San Clemente City Council
January 14, 2025

Nothing in this section shall affect perpetual License rights acquired either in a separate agreement or in a prior term of the terminated registration, f. Effect of termination. When this agreement, a registration or an Order is terminated, (i) Each affected Registered Affiliate must order Licenses for all copies of Products it has run for which it has not previously submitted an Order. Except for the options provided above in the event of termination of a Registered Affiliate's registration, any and all unpaid payments or any order of any kind, including subscription services, immediately become due and payable.
(ii) Registered Affiliate's right to Software Assurance benefits under this agreement ends for all Software Assurance for which payment has not been made in full. 10, How to renew an Order.

Microsoft will provide prior notice of expiration of any Software Assurance ordered under the agreement advising Customer of its Software Assurance renewal options. Microsoft may make a change to this program that will make it necessary for Customer to enter into a new agreement to renew Software Assurance.

To maintain Software Assurance coverage for any copies previously ordered under this agreement, Registered Affiliate must submit an Order for another term of Software Assurance for those Licenses prior to or on the expiration of the previous term.

Consequences of non-renewal. If Registered Affiliate elects not to place another Order for Software Assurance and it otherwise allows Software Assurance for any copies of any Products licensed to lapse, then the Registered Affiliate will not be permitted to order Software Assurance for those copies later without first acquiring L&SA.

Renewing Software Assurance. If Registered Affiliate is placing an Order for Software Assurance from multiple Select programs or is consolidating multiple previous Enrollments or agreements into this agreement, please complete the multiple previous Enrollment form.

SelectPlus2012AgrGov(US )SLG(ENG)(Oc\2012) Page 8 of 16 Document X20-04874
70 11. Restrictions on use.

Registered Affiliate must not:
a. separate and use the components of a Product on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as provided in the Product Use Rights;
b. reverse engineer, decompile or disassemble any Product or Fix, except where applicable law permits it despite this limitation; or
c. distribute, sublicense, rent, lease, lend, or host any Product or Fix except as permitted by this Agreement, the Product Use Rights, or in a separate written agreement

12. Confidentiality.

To the extent permitted by applicable law, the terms and conditions of this Agreement is confidential.

Neither party will disclose such terms and conditions, or the substance of any discussions that led to them, to any third party other than Affiliates or agents, or to designated or prospective resellers who: (1) have a need to know such Information in order to assist in carrying out this agreement; and (2) have been instructed that all such information Is to be handled in strict confidence.

For the avoidance doubt, the parties acknowledge that this Confidentiality provision recognizes that when there is a business need to do so, Microsoft and Customer may need to share/exchange their respective Confidential Information with each other to develop a more meaningful business relationship. This section provides Microsoft and Customer with a well-balanced, commercially reasonable and comprehensive set of confidentiality terms that enable both parties to share/exchange a wide range of Confidential Information with each other knowing with confidence that significant confidentiality protections are in place. The confidentiality terms denoted below do not govern Microsoft's handling of Customer Data. In all instances under this Agreement, Microsoft's handling of Customer Data shall be governed as described under various other provisions of this Agreement and by Microsoft's data security policy. a. What Is included. "Confidential Information" is non-public information, know-how and Trade Secrets in any form that are designated as "confidential" or a reasonable person knows or reasonably should understand to be confidential. It includes non.public information regarding either party's products or customers, marketing and promotions, or the negotiated terms of Microsoft agreements.
b. What is not included. The following types of information, however marked, are not Confidential Information. Information that:
(i) is, or becomes, publicly available without a breach of this agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential:
(Iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential;
(iv) is independently developed; or
(v) is a comment or suggestion one party volunteers about the other's business, products or services.
c. Treatment of Confidential Information.
(i) In general. Subject to the other terms of this agreement, each party agrees:
1) it will not disclose the other's Confidential Information to third parties; and 2) it will use and disclose the other's Confidential Information only for purposes of the parties' business relationship with each other.

SeleclPlus2012AgrGov(US )SLG(ENG )(Oct2012) Page 9 of 16 Documen t X20-04874
71 (ii) Security precautions. Subject to the other terms of this agreement, each party agrees:
1) to take reasonable steps to protect the other's Confidential Information -- these steps must be at least as protective as those the party takes to protect its own Confidential Information;
2) to notify the other promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and
3) to cooperate with the other to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
(iii) Sharing Confidential Information with Affiliates and representatives. 1) A "Representative'' is an employee, contractor, advisor, or consultant of one of the parties or of one of the parties' Affiliates.
2) Each party may disclose the other's confidential information to its Representatives (who may then disclose that Confidential Information to other of that party's Representatives) only if those Representatives have a need to know about it for purposes of the parties' business relationship with each other. Before doing so, each party must:

A. ensure that Affiliates and Representatives are required to protect the Confidential Information on terms consistent with this agreement; and B. accept responsibility for each Representative's use of Confidential Information. 3) Neither party is required to restrict work assignments of Representatives who have had access to Confidential Information. Neither party can control the incoming information the other will disclose to it in the course of worl<ing together, or what that party's Representatives will remember, even without notes or other aids. Each party agrees that use of information in Representatives' unaided memories in the development or deployment of the parties' respective products or services does not create liability under this agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
(iv) Disclosing Confidential Information if required to by law. Each party may disclose the other's Confidential Information If required to comply with a court order or other government demand that has the force of law. Before doing so. each party must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order. d. Length of Confidential Information obligations. Except as permitted above, neither party will use or disclose the other's Confidential Information for five years after it is received. The five-year time period does not apply if applicable law requires a longer period or the Product Use Rights provide a more specific requirement.

13. Warranties.
a. Limited warranty. Microsoft warrants that:
(i) Online Services will perform in accordance with the applicable Service Level Agreement; (ii) Products other than Onl ine Services will perform substantially as described in the applicable Microsoft user documentation; and
b. Limited warranty term. The limited warranty for;
(i) Online Services is for the duration of Customer's use of the Online Service, subject to the notice requirements in the applicable Service Level Agreement; SelectPlus201 2AgrGov(US)SLG(ENG )(Oct2012) Page 10 of 16 Document X20-04874
72 (ii) Products other than Online Services is one year from the date Customer first uses the Product; and
c. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(I) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty; (ii) the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement or the Product Use Rights, or resulting from events beyond Microsoft's reasonable control;
(Iii) the limited warranty does not apply to components of Products that Customer is permitted to redistribute;
(iv) the limited warranty does not apply to free, trial, pre-release, or beta products; and (v) the limited warranty does not apply to problems caused by the failure to meet minimum system requirements.
d. Remedies for breach of limited warranty. If Microsoft falls to meet any of the above limited warranties and Customer notifies Microsoft within the warranty term, then Microsoft will:
(i) for Online Services, provide the remedies identified in the Service Level Agreement for the affected Online Service:
(ii) for Products other than Online Services, at its option either ( 1) return the price paid or (2) repair or replace the Product; and
These are Customer's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law. e. DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY,

MICROSOFT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. MICROSOFT DISCLAIMS ANY IMPLIED REPRESENTATIONS,

WARRANTIES, OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, OR NONINFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.

14. Defense of infringement, misappropriation, and third party claims. a. Microsoft's agreement to protect. Microsoft will defend Enrolled Affiliate against any claims made by an unaffiliated third party that any Product or Fix that is made available by Microsoft for a fee infringes that party's patent, copyright, or trademark or makes unlawful use of its Trade Secret. Microsoft will also pay the amount of any resulting adverse final judgment (or settlement to which Microsoft consents). This section provides Enrolled Affiliate's exclusive remedy for these claims.
b. Limitations on defense obligation. Microsoft's obligations will not apply to the extent that the claim or award is based on:
{i) Customer Data, non-Microsoft software, modifications Enrolled Affiliate makes to, or any specifications or materials Enrolled Affiliate provides or makes available for, a Product or Fix. ;
{ii) Enrolled Affiliate's combination of the Product or Fix with a non-Microsoft product, data or business process; or damages based on the use of a non"Microsoft product, data or business process; ;
(iii) Enrolled Affiliate's use of either Microsoft Trademarks or the use or redistribution of a Product or Fix in violation of this agreement or any agreement incorporating Its terms or; SelecIPlus201 2AgrGov(US)SLG(ENG)(Ocl201 2) Page 11 of 16 Document X20•04874
73 (iv) Enrolled Affiliate's use of a Product or Fix after Microsoft identifies Enrolled Affiliate to discontinue that use due to a third party claim .

To the extent permitted by applicable law, Enrolled Affiliate will be responsible Microsoft for any costs or damages that result from any of the above actions. c. Enrolled Affiliate's agreement to protect. To the extent permitted by applicable law, Enrolled Affiliate will defend Microsoft and its Affiliates against any claims made by an unaffiliated third party that:
(I) any Customer Data or non-Microsoft software Microsoft hosts on Customer's behalf infringes the third party's patent, copyright, or trademark or mal<es unlawful use of its Trade Secret;or
(ii) Arises from violation of the Acceptable use Policy, which is described in the Product Use Rights.

Customer will be responsible for the amount of any resulting adverse final judgment (or settlement to which it consents). This Section provides Microsoft's exclusive remedy for these claims.
d. Rights and remedies in case of possible infringement or misappropriation. (i) Microsoft's offerings. If Microsoft reasonably believes that a Product or Fix may infringe or misappropriate a third-party's intellectual property rights, Microsoft will seel< to: (1) procure for Enrolled Affiliate the right to continue to use the Product or Fix; or (2) modify or replace it with a functional equivalent to mal<e it non-infringing and notify Enrolled Affiliate to discontinue use of the prior version, which Enrolled Affiliate must do immediately. If the foregoing options are not commercially reasonable for Microsoft, or if required by a valid judicial or government order, Microsoft may terminate Enrolled Affiliate's license or access rights in the Product or Fix. In such a case, Microsoft will provide Enrolled Affiliate with notice and refund any amounts Enrolled Afflliate has paid for those rights to the Product or Fix (or for Online Services, any amount Enrolled Affiliate has paid in advance for unused Online Services).
(ii) Customer Data or use of non-Microsoft software with Online Services. If an unaffiliated third party asserts that Customer Data or non-Microsoft software or technology used by Enrolled Affiliate the Online Services violates their intellectual property rights, Microsoft may ask Customer to remove the allegedly infringing item. If Enrolled Affiliate fails to do so within a reasonable period of time, Microsoft may suspend or terminate the Online Service to which the Customer Data or non-Microsoft software relates.
e. Obligations of protected party. Enrolled Affiliate must notify Microsoft promptly in writing of a claim subject to the Subsection titled "Microsoft's agreement to protect" and Microsoft must notify Enrolled Affiliate promptly in writing of a claim subject to the Subsection titled ''Customer's agreement to protect." The party invoking its right to protection must (1) give the other party sole control over the defense or settlement; and (2) provide reasonable assistance in defending the claim. The party providing the protection will reimburse the other party for reasonable out of pocket expenses that it incurs in providing assistance.

15. Limitation of liability.
a. Limitation on liability. To the extent permitted by applicable law, the liability of each party, its Affiliates, and its Contractors arising under this agreement is limited to direct damages up to (1) for Products other than Onl ine Services, the amount Customer paid for the Product giving rise to that liability and (2) for Online Services, the amount Customer was required to pay for the Online Service giving rise to that liability during the prior 12 months. In the case of Products provided free of charge, or code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft's liability is limited to U.S.

SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 12 ol 16 Document X20-04874
74 $5,000. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
(i) Microsoft's and Customer's obligations under the section titled "Defense of infringement, misappropriation, and third party claims";
(ii) liability for damages caused by either party's gross negligence or willful misconduct, or that of its employees or its agents, and awarded by a court of final adjudication (provided that, in jurisdictions that do not recognize a legal distinction between "gross negligence" and "negligence," "gross negligence" as used in this subsection shall mean "recklessness'');
(iii) liabilities arising out of any breach by either party of its obligations under the section entitled "Confidentiality'', except that Microsoft's liability arising out of or in relation to Customer Data shall in all cases be limited to the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months; (iv) liability for personal injury or death caused by either party's negligence, or that of its employees or agents, or for fraudulent misrepresentation; and (v) violation by either party of the other party's intellectual property rights. b. EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE

LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF

ITS AFFILIATES, OR CONTRACTORS, WILL BE LIABLE FOR ANY INDIRECT,

CONSEQUENTIAL, SPECIAL, OR INCIDENT AL DAMAGES, OR DAMAGES FOR LOST

PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS

INFORMATION ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED

OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO

EITHER PARTY'S LIABILITY TO THE OTHER FOR VIOLATION OF ITS

CONFIDENTIALITY OBLIGATIONS (EXCEPT TO THE EXTENT THAT SUCH VIOLATION

RELATES TO CUSTOMER DATA), THE OTHER PARTY'S INTELLECTUAL PROPERTY

RIGHTS, OR THE PARTIES' RESPECTIVE OBLIGATIONS IN THE SECTION TITLED "DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS." c. Affiliates and Contractors. Neither Microsoft nor Customer shall bring any action against the other's Affiliates or Contractors in respect of any matter disclaimed on their behalf in this agreement. Each party will indemnify the other in the event of any breach of this provision.

16. Verifying compliance.
a. Right to verify compliance. Customer must keep records relating to the Products it and its Affiliates use or distribute. Microsoft has the right, to the extent permitted by applicable law, to verify compliance with the license terms for the Products, at Microsoft's expense. b. Verification process and limitations. Microsoft will provide customer at least 30 days' notice of its intent to verify compliance. Microsoft will engage an independent auditor, which will be subject to a confidentiality obligation. Verification will take place during normal business hours and in a manner that does not interfere unreasonably with Customer's operations. Customer must promptly provide the independent auditor with any information it reasonably requests in furtherance of the verification. including access to systems running the Products and evidence of licenses for Products Customer hosts, sublicenses, or distributes to third parties. As an alternative, Microsoft may require Customer to complete Microsoft's self-audit process relating to the Products Customer and any of its Affiliates use or distribute. Such information will be used solely for purposes of determining compliance. c. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, Customer must within 30 days order sufficient licenses to cover its use. If there is no SeleclPlus2012AgrGov(US)SLG( NG)(Oct2012) Page 13 of 16 Document X20-04874
75 unlicensed use, Microsoft will not undertake another verification of the same Customer for at least one year. By exercising the rights and procedures described above, Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.

17. Non-Microsoft Software or Technology.
a. Registered Affiliate is solely responsible for any non-Microsoft software or technology that it installs or uses with the Products or Fixes. Microsoft is not a party to and is not bound by any terms governing Enrolls use of non-Microsoft software or technology. Without limiting the foregoing, non-Microsoft software or scripts linl<ed to or referenced from any Product website, are licensed to Registered Affiliate under the open source licenses used by the third parties that own such code, not by Microsoft.
b. If Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fixes, it directs and controls the installation in and use of such software or technology in the Products or Fixes, through its actions (e.g., through Registered Affiliate's use of application programming interfaces and other technical means that are part of the Online Services). Microsoft will not run or make any copies of such non-Microsoft software or technology outside of its relationship with Registered Affiliate. c. If Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fix, it may not do so in any way that would subject Microsoft's intellectual property or technology to obligations beyond those included in the agreement.

18. Miscellaneous.
a. Notices to Microsoft. Notices, authorizations, and requests in connection with this agreement must be sent by regular or overnight mail, express courier, or fax to the addresses and numbers listed In this agreement. Notices will be treated as delivered on the date shown th t • t th f confirmation of delivery. I
Copies should be sent to:

Microsoft Corporation
Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA
Via Facsimile:(425} 936-7329
b. Assignment. Either party may assign this agreement to an Affiliate only. Assignment will not relieve the assigning party of its obligations under the assigned agreement. If either party assigns this agreement, it must notify the other party of the assignment in writing. c. Subcontractors. Microsoft may use contractors to perform Services and support Online Services. Microsoft will be responsible for their performance subject to the terms of this agreement.
d. Severability. If a court holds any provision of this agreement to be Illegal, invalid or unenforceable, the rest of the document will remain in effect and this agreement will be amended to give effect to the eliminated provision to the maximum extent possible. e. Waiver. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party, SelectPlus2012AgrGov(US )SLG(E NG )(Oct201 2) Page 14 of 16 Document X20-04874
76 f. Applicable law; dispute resolution. The terms of this agreement will be governed by the laws of Registered Affiliate's state, without giving effect to its conflict of laws. Disputes relating to this agreement will be subject to applicable dispute resolution laws of Registered Affiliate's state.
g. This agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non-Microsoft software.
h. Entire agreement. Tl1is agreement, the Product List, all registrations under this agreement, and the Product Use Rights constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications. In the case of a conflict between any of these documents that is not resolved expressly in the documents, their terms will control in the following order: (1) these terms and conditions and the accompanying signature form; (2) the Product List; (3) the Product Use Rights; (4) all registrations under this agreement; and (5) all Orders submitted under this agreement. The terms of any purchase order or any general terms and conditions Customer maintains do not apply. i. Survival. Provisions regarding ownership and License rights, fees, Product use rights, restrictions on use, evidence of perpetual Licenses, transfer of Licenses, warranties, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, open source license restrictions, obligations on termination or expiration and the other provisions in this section entitled "Miscellaneous" will survive termination or expiration of this agreement and of any agreement in which they are incorporated. j. No transfer of ownership. Microsoft does not transfer any ownership rights in any licensed Product. Microsoft reserves all rights not specifically granted. The Products are protected by copyright and other intellectual property rights laws and international treaties. k. Free Products. It is Microsoft's intent that the terms of this agreement and the Product Use Rights be in compliance with all applicable federal law and regulations. Any free Product provided to Registered Affiliate is for the sole use and benefit of the Registered Affiliate, and is not provided for use by or personal benefit of any specific government employee.

I. Amending the agreement. This agreement (except the Product List and the Product Use Rights) can be changed only by an amendment signed by both parties. m. Resellers and other third parties cannot bind Microsoft. Resellers and other third parties do not have authority to bind or impose any obligation or liability on Microsoft. n. Privacy and Security. Microsoft and Enrolled Affiliate will each comply with all applicable privacy and data protection laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws applicable to Enrolled Affiliate or Enrolled Affiliate's industry that are not also generally applicable to information technology services providers. Enrolled Affiliate consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. Enrolled Affiliate may choose to provide personal Information to Microsoft on behalf of third parties (including Enrolled Affiliate's contacts, resellers, distributors, administrators, and employees) as part of this agreement. Enrolled Affiliate will obtain all required consents from third parties under applicable privacy and data protection law before providing personal information to Microsoft.

The personal information Enrolled Affiliate provides in connection with this agreement will be processed according to the privacy statement available at hltps://www.rnicrosoft.com/licensing/servicecenl r (see footer), except that Product-specific privacy statements are in the Product use rights. Personal data collected through Products or Services may be transferred, stored and processed in the United States or any other country in which Microsoft or its service providers maintain facilities. By using the Products or Services, Customer consents to the foregoing. Microsoft abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce SelectPlus201 2AgrGov(US )SLG(ENG )(Oct2012) Page 15 of 16 Document X20-04874
77 regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland.

For Online Services, additional privacy and security details are In the Product use rights. o. Natural disasters. In the event of a "natural disaster", Microsoft may provide additional assistance or rights by posting on http://www.mlcrosoft.com at such time. p. Copyright violation. Except as set forth In section above entitled "Transferring and reassigning Licenses", the Registered Affiliate agrees to pay for, and comply with the terms of this agreement and the Product Use Rights, for the Products it uses. Except to the extent Registered Affiliate is licensed under this agreement, it will be responsible for its breach of this contract and violation of Microsoft's copyright in the Products, including payment of License fees specified In this agreement for unlicensed use, q. U.S. export jurisdiction. Products and Fixes are subject to U.S. export jurisdiction.

Customer will comply with all U.S. Export Administration Regulations and International Traffic In Arms Regulation requirements as well as all end-user, end-use, and destination restrictions issued by the U.S. and other governments applicable to this agreement. For additional information, see http://www.micro oft.com/exporting.

SeleclPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 16 of 16 Document X20-04874
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING

CITY OF SAN CLEMENTE
Meeting Date: January 14, 2025 Agenda Item: 11M.

Submitted By: Finance and Administrative Services
Prepared By: Brian Brower, Administrative Services Director Subject:
..titl e
CONSIDERATION OF RESOLUTION NO. 25-12 DECLARING A SOLE SOURCE EXEMPTION

TO THE FORMAL SOLICITATION PROCESS, AWARDING AND AUTHORIZING EXECUTION

OF AN AGREEMENT FOR TYLER EDEN SOFTWARE MAINTENANCE AND SUPPORT OVER A TWO ..body-YEAR TERM
Fiscal Impact:

The Year-One cost of $68,799.45 and estimated Year-Two cost of $72,240 are within the Fiscal Year 2024-25 and 2025-26 Adopted Budget in the Information Technology Fund, account number 063-241-43456-000-00000.

Summary:

As one of the City’s critical enterprise software systems, the City utilizes the Tyler Technologies ‘Eden’ Enterprise Resource Planning (ERP) system for comprehensive financial and human resources management.

As part of its information technology practices, the City maintains ongoing agreements for software licensing, maintenance, and technical support for software systems that are critical to City operations. These agreements enable continued use of the software, provide access to updates for functionality and security, and ensure technical support in the event of system instability or failure. Expenditures for software maintenance agreements are funded in the Information Technology Fund through the annual budget process.

Resolution No. 25-12 would approve and authorize payment for ongoing maintenance and support of the Tyler ‘Eden’ software over a two-year period. The total amount for the current year renewal for Eden is $68,799.45. The estimated cost for the following year is shown in the table below, based on a maximum annual increase of 5%. Actual expenditures shall not exceed the amount included in the adopted annual budget.

Fiscal Year Estimated Cost
2024-25 $68,799.45
2025-26 $72,239.42 (estimate)
Section XI.A.1.7 of City Policy 201-2-1 permits the purchase of goods and services from solesource providers where a single supplier is the sole provider of a product or service such that there is not an acceptable substitute. In this case, Tyler Technologies, Inc. is the sole firm that provides software maintenance and technical support for the Eden system, which is proprietary. 1 Meeting Date: January 14, 2025 Agenda Item: 11M.

CITY OF SAN CLEMENTE
Background:

The Eden ERP system has been in use by City staff for over 20 years, supporting various functions, including budgeting, general ledger, accounts payable, accounts receivable, payroll, project accounting, human resource management, and utility billing. The original Software License and Use Agreement that has governed the Eden ERP system services during this period is included as Attachment 1.

Council Options:
 Adopt Resolution No. 25-12, authorizing an exemption to the formal solicitation process, awarding an agreement to Tyler Technologies, Inc. for maintenance and support of the Eden ERP System and authorizing the City Manager to execute the agreement in an amount not to exceed $141,040 over a two-year term.
 Modify and adopt Resolution No. 25-12.
 Continue the item with direction to provide additional information.  Do not adopt Resolution No. 25-12.

Environmental Review/Analysis:

Not a “project” under the California Environmental Quality Act.

Recommended Actions:

Staff Recommendation ..recommendation
Adopt Resolution No. 25-12, which would:

1. Declare a sole source exemption to the formal solicitation process under Section XI.A.1.7 of City Policy 201-2-1 for the Eden Enterprise Resource Planning (ERP) system;

2. Award an agreement to Tyler Technologies, Inc. for ongoing maintenance and support of the Eden ERP system for two years effective January 1, 2025; and

3. Authorize the City Manager to execute an agreement with Tyler Technologies, Inc. in an amount not to exceed $141,040 over a two-year period.
..end
Attachment:

1. Resolution No. 25-12

2. Eden Software License and Use Agreement
Notification:

None.
2 Attachment 1
4860-5047-5367 v1
RESOLUTION NO. 25-12

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, DECLARING A SOLE

SOURCE EXEMPTION TO THE FORMAL SOLICITATION

PROCESS, AWARDING AN AGREEMENT TO TYLER
TECHNOLOGIES, INC. FOR EDEN SOFTWARE

MAINTENANCE AND SUPPORT SERVICES AND

AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT IN AN AMOUNT NOT TO EXCEED $141,040

OVER A TWO-YEAR TERM
WHEREAS, as part of its information technology practices, the City maintains ongoing agreements for software licensing, maintenance, and technical support for software systems that are critical to City operations; and WHEREAS, as one of the City’s critical software systems, the City utilizes the Tyler Technologies ‘Eden’ Enterprise Resource Planning (ERP) system for comprehensive financial and human resources management; and
WHEREAS, the Eden ERP system has been in use by City staff for over 20 years, supporting various functions, including budgeting, general ledger, accounts payable, accounts receivable, payroll, project accounting, human resource management and utility billing and there is no acceptable substitute for software maintenance and support over the next two years for that system, which is proprietary; and WHEREAS, Section XI.A.1.7 of City Policy 201-2-1 identifies an exemption to the formal solicitation process when a single supplier is the sole provider of a product or service such that there is not an acceptable substitute; and WHEREAS, Tyler Technologies, Inc. is the sole firm that provides software maintenance and technical support for the Eden system, its pricing is fair and reasonable and it is in the City’s best interest to continue these services.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby find, determine and resolve as follows:

SECTION 1. That the above recitations are true and correct and incorporated fully herein.

SECTION 2. That the procurement of the Eden ERP system is hereby declared exempt from the City’s formal solicitation process under Section XI.A.1.7 of City Policy 201-2-1.

SECTION 3. That an agreement is hereby awarded to Tyler Technologies, Inc. for ongoing maintenance and support of the Eden ERP system for a period of two years 3 Resolution No. 25-12 Page 2
4860-5047-5367 v1
commencing January 1, 2025.

SECTION 4. That the City Manager is authorized and directed to execute an agreement with Tyler Technologies, Inc. for ongoing maintenance and support of the Eden ERP system in an amount not to exceed $141,040 over a two-year period.

SECTION 5. That City staff is authorized and directed to execute such other documents and take such other actions as are necessary and proper to accomplish the purposes of this resolution.

SECTION 6. 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 _____ day of January, 2025.
_______________________
Mayor of the City of
San Clemente, California
ATTEST:
__________________________
CITY CLERK of the City of
San Clemente, California
4 Resolution No. 25-12 Page 3
4860-5047-5367 v1

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 25-12 was adopted at a regular meeting of the City Council of the City of San Clemente held on _______ day of January 2025, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________.
_______________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
___________________________
Elizabeth A. Mitchell, City Attorney
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Attachment 2
6 7
rmal Working Hours." The hours between 8AM and 5PM PST (Pacific Standard Time) or PDT (Pacific aylight Tiine), whichever is applicable, on the days Monday through Friday, excluding regularly scheduled holidays of CONTRACTOR

1.10 "Releases." New versions of the Licensed Program, which new versions may include both Error Corrections and Enhancements.

1.11 "Support Agreement Term." A calendar year, commencing on July l and ending on June 30, during which certain support and services are provided subject to the tenns and conditions set forth in Section 9, Software Support.

SECTION 2 - GRANT OF LICENSE

2.1 Scope of License. Subject to compliance by CITY with the terms hereof, CONfRACTOR hereby grants to CITY, in perpetuity unless terminated as provided herein, a personal, non-exclusive, nontransferable license (without the right of sublicense ), to:
a. Install, use, and execute the Licensed Program on computers owned or leased and used by CITY at its facilities at 100 Avenida Presidio, San Clemente, California 92672 and is licensed for use on a HP Net.server LX 6/200, single host system for up to 32 concwrent users, for the sole and express purpose of supporting the internal business activities of CITY; and b. Use the Licensed Documentation only in conjunction with installation and use of the Licensed Program.

2.2 Delivery of Materials. CONTRACTOR shall deliver one copy of the Licensed Program and Licensed Documentation to CITY within a reasonable time following final execution of this Agreement.

2.3 Necessity for third party Software. CITY acknowledges that in order to be executed, the Licensed Program requires certain third-party software, as specified by the CONTRACTOR, the acquisition of which shall be the sole responsibility of CITY to obtain and maintain in its most cunent release. CITY agrees that prior to use of the Llcensed Program in any manner, CITY will obtain necessary licenses from the vendors of such third-party software.

2.4 Limited Support of Licensed Program. CONTRACTOR sball furnish to CITY such Maintenance Modifications as may be developed by CONTRACTOR generally for CITY s use of the Licensed Program

2.5 Assignment of Rights in CITY Maintenance and Enhancement Modifications. All right, title, and interest in all Maintenance and Enhancement Modifications developed by CITY during the tenn hereof remains with CONTRACTOR CITY agrees that such modifications shall be used by CITY, and will not be distributed or otherwise made available to any third party other than CONTRACTOR

2.6 Availability of CONTRACTOR Enhancements. CONTRACTOR agrees to offer to CITY a license to Enhancements that CONTRACTOR develops and offers generally to CITY s use of the Licensed Program at its announced license fees for such Enhancements.

2. 7 CITY Notification and Delivery of Materials. CITY shall notify and deliver to CONTRACTOR one copy of any Maintenance and Enhancement Modifications developed by CITY within a reasonable period after development.

2.8 Hiring of Wegal Aliens. CONTRACTOR shall not hire or employ any person to perform work within CITY or allow any person to perfonn work required 1m.der this Agreement unless such person is a United States citizen or is properly documented and legally entitled to be employed within the United States.

2.9 Changes In Work. If Contractor estimates that any proposed change within the general scope of services set forth in this Agreement causes an increase or decrease in the cost and/or the time required for perfonnance of this ...
8 . ,. .. ·
Agreement, CONTRACTOR shall so notify CITY of that fact in advance of commencing performance of such work. An agreed upon change will be reduced to writing, signed by the parties hereto, and will modify this Agreement accordingly.

2.10 Additional Work. CITY may request CONTRACTOR to perform additional services not covered by the specific scope of services set forth in this Agreement, and CONTRACTOR shall perform such extra services and will be paid for such extra services when they are reduced to writing, mutually agreed to, signed by both parties hereto, and made a part of this agreement. CITY shall not be liable for payment of any extra services not shall CONTRACTOR be obligated to perform any extra services except upon such written amendment.

2.11 Independent Contractor. CONTRACTOR is an independent contractor and not an employee of the CITY.

Neither the CITY nor any of its employees shall have any control over the conduct of the CONTRACTOR or any of CONTRACTOR's employees, except as herein set forth, and CONTRACTOR expressly warrants not to, at any time or in any manner, represent that CONTRACTOR, or any of CONTRACTOR's agents, servants or employees, are in any manner agents, servants or employees of the CITY, it being distinctly understood that CONTRACTOR is and shall at all times remain as to the CITY a wholly independent contractor and that CONTRACTOR's obligations to the CITY are solely such as are prohibited by this Agreement.

SECTION 3 ~ TITLE TO MATERIALS

3.1 Title to Licensed Program and Licensed Documentation. All right, title, and interest in and to the Licensed Program and Licensed Documentation, including the media on which the same are furnished to CITY, are and shall remain with CONTRACTOR CITY acknowledges that no such rights, title, or interest in or to the Licensed Program and the Licensed Documentation is granted under this Agreement, and no such assertion shall be made by CITY. CITY is granted only a limited right of use of the Licensed Program and Licensed Docmnentation as set forth herein, which right of use is not coupled with an interest and is revocable in accordance with the terms of this Agreement

3.2 Title to Enhancements and Maintenance Modifications; Restrictions on Use, Disclosure, Access, And Distribution. All right, title, and interest in and to any Enhancements and Maintenance Modifications developed by either CONTRACTOR or by CITY shall be and remain with the CONTRACTOR CITY shall treat all such Enhancements and Maintenance Modifications, whether developed by CONTRACTOR or by CITY, in accordance with the restrictions and limitations set forth herein respecting Licensed Programs and Licensed Documentation.

SECTION 4 - FEES AND PAYMENTS

4.1 License Fee. In consideration of the licenses granted hereunder, CITY shall pay CONTRACTOR a one-time license fee as well as other associated costs as fiuther defined in Exhibit A, attached hereto.

4.2 Support Fee. Software Support is subject to _the terms and conditions of Section 9, Software Support, and may be offered, at the CONTRACTOR's sole option, on a year by year basis.

4.3 Per Diem. Charges for meals and incidental expenses associated with the delivery of the Licensed Program will be charged on a per diem basis. The rate for such per diem shall be the greater of $35 per day or the maximmn meals and incidental expenses allowed for CITY's locality as specified in 41 CFR Section 301 Appendix A of the code of Federal Regulations. Partial days (1/2 day or less) will be billed to the CITY at one half the applicable rate.

4.4 Other Costs. Other costs, including but not limited to air/train/taxi fare, lodging, car rental, parking, freight costs and reproduction charges incurred by CONTRACTOR on acco1mt of this Agreement, shall be billed to the CITY.

CONTRACTOR shall have the right to charge a 5% administrative fee for all fees and charges specified in this Section.
9 •

4.5 Payment. The License fee set forth herein shall be paid by CITY according to the payment schedule set forth in Exhibit B.

SECTION 5 - PROPRIETARY PROTECTION OF MATERIALS

5.1 Acknowledgment of Proprietary Materials; Limitations on Use. CITY acknowledges that the Licensed Program and Licensed Documentation are unpublished works for purposes of federal copyright law and embody valuable confidential and secret information of CONTRACTOR, the development of which required the expenditure of considerable time and money by CONTRACTOR CITY shall treat the Licensed Programs and Licensed Docmnentation in confidence and shall not use, copy, or disclose, nor pen.nit any of its personnel to use, copy, or disclose the same for any purpose that is not specifically authorized under this Agreement.

5.2 Secure Handling. Except for copies of the Licensed Program installed and operated upon its computers as permitted hereunder, CITY shall require that the Licensed Program and Licensed Documentation be kept on CITY's premises which shall be maintained in a manner so as to reasonably preclude unauthorized persons from gaining access thereto, and CITY shall permit access only as necessary for either party's use thereof in accordance with the terms of this Agreement.

5.3 Proprietary Legends. CITY shall not pennit anyone other than CONTRACTOR to remove any proprietary or other legend or restrictive notice contained or included in any material provided by CONTRACTOR CITY may reproduce the written documentation provided by CONTRACTOR, provided that such reproductions are for the private internal use of CITY, and all such reproductions bear CONTRACTOR's copyright notices and other proprietary legends.

5.4 CITY's Obligations Respecting Access. CITY shall limit use of and access to the Licensed Program and Licensed Documentation to such personnel and agents of CITY as are directly involved in the use thereof by CITY. CITY shall prevent all CITY personnel and agents from having access to any such infonnation that is not required in the perfonnance of their duties for CITY. CITY shall, as requested by CONTRACTOR, provide CONTRACTOR with written notice of all personnel and agents of CITY who have been accorded access to the licensed Programs and Licensed Documentation in the course of their employment by CITY.

5.5 Injunctive Relief. CITY recognizes and acknowledges that any use or disclosure of the Licensed Program or Licensed Documentation by CITY in a manner inconsistent with the provision of this Agreement may cause CONTRACTOR irreparable damage for which remedies other than injmlctive relief may be inadequate, and CITY agrees that in any request to a court of competent jurisdiction by CONTRACTOR for injunctive or other equitable relief seeking to restrain such use or disclosure, CITY will not urge that such remedy is not appropriate under the circumstances.

5.6 Technical Protections. CONTRACTOR may from time to time prescribe password protection as an additional security measure for the Licensed Program, and CITY shall cooperate with CONTRACTOR in connection therewith.

5. 7 Security Audit. CONTRACTOR shall have the right to make visits to the CITY's computer facilities at CONTRACTOR' s sole expense to review security measures respecting the Licensed Program and Licensed Documentation, and if deficiencies are identified by CONTRACTOR, CITY and CONTRACTOR shall meet and agree upon additional security measures reasonably necessary to adequately ensure the security of the Licensed Program and Licensed Docmnentation, which the CITY shall implement.

5.8 Survival of Terms. The provisions of Sections 5.1 through 5.7 shall survive termination of this Agreement for any reason.
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10 ... .. ·
SECTION 6- LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY

6.1 Limited Warranty Against Infringement. CONTRACTOR warrants that the Licensed Program and Licensed Documentation as delivered to CITY do not infiinge any third-party rights in patent, copyright, or trade secret in the United States.

6.2 Limited Warranty of Conformity. CONTRACTOR warrants, for the benefit only of CITY, that for the life of the Agreement, the Licensed Program will conform in all material respects to the Licensed Documentation (except for modifications made by CITY or by CONTRACTOR at the request of CITY), but only if CITY maintains uninterrupted Software Support. CONTRACTOR assmnes no responsibility for obsolescence of the Licensed Program nor for lack of conformity occurring from CITY's failure to update the Licensed Program with distributed Enhancements, Maintenance Modifications, or Error Corrections.

6.3 Exclusive Remedy. Except as otherwise provided herein, as the exclusive remedy of CITY for any nonconfonnity or defect constituting an Error in the Licensed Program for which CONTRACTOR is responsible, CONTRACTOR shall use commercially reasonable efforts to provide Maintenance Modifications with respect to such Error.

However, CONTRACTOR shall not be obligated to correct, cure, or otherwise remedy any Error in the Licensed Program resulting from any (I) modification of the Licensed Program by CITY, or (2) failure of CITY to notify CONTRACTOR of the existence and nature of such nonconformity or defect promptly upon its discovery.

6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CONTRACTOR MAKES NO

WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE LICENSED

PROGRAM OR LICENSED DOCUMENTATION OR TO ANY OTHER MATERIALS FURNISHED OR PROVIDED TO CITY HEREUNDER. CONTRACTOR SPECIFICALLY DISCLAIMS ALL IMPLIED

WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF.

6.5 Limitation of Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM CLAIMS OF

INFRINGEMENT OF THIRD-PARTY RIGHTS IN THE UNITED ST A TES IN COPYRIGIIT, TRADE SECRET,

OR PA TENT, IN NO EVENT SHALL CONTRACTOR BE LIABLE UNDER ANY CLAIM, DEMAND, OR ACTION ARISING our OF OR RELATING TO ITS PERFORMANCE OR LACK THEREOF UNDER TI-IIS

AGREEMENT FOR ANY SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES,

WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND, OR ACTION.

6.6 CITY Indemnification. CITY shall and does hereby agree to indemnify, hold harmless, and save CONTRACTOR from liability against any claim, demand, loss or action (I) resulting from CITY' s use or modification of the Licensed Program and Licensed Docmnentation and (2) alleging that any Maintenance Modifications made by CITY infringe any third-party rights in the United States respecting copyright, trade secret, or patent. The foregoing indemnification is predicated upon CONTRACTOR (I) fully cooperating with CITY in the defense or settlement of such actions and (2) giving CITY prompt written notice of any claim, demand, or action for which indemnification is sought.

6. 7 CONTRACTOR Indemnification. CONTRACTOR shall and does hereby agree to indemnify, hold hannless, and save CITY from liability against any claim, demand, loss, or action alleging that the Licensed Program and Licensed Docwnentation or any Maintenance Modifications or Enhancements made by CONTRACTOR infringe any third-party rights in the United States respecting copyright, trade secret, or patent. The foregoing indemnification is predicated upon CITY (I) fully cooperating with CONTRACTOR in the defense or settlement of such actions and (2) giving CONTRACTOR prompt written notice of any claim, demand, or action for which indemnification is sought.

6.8 Survival of Terms. The provisions of Sections 6.1 through 6. 7 shall survive termination of this Agreement for any reason.
11 SECTION 7 - TERM AND TERMINATION

7.1 Term. This Agreement shall commence on the date and year contained herein and shall continue until tenninated in accordance with the tenns thereof.

7.2 Termination by Either Party. Either party may terminate this Agreement upon 60 days written notice to the other party if the other party commits a breach of any tenn hereof and fails to cure said breach within that 60-day period The notice shall set forth the basis of the tennination.

7.3 Actions Upon Termination. Upon temrination of this Agreement for any reason, CITY shall immediately cease use of, and retw:n forthwith to CONTRACTOR, the Licensed Program and Licensed Docwnentation, and any copies or portions thereof: including Maintenance Modifications or Enhancements. IfCITY terminates this Agreement, then CONTRACTOR shall be compensated for all services performed and costs incurred up to the date of tennin.ation for which CONTRACTOR bas not been previously compensated.

SECTION 8 - MISCELLANEOUS

8.1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless set forth in a document that purports to amend this Agreement and that is executed by both parties hereto.

8.2 No Assignment. CITY shall not sell. transfer, assign, or subcontract any right or obligation hereunder without the prior written consent of CONTRACTOR Any act in derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve CITY of its obligations under this Agreement.

8.3 Force Majeure. Excepting provisions of this Agreement relating to payment of license fees, and protection of CONTRACTOR's Proprietary Information, neither party shall be in default of the terms hereof if such action is due to a natural calamity, or similar causes beyond the control of such party.

8.4 Governing Law. 11ris Agreement shall be governed by and construed in accordance with the laws of the state of California. Venue will be deemed appropriate in Orange County, California.

8.S Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

8.6 Notice. Any notice required or pennitted to be made or given by either party mider this Agreement shall be made in writing and delivered by hand or by certified mail, postage prepaid, addressed as :first set forth above or to such other address as a party shall designate by written notice given to other patty.

8.7 Acceptance Testing. Within ten (10) business Days ofCONTRACTOR's notification to CITY that the Licensed Program or portion thereof is installed and the applicable training administered, CITY shall begin perfonnance of Acceptance Testing, the criteria and outcome of such Acceptance Testing to be mutually agreed to by both parties before any subsequent action.

8.8 Failure of Acceptance Testing, Retesting. If the parties agreed that the Licensed Program does not successfully pass Acceptance Testing, the CITY shall notify CONTRACTOR in writing ("first notice of failure") and shall specify with as much detail as possible in which respects the Licensed Program failed to pass the Acceptance Testing. CONTRACTOR shall make such necessacy corrections and modifications in the Licensed Program to establish a reasonable basis for additional Acceptance Testing within a period of thirty (30) days from the first notice of failure.
...
12 '•' .. ·
CONTRACTOR shall notify CITY when such retesting can begin and the CITY shall complete Acceptance Testingwithin a period often (10) business days from the date of notification. If the parties agree that the Licensed Program continues to fail Acceptance Testing, the CITY shall notify CONTRACTOR in writing of the CITY's intention to terminate and if the CONTRACTOR fails to remedy the defect within ( 60) days of receipt of said notification, the CITY has the right, at its option, to tenninate the Agreement by giving written notice of such tennination to the CONTRACTOR
Upon the CITY' s termination of this Agreement due to failure of acceptance testing, the CITY shall promptly return the Licensed Program, documentation, and all related materials to the CONTRACTOR; and all monies paid to CONTRACTOR for license fees shall be refunded to CITY; provided, however, that CONTRACTOR shall be compensated for all services performed and costs incurred up to the date of termination as provided herein.

8.9 Acts of Insolvency. The CITY may tenninate this Agreement by written notice to the CONTRACTOR if the CONTRACTOR becomes insolvent, makes a general assignment for the benefit of creditors, suffers or pennits the appointment of a receiver for its business or assets, becomes su~ect to any proceeding under any domestic bankruptcy or insolvency law or publicly ann01U1ces liquidation proceedings. -8.10 Insurance. CONTRACTOR shall submit certificates and endorsements to CITY indicating compliance with the following minimum insurance requirements not less than five (5) working days after the effective date of this Agreement and CONTRACTOR shall maintain such insurance in effect during the entire tenn of this Agreement. a. Worker's Compensation insurance to cover CONTRACTOR's employees as required by the California Labor Code. Before execution of this Agreement by CITY, CONTRACTOR shall file with CITY the attached signed Worker's Compensation Insurance Certification. In the event that CONTRACTOR has no employees, it shall file a certification to that effect. CONTRACTOR shall require all subcontractors similarly to provide such compensation insurance for their respective employees.

CITY and its officers, employees, and agents will not be responsible for any claims in law or equity occasioned by failure of CONTRACTOR to comply with this paragraph. b. Comprehensive General Liability, person injury and property damage liability, contractual liability, independent contractor's liability, and automobile liability insurance, with minimum combined liability limits of one million dollars ($1,000,000) per occurrence, and a maximum deductible of one thousand dollars ($ I , 000) per occurrence. Each such policy of insurance shall:

1. be issued by companies that hold a current policy holder's alphabetic and :financial size category rating of not less that A-VII, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by CITY' s Risk Manager for all coverages except surety;

2. name and list as additional insureds CITY, CITY's officers, employees, and • agents and, if the CITY's Risk Manager so requires, the City of San Clemente Redevelopment Agency. An endorsement shall accompany the insurance certificate nammg such additional insureds;

3. specify it acts as primary insurance and that no insurance held or owned by CITY (and, if applicable, the Redevelopment Agency) shall be called upon to cover a loss under said policy;

4. contain a clause substantially in the following words: "it is hereby Wlderstood and agreed that this policy may not be canceled or materially changed except upon 30 days prior written notice to CITY of such cancellation or material change as evidenced by a return receipt for a registered letter;"

5. cover the operations of CONTRACTOR pursuant to the terms of this Agreement; and

6. be written on an occurrence and not a claims made basis.
 
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13 14
Other costs, including but not limited to air/train/taxi fare, lodging, car rental, parking, freight costs and reproduction charges incurred by CONTRACTOR, will be reimbursed by CITY. CONTRACTOR shall have the right to charge a 5% administrative fee for all fees and charges specified in this Section.

The fees and charges specified in this section are exclusive of any federal, state, or local excise, sales, use, and similar taxes assessed or imposed with respect to the service and support provided hereunder. CITY shall pay any such amounts upon request of CONTRACTOR accompanied by evidence of imposition of such taxes.

9.3 CITY Responsibilities. CITY shall be responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware necessary to operate the Licensed Program and to obtain from CONTRACTOR the services called for according to CONTRACTOR's then existing policy.

9.4 Proprietary Rights. To the extent that CONTRACTOR may provide CITY with any Error Corrections or Enhancements or any other software, including any new software programs or components, or any compilations or derivative works of the Licensed Program prepared by CONTRACTOR, CITY may ( 1) install one copy of the Licensed Program, in the most current form provided by CONTRACTOR, in CITY's own facility; (2) use such Licensed Program in a manner consistent with the requirements of the Agreement, for purposes of serving CITY's internal business needs; and (3) make up to three (3) copies of the Licensed Program in machine-readable form for -' nonproductive backup purposes only. CITY may not use, copy, or modify the Licensed Program, or make any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by CONTRACTOR The Licensed Program is and shall remain the sole property of CONTRACTOR, regardless of whether CITY, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid CONTRACTOR for the use of the work product. CITY shall from time to time take any further action and execute and deliver any further instrument, including docwnents of assignment or acknowledgment, that CONTRACTOR may reasonably request in order to establish and perfect its exclusive ownership rights in such works. CITY shall not assert any right, title, or interest in such works, except for the nonexclusive right of use granted to CITY at the time of its delivery or on-site development.

9.S Disclaimer of Warranty and Limitation of Liability. EXCEYf AS EXPRESSLY SET FORTH HEREIN,

CONTRACTOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE SYSTEM OR THE SERVICES TO BE RENDERED HEREUNDE~ WHETHER EXPRESS OR IMPLIED,

INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.6 Termination of Support. Support may be terminated as follows:
a. Upon the tennination of the License Agreement; or
b. Upon expiration of the then current Suppott Agreement Tenn, provided that at least 60 days' prior written notice is given to the other party; or
c. Upon 60 days' prior written notice if the other party bas materially breached the provisions of this Agreement and has not cured such breach within such notice period.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as set forth below.

I CONTRACTOR]
By: Dennis L.

Signature:

Title: Pre~·;,.~c..o-~'i::::;---,Z~>-k._;;;J!~J~_:)-, Date: - 11 / 13/r1
! '°r'tL +'/IC K e., [CIT~YJ I
Signature: f {,
Title: M ti... JIJ r
Date: 11/19/9"/
oved~
Attorney
Ci C~erk oft e
City or San Clemente
15 Products anForum):

Financials - Budgeting, General Ledger,
Accounts Payable, Accounts Receivable,
Purchasing; rIS], {6}
Payroll/Benefits/
Position Control; r 121, { 4}
Human Resources; [31, {2}
Fixed Assets; [21, { 1}
Parcel Manager, Permits & Inspections;
flOl, {3}
Cash Receipting Interface; rt/21
Services:

Svstem Setup f3]; {I}
Enhancements - <Estimate - Exhibit D)
Consulting/Management (Estimate -
Exhibit D)
Data File Conversion Services-
(Estimate - Exhibit D)
Equipment, Third-Party Applications,
Database Software, Tools:

Database Server (Exhibit F) [21
Infonnix, tools [21; { I}
TCP.JD>, Emulation
IQ/Windows 5 users r21; {I}
IQ Data Dictionaries
Other:

Taxes
Freil!ht on Eauioment (Estimated)
Source Code Escrow
Travel, Expenses - (Estimate - Exhibit
D)
Exhibit A
$30,000.00
$30,000.00
$18,750.00
$7,500.00
$30,000.00
$500.00
$13,000.00
$5,500.00
$2,500.00
$1,500.00
$14,400.00 ($7,500.00) $36,900.00
$9,600.00 ($7,500.00) $32,100.00
$2,400.00 ($4,687.50) $16,462.50
$1,600.00 ($1,875.00) $7,225.00
$8,000.00 ($7,500.00) $30,500.00
$400.00 $900.00
$4 000.00 $3,250.00 $13,750.00
Sl,600.00 ($1,375.00 $5,725.00
$2,400.00 $2,400.00

0.00 0.00
$18,000.00 $18,000.00
$1,600.00 $33,043.00 $34,643.00
$1,600.00 $33,090.00 ($4,963.50) $29,726.50
$8,320.00 $8,320.00
$1,600.00 $4,100.00
$1,500.00

0.00 $300.00 $300.00

0.00 $16,000.00 $16,000.00
16 Exhibit B

BILLING/PAYMENT SCHEDULE
Financials - Budgeting, General Ledger,
Accounts Payable, Accounts Receivable,
Purchasing
Payroll/Benefits/
Position Control
Human Resources
Fixed Assets
Parcel Manager, Permits & lllSPeetions
Cash Receipting Interface
Utility Management System
Business Licenses
Data File Conversion Services <Estimate)
Database Server
$13,500.00 $9,000.00 $22,500.00
$13,500.00 $9,000.00 $22,500.00
$8,437.50 $5,625.00 $14,062.50
$3,375.00 $2,250.00 $5,625.00
$13,500.00 $9,000.00 $22,500.00
$500.00 $500.00
$5,850.00 $3,900.00 $9,750.00
$2,475.00 $1,650.00 $4,125.00
$18,000.00 $18,000.00
$33,043.00 $33,043.00
lnformix, tools $28,126.50 $28,126.50
TCP/IP, Emulation $8,320.00 $6,500.00
IQ/Windows $2,500.00 $2,500.00
IQ Data Dictionaries $1,500.00 $1,500.00
Freieht on Ecruioment <Estimated) $300.00 $300.00
Travel, Exoenses - (Estimate) $16,000.00 $16,000.00
Onsite Services $49,200.00 $49,200.00
- ---- --- .. --
17 Exhibit C

DATABASE SOFTWARE, TOOLS
A:f::,'.;'':.:,> .• : '' 1+liiliici/$~'!/C; ~. : •·•·.·'T , .. :\,''•·· • .. • I "iii totv/.i· .'f.l?riEe.'.'ita.:.· toiiii •....... lnfonnix OnLine WorkGroup Server 32 $295.00 $9,440.00
Jnfonnix 4GL Compiled - Development 3 $900.00 $2,700.00 Infonnix 4GL Compiled - Runtime 29 $300.00 $8,700.00
Informix RDS - Development 3 $900.00 $2,700.00
Jnformix Debuvver - Development 1 $300.00 $300.00
Eden Tools & Menus $9,250.00 $9,250.00
Subtotal Inf ormi.x, Tools $33,090.00
less 15% ($4,963.50)
Total Informi.x, Tools $28,126.50
WRQ Reflection Suite - TCP/JP, Emulation 32 $260.00 $8,320.00 "[Tirtitl~t·::}!::Ct"· _ ... , •• .. i::''}'\1'''>',°']'lft .~;:C:'::::,:,;·~:o:;,:7::i!?'.( ,.,,,,. ···• ' .. •, ' I i:f:::;~Jj;;:;li!'!/ 1•2:•::::i ·c;•~ \ · • "·.s3':«t:sqe 18 •
Estimated Services
ExhibitD

SERVICES
•
The following services and related cost items are included in this Agreement with the understanding by both parties that no in-depth research or analysis has been done by either individually or jointly relating to the actual work required to deliver such services. Consequently, the estimated costs included here cannot be relied upon by either party as an accurate cost to provide such services as further described below.

Enhancements, Consulting/Management, Travel, Expenses - Based on CONTRACTOR's perception of the enhancements, consulting/management, travel and expenses required by CITY at the time of execution of this Agreement, the estimate provided could vary depending on a fuller tmderstanding of the requirements as the project unfolds. If the nature of the requirements causes a change in excess of25% of the original estimate for any one or an aggregate of the named services, the CONTRACTOR will immediately notify the CITY and both parties will negotiate an adjusted cost to provide the product before any work may proceed.

Data File Conversion Services - It is agreed by both parties that data file conversion services are difficult to estimate and are dependent on a variety of factors including legal access to data; availability of sufficient documentation describing the data to be converted; proper definition of the desired result; expertise capable of writing suitable conversion programs or devise technical processes to convert the data into a form suitable for conversion to the new fonnat; time and schedule constraints; testing and data quality control; and others.

Because the estimate provided herein is not based on any in-depth analysis, it is not known what impact the above list of variables may have on the actual data conversion effort. Therefore, the cost of providing the conversion may vary by a wide margin such that it becomes practical to explore manual input of the data as an alternative for one or more of the modules in question.

If the nature of the requirements causes a change in excess of25% of the original estimate for the conversion of any one or an aggregate of the named application below, the CONTRACTOR will immediately notify the CITY and both patties will negotiate an adjusted cost to provide the product before any work may proceed.

Financial 70 $7,000.00
Parcel Management 70 $7,000.00
Utility Management 40 $4,000.00
19 •
Exhibit F

DATABASE SERVER
'iJ;(1i'=ti;~~~:1:;i1:111Ji;~~ifif;J\):i;:ittr,r~lt:~;:,Hfi~l1i~dlSmi#e''.·lli·HtJ:r~P';;;:;:_;:+;t·;::-.:· ••11:t •,:_:':\:~i{;i;lffi:.:~t HPDD4315B NetServer LX 6/200 SMP Ml--A 128mb (1)
HPDD4892A 32MB 60ns Parity SI.MM (4)
HPDD3543A 4 GB Hot Swap Ultra SCSJ Disk Module (4)
HPDCJ552B SureStore DAT8eU 8GB DAT Drive DDS-2 fl)
HPD.!317 JA Fast EthLnk XL PC! 1 Oil 00B-TX (1)
APCSU220NET Smart-UPS 2200 (1)
HPD2806B Fiat Sauare 15" Multi Sync Color Display(])
SCO62318 OpenServer Enterprise R5.0.2 CD (J)
SCO62345 OpenServer Development RJ.0.2 (/)
SCO62324 OvenServer 5.0 25-user License (1)
SCO62336 OpenServer 5.0 SMP License (1)
20 .. .
,,
' • - .. ,
. .

WORiffiR'S CO:MPENSA TJON INSURANCE CERTIFICATE
P.roject No. __ _
The California Labor Code requires every Contractor to whom a Contractor Agreement is awarded to sign and file with the Awarding Body the following statement:
111 am aware of, and will comply with Divisions 4 and 5 of the California Labor Code by securing, paying for, and maintaining in full force and effect for the duration of the contract complete workers compensation insurance, and shall furnish e. certificate of insurance to the City before execution ofthc Agrccmcnt. ''
Dated: __ N_o_v-e_m_b_e_r_2_5 ___ _..J 19 ..2.Z_
Eden Systems, Incorporated
Contracting Finn
By:~«:
........._p..._r.,_e...,s .... i .... ae ... o ... t......_ _____ ., ____ _ ··- ...... .

Title
5015 Tieton Drive, Yakima, WA 98908
Address
January 13, 2025
All of the Below Via the City of San Clemente City Clerk at: [email protected] City of San Clemente City Council
City of San Clemente City Manager, Andy Hall
City of San Clemente Community Development Director, Adam Ataman City of San Clemente City Attorney, Elizabeth Mitchell
Re: Agenda Item 10D - Consideration Of A Resolution To Initiate A General Plan Amendment And A Zoning Amendment To The San Clemente Municipal Code To Establish A Gateway Overlay District, Which Would Establish Gateway Specific Development Standards To Encourage Development That Supports The Economic Development And Urban Design Goals Of The General Plan; Accepting Grant Funding; And Making A Related Supplemental Appropriation To All of the Above-Referenced Addressees:

We were just informed of Agenda Item 10D (hereinafter “10D”) and are writing to you today as an emergency communication to be considered prior to, and during, the January 14, 2025, City Council meeting.

We find it fascinating that this similar issue is again designated as Agenda Item 10D. We protested Agenda Item 10D at September 17, 2024’s City Council Meeting. We can only surmise that this is simply a more clever rewrite of that item.

There are multiple issues with the current Item 10D as follows:

1. Regarding last September’s council meeting agenda Item 10D, it was obvious that it predominantly benefitted The Lodge at San Clemente, a development project by the Craig Realty Group. Now, this upcoming meeting’s current gateway overlay language cleverly disguises itself as pertaining to all gateways into San Clemente. However, anyone with knowledge of San Clemente can determine that, other than the small, defunct gas station off the Avenida Palizada exit, only the Outlets at San Clemente’s gateway land along Ave Vista Hermosa has any room for future development. Thus, one could opine that once again the Craig Realty Group is the main beneficiary of this agenda item.

2. The monetary cost of the study for the September Item 10D was approximately $55,000. Now, that cost has risen to $150,000. And, miraculously, there is a grant available to assist with these costs. Who exactly is paying this grant? Is it us, the San Clemente taxpayers?

3. We continue to believe that Steven Knobloch, who was previously an attorney for the Craig Realty Group, as well as not too long ago the legal counsel for the Outlets at San Clemente, should recuse himself from any City Council participation with respect to any development by the Craig Realty Group, current or future.

4. Once again, we believe the correct process to bring something of the magnitude of item 10D to a vote to the City Council was again submitted for approval without proper advanced public notification and transparency.

We sympathize that the Outlets’ property has to date not been the income-generator that both the City and Craig Realty Group envisioned. However, we stress that any future development which could adversely affect the neighboring homeowners be taken into more serious consideration.

Item 10D states on one page that the gateway overlay will preserve and protect existing neighborhoods, while on the next page, it casually includes, along with actual logical com- City of San Clemente City Council
City of San Clemente City Manager, Andy Hall
City of San Clemente Community Development Director, Adam Ataman City of San Clemente City Attorney, Elizabeth Mitchell
January 13, 2025

munity-beneficial improvements, the illogical additions of rooftop decks and increased height limits. To us, this is a complete disconnect. Rooftop decks will emit loud noise and light intrusions into neighboring communities at all hours of the night, and increasing height limits, undoubtedly, will block long-promised views. Countless homes were purchased at a higher cost based on the promises of protected views. Please explain to us how rooftop decks and height limit increases are meant to preserve the existing neighborhoods.

We too wish for the Outlets property to be a success, but not to the detriment of the well-being of hundreds of homeowners. All we ask is for the City to stop, once and for all, the subterfuge to sneak in a rooftop bar on top of Craig Realty Group’s previously approved four-story hotel. The Lodge at San Clemente can simply convert part of its 4th story into an enclosed entertainment venue in lieu of hotel rooms in that location. Provided the hotel remains at four stories, the footprint angle can be changed to provide for more ocean view real estate from its 4th floor, all without increasing its height.

Please, go back to the drawing board and come up with responsible, neighborhood-preserving options.

Outdoor rooftop bars, view-impeding height increases, and a plethora of outdoor noise and light intrusions do not fit the bill. Let’s get this hotel built to its long ago approved configuration and stop the nonsense of attempting to sneak in a roof-top venue.

Based on the above facts, we implore the City Council to reject Agenda Item 10D with respect to incorporating rooftop decks and height limits into its scope.

Thank you.

The Highland Light Homeowners Association and
The Marblehead Community Association
Also emailed directly to:

San Clemente City Council:

Victor Cabral - [email protected]
Mark Enmeier- [email protected]
Steve Knoblock [email protected]
Rick Loeffler - [email protected]
Zhen Wu - [email protected]
Shelley Hulsizer
Honorable Mayor and City Council
910 Calle Negocio
City of San Clemente
San Clemente, California, 92673
Re: Wildfire Preparedness
Dear Mayor Knoblock and members of the San Clemente City Council, I am writing to express my support for the proposed wildfire prevention activities you are considering at tonight’s meeting. In addition to the staff recommendations, urge you to include a provision that explicitly bans construction and maintenance activities involving equipment that could spark a fire during red flag conditions.

According to the website ClimateCheck (San Clemente, California Climate Change Risks and Hazards:

Drought, Fire / ClimateCheck), about 89% of buildings in San Clemente are at risk of wildfire, with the risk level for these buildings being very high (source). Activities involving heavy equipment such as tractors and loaders, as well as smaller tools like gas-powered vegetation trimmers and lawn mowers, pose a significant risk during red flag conditions when the combination of high winds, low humidity, and dry vegetation creates the perfect storm for fire ignition and rapid spread.

Recent events underscore the importance of this issue. The Airport Fire in Orange County serves as a sobering example. Workers using heavy equipment to move boulders inadvertently sparked a devastating fire that caused significant injuries and property losses. This tragedy highlights the very real dangers posed by such activities during high-risk conditions.

History provides us with a solemn reminder of the destructive power of wildfire. On January 21, 1976— nearly 49 years ago—our city experienced a devastating fire that burned 2,400 acres, destroyed 16 homes, and damaged 144 others. I would hate for history to repeat itself. The scars of that tragedy linger in our collective memory, and we must take every precaution to ensure that such an event is not repeated.

By enacting a restriction on high-risk activities during red flag conditions, you will be taking a proactive step to protect lives, property, and our cherished environment. This measure would not only enhance community safety but also reflect the Council’s commitment to making San Clemente a model of responsible and resilient wildfire prevention.

Thank you for your dedication to safeguarding our community. I am confident that with your leadership, we can mitigate the risks posed by wildfire and preserve San Clemente for generations to come.

Sincerely,
Shelley Hulsizer
From: Donna Vidrine
Sent: Tuesday, January 14, 2025 3:02 PM
To: Knoblock, Steve <[email protected]>; Enmeier, Mark <EnmeierM@sanclemente.org>; Cabral, Victor <[email protected]>; Loeffler, Rick <LoefflerR@sanclemente.org>; [email protected]; Hall, Andy <[email protected]>; Campagnolo, Laura <[email protected]>
Subject: Public Comments for CC meeting 1/14/25
Public comments for City Council meeting 1/14/25. please include in Public Record. thank you!
Mayor Knoblock, City Council and City leadership,
The San Clemente Homeless Collaborative meets on the second Monday of each month to advocate for the homeless residents of San Clemente to reduce homelessness and promote dignity, health and self-sufficiency. We research and support our ideas with specific details that the city council can use to take positive action.

We met yesterday to discuss an inclement weather program for San Clemente. My ask is that you work in partnership with the county, church leaders and non-profits to coordinate an inclement weather response. To provide temporary emergency services and resources to people experiencing homelessness during extreme weather in San Clemente.

We have persons in San Clemente that do not have access to housing and are exposed to the elements without a warm and dry place to sleep overnight.

Many programs such as "Comfort from the Cold" can be replicated in San Clemente quickly and emergently. Costs would be minimal. Partnership by the city include location of a site (1 room at the city owned community center?). Hours such as 8p to 7a for cold weather respite and use of public bathrooms overnight. Volunteers for overnight supervision provided by Homeless Collaborative working with San Clemente Churches, service organizations and community volunteers.

Extreme weather conditions such as low temperatures, wind and rain have significant and lifesafety impacts for those experiencing homelessness. Provide temporary emergency services and resources to people experiencing homelessness during inclement weather in San Clemente.

The San Clemente Homeless Collaborative stands ready to partner with the city to successfully start a pilot program for "Comfort from the Cold".

Donna Vidrine
San Clemente resident and co-leader of San Clemente Homeless Collaborative