programs will perform substantially as specified in the Li~ censed Programs Documentation. Yardi does nol warrant
that the Licensed Programs will meet Client's requirements and expectations.
b. Remedy for Limited Wartanty Breach. If Yardi
breaches the warranty set forth in section 9(a) (Limited War- ranty), Yardi agrees to use commercially reasonable efforts to modify the Licensed Programs so that they conform to 4 Client
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Date of Preparation: July 29, 2009 1:43 PM
that warranty. If such modification is not commercially rea- sonable, then Yardi will notify Client and Client may termi- nate this Agreement. In the event Client terminates this Agreement per this section 9(b) (Remedy for Limited War- ranty Breach), Yardi will refund to Client, on a pro-rata basis, the annual Fees paid by Client to Yardi within the year prior to the effective date of Client's termination. THE FORE- GOING REMEDY IS CLIENT’S SOLE REMEDY IN THE
EVENT OF A BREACH OF THE WARRANTY SET FORTH
IN SECTION 9(a) (Limited Warranty).
c. Warranty Disclaimer. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, AND TO THE FUL-
LEST EXTENT ALLOWED UNDER APPLICABLE LAW,
YARD! DISCLAIMS ALL EXPRESS, IMPLIED AND STA-
TUTORY WARRANTIES WITH REGARD TO THE Ll-
CENSED PROGAMS INCLUDING, BUT NOT LIMITED T0,
THE IMPLIED WARRANTIES OF MERCHANTABILITY
ANDFITNESS FOR A PARTICULAR PURPOSE.
10. Damage leitatlons.
a. Damage Waiver. REGARDLESS OF ANY OTHER
PROVISION IN THIS AGREEMENT, AND TO THE FUL-
LEST EXTENT ALLOWED BY APPLICABLE LAW, YARDI
DISCLAiMS ALL OBLIGATIONS AND LIABILITIES FOR
SPECIAL, INDIRECT, INCIDENTAL. EXEMPLARY, PUNI-
TIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS'
AND EXPERTS‘ FEES, AND COURT COSTS (EVEN IF
YARDI HAS BEEN ADVISED OF THE POSSIBILITY OF
THESE DAMAGES), ARISING FROM OR IN CONNEC-
TION WITH THIS AGREEMENT.
b. Liability Limit. IN ADDITION TO THE LIMITA-
TIONS OTHERWISE SET FORTH IN THIS AGREEMENT,
AND TO THE FULLEST EXTENT ALLOWED BY APPLI-
CABLE LAW, CLIENT AGREES THAT IN THE EVENT OF
ANY CLAIM 0R CAUSE OF ACTION BY CLIENTARISING
OUT OF OR CONNECTED WITH THIS AGREEMENT,
YARDI’S MAXIMUM LIABILITY TO CLIENT, REGARD-
LESS 0F THE AMOUNT OF LOSS CLIENT MAY HAVE
SUFFERED, SHALL NOT EXCEED THE FEES PAID BY
CLIENT TO YARDI PURSUANT TO THIS AGREEMENT
WITHIN THE YEAR PRIOR T0 THE EVENT GIVING RISE
TO THE LIABILITY.
11. Ownershlg.
a. Yardi‘s Ownershlp. Client agrees that, as between
Yardi and Client. Yardi is and shall remain the sole and ex- clusive owner of all right, title and interest in and to the Li- censed Programs. Deliverables, and Licensed Programs
Documentation, and to all intellectual property rights in the foregoing. The only rights Client obtains in the Licensed Programs and Licensed Programs Documentation are the
licenses granted to Client in this Agreement,
b‘ Cllent’s Ownership. Yardi agrees that, as between
Yardi and Client, Client is and shall remain the sole and exclusive owner of a“ right, title and interest in and to Client Data.
12. Indemnification.
a. Indemnlty. Yardi agrees lo defend, indemnify and
hold Client harmless from and against any third party claims. actions or demands alleging that Client’s Use of the Li- censed Programs, Licensed Programs Dggntation, and
Yardi
Delivetables in accordance with this Agreement‘s terms
infringes on a third party's proprietary information. trade- mark, copyright. patent rights or intellectual propeny rights, or misappropriates a third party's trade secrets,
D. Indemnity Condltions. Yardi‘s defense and indem-
nification obligation per this section 12(b) (Indemnity Condi- tions) is conditioned upon the following: (i) Client providing Yardi with prompt written notice of any claim for which in- demnification is sought; (ii) Yardi having sole control of the defense and settlement of such claim. provided, however, that Client shall have the right to have any suit or proceeding monitored by counsel of Client’s choice and at its expense; and (iii) Client's reasoname cooperation with Yardi in the defense and settlement of the claim.
c. Injunction‘ If the Licensed Programs become the
subject of a patent. trademark, copyright. or trade secret misappropriation or infringement claim, and such claim re- sults ~ or is reasonably likely lo result - in an injunction against Client’s continued Use of the Licensed Programs, Yardi will (i) replace or modify the Licensed Programs to avoid the misappropriation/infringement claim, (ii) secure Client's right to continue Use of the Licensed Programs, or (iii) if neither (i) or (ii) is commercially practicable. either pany may terminate this Agreement upon written notice to the otherparty.
13. Programming Servlces.
a. Programming Services. Yardi provides program-
ming services including, without limitation, database custo- mizations, user interface customizations, database reports, database scripts and other programming services (collecfive- Iy, “Programming Servlces").
b. Programming Servlces Terms. The Fees for Pro-
gramming Services, if initially ordered, are set forth in Sche- dule A. Client will otherwise initiate Programming Service requests by providing written notice of the desired services to Yardi, and Yardi will advise Client of Yardi's availability and schedule for performing the Programming Services.
Programming Services are subject to Client's written accep- tance of: (i) Yardi's schedule for meeting Client's Program- ming Service request, and (ii) Yardi's Fees for such Pro- gramming Services.
c. Dellverables License. Subject to Client’s full pay-
ment of all Undisputed Fees related to Programming Servic- es, Yardi grants to Client a non—exclusive, non transferable (except as expressly provided in this Agreement). limited license for Client’s Designated Users to Use the Deliverables in connection with their Use ofthe Licensed Programs.
14. Assignment.
a. Assignment leltatlon. Except for the exceptions
specified in section 14(b) (the "Permitted Exceptions").
Client shall not (either directly or indirectly) assign, sell, con— vey. pledge. or otherwise transfer this Agreement without first obtaining Yardi's express written consent, which Yardi shall not unreasonably withhold. Except for the Permitted Exceptions, any attempted assignment made without Yardi's prior express written consent is void and a material breach of this Agreement.
b‘ Permitted Exceptions. Subject to the conditions
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Date of Preparation: July 29, 2009 1:43 PM
precedent set forth in this section 14(b) (Permitted Excep- tions). Ciient may assign the Licensed Programs without Yardi‘s prior consent and upon notice: (i) to a wholly owned subsidiary, or (ii) in connection with any merger, acquisition, or reorganization involving Client. Any assignment is subject to the following conditions: (A) Client, or Client‘s successor, continuing in the same type of business that Client was con- ducting at the time of this Agreement's execution, and (B) Client or Client's successor providing lo Yardi a written ratifi- cation and assumption of this Agreement (in a form reason« ably satisfactory to Yardi) concurrent with the assignment.
15. Medlation.
a. Mediation Request; Condition Precedent. In the
event of a dispute arising out of or related to this Agreement which the parties are unable to resolve through direct nego- tiation, either party may serve upon the other at its principal place of business a request for mediation, Neither party may file an action against ihe other in any court, or initiate any other legal proceeding, unless and until the pany seeking to do so has first requested a mediation hearing and made a good faith effort to complete the mediation process provided in this Agreement
b. Mediation Process. The parties will select a neutral, independent mediator with experience in the relevant subject matter by the rules of the office of the Judicial Arbitration and Mediation Service (JAMS) closest to the mediation venue.
The parties shall conduct the mediation nol less than 10 or more than 20 days from the date the pany requesting media— tion gives notice of the request for mediation to the other party. The panies shall conduct the mediation in Santa Bar- bara. California. The parties shall equally bear the mediation costs,
c. Medlatlon Confidentiallty. The parties shall main-
tain the mediation proceedings in confidence and shall not disclose to third persons the statements made in mediation by the other parties or the mediator. The mediation confiden- tiality provisions of California Evidence Code sections 1115 — 1128 shall apply to the mediation proceedings.
d. Mediation Statements; Attendee Authority. At
least 5 days before the date of the mediation, each party shall provide the mediator and the other party with a state- ment of its position and copies of supporting documenls‘ Each pany shall send to the mediation a person who has
authority to bind the party.
e. Non-Blndlng. If a party participates in good faith in a mediation and is dissatisfied with the outcome. that party may then invoke all legal rights and remedies available lo the party at law or in equity.
16. General Prgvl§ions.
a. Independent Contractor Status. The parties agree
that they are independent contractors and nothing in this Agreement is intended to make the parties panners, agents. joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the panies into employees, agents, or representatives of the other party, No party to this Agreement shall have any ex- press or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract. agreement, or un akin with any
Date of Preparation:
third party.
b. Governing Law. This Agreement shall be governed
and determined by the laws of the United Slates and the State of California as such laws are applied lo agreements made and performed entirely within the State of California. c‘ Venue. Any action or proceeding related to or arising out of this Agreement shall be resolved only in a court of competent jurisdiction in the City of Santa Barbara, State of California (or the coud of competent jurisdiction closest to the City of Santa Barbara, CA if no court of competent juris- diction resides in the City of Santa Barbara. CA), and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
d. lnjunctive Rellef.
(i) The parties acknowledge and agree that, if
Client breaches any of its obligations under sections 2(a) (Licenses), 2(b) (Restrictions). 8 (Confidentiality) or 14 (As- signment), Yardi might incur irreparable harm and damage that might not be fully compensated with monetary damages.
Accordingly, if Client breaches any provision of sections 2(a) (Licenses). 2(b) (Restrictions), 8 (Confidentiality), or 14 (As- signment) Yardi may seek specific performance of Client's obligations under those sections and injunctive relief against any further violations of those sections,
(ii) The parties acknowledge and agree that, If
Yardi breaches any of its obligations under section 8 (Confl- dentiality) Client might incur irreparable harm and damage that might not be fully compensated with monetary damages.
Accordingly, if Yardi breaches any provision of section 8 (Confidentiality) Client may seek specific performance of Yardi's obligations under that section and injunctive relief against any further violations of that section.
e. Binding Effect. This Agreement is binding on and
inures to the benefit of the panies and their permitted as- signs, successors, and legal representatives.
f. Notlces.
(i) The parties shall deliver any notice required by
this Agreement by personal delivery, certified U.S. Mail re- turn receipt requested, or established, reputable expedited delivery carrier providing proof of delivery service. and will be deemed given upon confirmed delivery to the party to
whom it is intended at its record address. The record ad- dresses of the parties are set fonh below.
(ii) If lo Client:
Attn: Manuel Rosario
RICHMOND HOUSING AUTHORITY
330 24th Street
Richmond, CA94804
(iii) If to Yardi:
Atln: Chief Operating Officer
YARDI SYSTEMS, INC.
430 S. Fairview Ave.
Goleta, CA 93117
With a copy to:
Attn: Legal Department
Client
my 29. 2009 1:43 PM
YARDI SYSTEMS, INC.
430 S. Fairview Ave.
Goleta, CA 93117
(iv) Either party may change its record address by
giving written notice of such change to the other party. g. Waiver. The waiver of a party’s breach of this
Agreemem shall not operate or be construed as a waiver of any other or subsequent breach.
h. Severabllity. If a court or other body of competent
jurisdiction determines that any pan of this Agreement is unenforceable. the remainder of this Agreement shall never- theless remain enforceable
i. Headings. This Agreement's section headings and
captions are inserted for convenience only and are no‘ in- tended to form a material part of this Agreement.
j. Entire Agreement. This Agreement constitutes the
final, complete, and exclusive statement of the agreement between the parties pertaining to this Agreement‘s subject matter and supersedes all prior and contemporaneous un- derstandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on. any representation or warranty except those inducements, representations and warranties expressly set forth in this Agreement.
k. Non-SoliciUNon-Hire, The panies agree not to soli- RICHMOND HOUSING AUTH ‘Client”) cit (other than a general solicitation to lhe public) the em- ployment of. engage as an independent contractor, or hire. " v
any employee of the other party while such person is an By: W“, 0/employee of the other party and until such person has not been an employee of the other party for 6 months.
Print Name: 0l. Modiflcatlon. The parties may modify or amend this ' ‘ Agreement by a writing signed by both padies. mtweDucaor Title:
m‘ Force Majeure. Neither party shall be liable under
this Agreement for failure or delay in performance caused by fi/ /a Force Majeure Event. If a Force Majeure Event occurs, Date: 2 fl§the party affected shall use commercially reasonable efforts ' ' to resume the performance excused by the Force Majeure
Event.
n. Signature; Counterparts. This Agreement ls not
binding on the panies until both parties have signed n and have received a copy signed by the other party. However, both signatures need not appear on the same copy of this Agreement, so long as both signed copies have identical Agreement by electronic transmission. which shall be bind- ing upon the parties. Counterpans with original signatures Print Name:
shall be provided to the other pany within 5 days of electron— ic transmission; however, the failure to provide the original Vice Presidentcounterpart shall have no effect on this Agreement's enfor- Title:
contents. The parties may transmit signatures on this
Brad Setser
1 J
ceability or binding nature. If executed in counterparts. this '
Agreement will be as effective as if simultaneously executed, Q]‘ l D9Date:
Rev. 111808
SCHEDULEA
Fee Schedule
Yardi Pin #: 100051092
Yard} Order #: 70,720.23
Vovaqer Software License and Application Support
1)
Tralninq.
2)
3)
5)
5)
Annual License Fee: For 2.777 Units ("Unlts")‘
a) Modules Included:
PHA Propeny Management and Accounting- 2.777 Units @$10/Unit $27,770.00 Including: GL/AP, Maintenance/Work Orders. Construction 8 Gran! Man- agement, ACHforAP, Fixed Assets 8 Inventory Control, ilnspect (without Handheld), Electronic Banking
b) Unlts for Additional Modules:
Affordablez- 100 Units @$2/Unit $200.00
Including: 50059, Tax Credit, HOME, Rural Development Section 515, Waitlist ilnsped with Handheldz- 2.777 Units @$1/Unit $2,777.00
Budgeting 8. Forecastingz- 2.777 Units @$2/Unit $5,554.00 c) Additional Users:
Additional Designated Users~ 5 DUs @$250/DU $1 ,250.00
d) Annual Concesslon:
Courtesy Concession <11 OQQ.QO>
‘
Client may change the licensed Units number only in 100-Unit increments. ”The Affordable module requires a minimum of 100 Units. The ilnspecl with Handheld and Budgeting & Forecasting modules must be licensed for the entire portfolio.
Total Annual Fee’
3 Includes license Fees, updates/upgrades, up to 1 Designated User ("DUs") per 100 Units. and 27 application support hours/year. Yardi will debit all application support services (in ‘A—hour increments with a ‘/.-hour minimum) against Client's above-noted application support allotment except when the services relate to a Software Error‘ Client‘s Total Annual Fee is subject to increase on each Anniver- sary Date; such increases shan not exceed the percentage increase in the U.S. Department of Labor.
Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPLW): Los Angeles Region for the preceding year.
Additional year 1 application support hours (25 hours)
Implementation. and Other Services
Professional Services Group (PSG)- 192 hours @$175/hour, plus reasonable expenses‘ Yardi shall invoice Client any reasonable expenses incurred while providing the services. monthly in arrears and Client shall pay such invoices within 30 days of the invoice dale. The PSG project scope is attached as Schedule B.
Data Conversion (subject to Yardi data conversion guidelines) 5 Three Conversions of 1 Emphasys database for 50058 MTCS datafile, tenant. vendor, owner and waitlist information.
Programming Services
Sub-Total
Sales Tax
g Yardi Client
Conf’ ntial
Date of Preparation: July 29, 2009 1:43 PM
$26,551 .00
$3,000.00
$33.eoo.oo‘
$5,000.005
not included
$68.1 51 .00
$2,569.23
8 7)
8)
9)
10)
11)
Totat Fee MSubject to Client‘s pn'or written approval, Client agrees to participate (at no cost to Client) in Yardi’s marketing efforts.
Client acknowledges that additional DUs. Units and/or Licensed Programs (i.e., in addition to those initially set forth in this Schedule A) require additional Fees at Yardi's theh-current prevailing rate for the additional DUs or Licensed Programs at the time of Client's request.
Application hosting, database administration, and network administration associated with the Licensed Programs are Client’s responsibility.
PAYMENT TERMS: 100% payable upon execution of this Agreement.
Attached separately paginaled.
SCHEDULE B
g]? Yardi fl Client
Conf'wéntial
Date of Preparation: July 29, 2009 1:43 PM
yYARD!
City ofRichmondHousingAuthority
Implementation Services Scope ofWork
Project Objectives
City of Richmond Housing Authority (CRHA) will be moving to the Yardi Voyager suite of tools. The objectives listed below are the high level focus of the services that Yardi Services and Support team will scope and execute. The focus ofthe implementation is towards the following directives; Yardi Voyager Property and Financial Management
o Inspection Scheduling
Public Housing Management
Financial Management
Construction/Grant Management
Fixed Asset and Inventory Control
Maintenance Tracking
ACH for Accounts Payable
Electronic Banking
Reporting Analytics
00000000
Overview ofYardi Services Group Involvement
Voyager Product Functionality Set~Up — 96 hours
Voyager Core G/L, Accounting and reporting - 48 hours
Voyager Training, Pilot Testing - 48 hours
Project Management - 25 Hours
Post Implementation Support - 27 hours
Yardi Fees
Yardi Implementation Team -
$175 per hour
Offsite Project Management — $120 per hour
Post Implementation Support - $120 per hour
Project Assumptions
This Scope ofWorkis for Yardi Core G/L, Yardi Voyager Property Management, and all defined modules in product pricing sheet
Hours estimated around Project Management assume that many tasks surrounding project overhead are to be incurred by CRHAand offsite Yardi support personnel Yardi's 192 hours (24- days) of implementation time is for on and offsite involvement Yardi Assumes that CRHAwill engage with third party consultant to help supplement the project as it pertains to CRHA tasks and related project management
Yardi’s role is described as implementation and training efforts Should consulting services beyond the scope of Implementation or training be required, further costs may be incurred
No hours are currently scoped for anycustom reporting
CRHA will hold all responsibility for data validation
The implementation time frame is based on a 32 week project Post go live support will behandled bystandard Yardi account management Training sessions are scope in this document as "Train the Trainer' methodology Custom documentation is not priced or scoped in this plan Yardi travel expense costs are not included in this scope ofwork All travel expense costs are incurred by CRHA as per the Yardi travel policy City of Richmond Housing Authority
Scope of Work June 2009