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HomeMy WebLinkAboutFULL PACKET_2014-09-02HOUSING AUTHORITY MEETING AGENDA SEPTEMBER 2, 2014 CITY COUNCIL CHAMBER 22 Civic Center Plaza Santa Ana, California 5:45 p.m. (Immediately following the City Council Closed Session Meeting) Sal Tinajero Vice Chairperson - Ward 6 STina�ero &saida- ana.org Michele Martinez Authority Member- Ward XLNlartineaa .Tanta- ana.or� P. David Benavides Authority Member- Ward 4 DBenauidesL&Santa -ana.= Sonia R. Carvalho General Counsel Miguel A. Pulido Chairperson Vincent F. Sarmiento Authority Member - Ward 1 ESanmiento@santa- ana.oi Angelica Amezcua Authority Member - Ward 3 AAmeZm e,santa -anam Roman A. Reyna Authority Member - Ward 5 RRem, n „Tanta- ana.ot Authority Member telephone: 714 - 647 -6900 Agenda item inquiries: 714 - 647 -6520 Vacant Executive Director Maria D. Huizar Recording Secretary NOTE. Ifyou need special assistance to participate in this Council meeting, please contact Michael Ortiz, City ADA Program Coordinator, at (714) 647 -5624. Please call prior to the meeting date, to allow the City enough time to make reasonable arrangements For accessibility to this meeting. i [Americans with Disabilities Act, Title II, 28 CFR 35.102] Basic Housing Authority Meeting Information Five -Year Strategic Plan (2014 -2019) Detailed information at: httr): / / www.sarta-ana.ora/strateaic- Dlannina/ Vision, Mission and Guiding Principles - The City of Santa Ana is committed to achieving a shared vision for the organization and its community. The vision, mission and guiding principles (values) are the result of a thoughtful and inclusive process designed to set the City and organization on a course that meets the challenges of today and tomorrow. Vision - The dynamic center of Orange County which is acclaimed for our: -Investment in youth -Safe and healthy community Neighborhood pride -Thriving economic climate -Enriched and diverse culture -Quality government services Mission - To deliver efficient public services in partnership with our community which ensures public safety, a prosperous economic environment, opportunities for our youth, and a high quality of life for residents." Guiding Principles Collaboration -Efficiency -Equity -Excellence -Fiscal Responsibility -Innovation -Transparency Strategic Plan Goals /Objectives /Strategies: Goal 1 - Community Safety Goal 2 - Youth, Education, Recreation Goal 3 - Economic Development Goal 4 - City Financial Stability Goal 5 - Community Health, Livability, Engagement & Sustainability Goal 6 - Community Facilities & Infrastructure Goal 7 - Team Santa Ana Code of Ethics and Conduct - The people of the City of Santa Ana, at an election held on February 5, 2008, approved an amendment to the City Charter which established the Code of Ethics and Conduct for elected officials and members of appointed boards, commissions, and committees to assure public confidence. A copy of the City's Code can be found on the Clerk of the Council's webpage. The following are the core values expressed: Integrity • Honesty • Responsibility • Fairness • Accountability Respect • Efficiency Agenda Information - The agenda descriptions provide the public with a general summary of the items of business to be considered by the Authority. The Authority is not limited in any way by the "Recommended Action" and may take any action which the Authority deems to be appropriate on an agenda item. Except as otherwise provided by law, no action shall be taken on any item not listed on the agenda. Public Comments /Public Input - Pursuant to Government Code Sec. 54954.3, the public may address the Housing Authority and any other legislative body scheduled to meet on same day and time on any and all matters within the City of Santa Ana's jurisdiction. At the discretion of the Chair, at the first Public Comment portion of the meeting, all comments may be considered jointly. The public will be given the opportunity to speak on any and all matters contained on any of the Consent Calendar and Business Calendar items and /or on issues of public interest within the jurisdiction of the City. For public hearings, members of the public shall be given three (3) minutes for each duly noticed hearing (unless the matter is continued prior to taking public testimony). All requests to speak shall be submitted in writing to the Clerk of the Council at the beginning of the meeting and before Public Comments begin. Speaker forms will be available at the meeting. REQUESTS TO SPEAK SHALL NOT BE ACCEPTED AFTER THE PUBLIC COMMENT SESSION BEGINS WITHOUT PERMISSION OF THE CHAIR. When speaking, all persons addressing the Legislative Body shall follow the rules of decorum as detailed on the back of the speaker form. The presiding officer shall have the power and responsibility to enforce decorum and order of the meeting as set forth in Section 2- 104(c) of the Santa Ana Municipal Code. Consent Calendar - All matters listed under the Consent Calendar are considered to be routine by the Housing Authority and will be enacted by one motion without discussion unless a member of the Authority "pulls" an item(s) from the consent calendar for a separate vote. Senate Bill 343 - As required by Senate Bill 343, any non - confidential writings or documents provided to a majority of the Housing Authority members regarding any item on this agenda will be made available for public inspection in the Clerk of the Council Office during normal business hours. Agenda & Minutes - Staff reports and documents relating to each agenda item are on file in the Office of the Clerk of the Council and are available for public inspection during regular business hours, 8:00 a.m. — 5:00 p.m., Monday through Thursday and alternate Fridays. The Clerk's office is located in City Hall, 20 Civic Center Plaza, Room 809, Santa Ana, California, (714)647 -6520. Authority meeting agendas, staff reports, and Minutes are available the Friday before an Authority meeting at the following website address: www.santa- ana.ora Televised Meeting Schedule - All regular meetings will be televised and available for viewing on the City's cable channel. Meetings held in the Council Chamber or other designated locations which are televised live on CTV3 Time Warner Cable will be cablecast Mondays at 6:00 p.m., Tuesdays immediately following the meeting at 9:00 a.m., Wednesdays at 6:00 p.m., and Sundays at 1:00 p.m. Meetings held in locations that do not have a live cable feed will be videotaped and shown on CTV3 the day after the meeting. DVD copies of the meetings for loan will be available for public circulation at the Santa Ana Main Library the day after a meeting. HOUSING AUTHORITY AGENDA 2 SEPTEMBER 2, 2014 CITY OF SANTA ANA HOUSING AUTHORITY MEETING SEPTEMBER 2, 2014 CALL TO ORDER CHAIRPERSON PULIDO HOUSING AUTHORITY BOARD MEMBERS TINAJERO, AMEZCUA, BENAVIDES, MARTINEZ, REYNA, SARMIENTO City Manager, General Counsel, Recording Secretary PUBLIC COMMENT ON AGENDA ITEMS AND ITEMS OF PUBLIC INTEREST (Refer to page 2 "Public Input" for description) 1 Pj L- CONSENT CALENDAR RECOMMENDED ACTION. Approve staff recommendation on Consent Calendar Items: 1 through 2. REGULAR MEETING MINUTES OF AUGUST 5, 2014 RECOMMENDED ACTION. Approve Minutes. EXCUSED ABSENCES RECOMMENDED ACTION, Excuse Housing Authority Members absent. * ** END OF CONSENT CALENDAR. * ** HOUSING AUTHORITY AGENDA 3 SEPTEMBER 2, 2014 BUSINESS CALENDAR ANNUAL LICENSE RENEWAL FOR YARDI SYSTEMS, INC. Recommended action approved by the Community Redevelopment and Housing Commission on August 13, 2014, by a vote of 6:0. RF'COMMENDE.D DICTION: Authorize the Executive Director of the Housing Authority to execute an agreement for the licensing renewal and services and/or enhancements to the software with Yardi Systems, Inc. in an amount not to exceed $80,000 for a one -year term, subject to non - substantive changes approved by the Executive Director and Authority General Counsel. COMMENTS AT THIS TIME Housing Authority members may comment on non - agenda matters and ask questions of or give directions to staff. NO action may be taken on non - agenda items unless authorized by law. ADJOURNMENT HOUSING AUTHORITY AGENDA 4 SEPTEMBER 2, 2014 MINUTES OF THE REGULAR MEETING OF THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA, CALIFORNIA ATTENDANCE PUBLIC COMMENTS — None AUGUST 5, 2014 COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 7:09 P.M. AUTHORITY MEMBERS Present: MIGUEL PULIDO, Chair ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ AUTHORITY MEMBERS Absent: SAL TINAJERO, Chair Pro Tern ROMAN REYNA VINCENT F. SARMIENTO STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, Authority Counsel MARIA D. HUIZAR, Authority Secretary CONSENT CALENDAR ITEMS MOTION: Approve staff recommendation on Consent Calendar Items: I - 4. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Benavides Arnezcua, Benavides, Pulido, Martinez (4) None (0) None (0) Reyna, Sarmiento, Tinajero, (3) HOUSING AUTHORITY MINUTES 1 AUGUST 5, 2014 1 . REGULAR MEETING MINUTES OF JULY 1, 2014 {STRATEGIC PLAN NO. 5, 1) MOTION: Approve Minutes. 2. EXCUSED ABSENCES MOTION: Excuse the absence Chair Pro Tern Sal Tinajero and Authority member Roman Reyna from the August 5, 2014 Meeting. 3. QUARTERLY REPORT OF CONTRACTS ENTERED INTO BY THE EXECUTIVE DIRECTOR {STRATEGIC PLAN NO. 5} MOTION: Receive and file. 4. QUARTERLY REPORT FOR HOUSING CHOICE VOUCHER PROGRAM APRIL 2014 — JUNE 2014 {STRATEGIC PLAN NO. 5) At its regular meeting of July 16, 2014, by a vote of 6:0, the Community Redevelopment and Housing Commission recommended that the Housing Authority receive and file the Quarterly Report for Housing Choice Voucher Program: April 2014 — June 2014, MOTION: Receive and file. *** END OF CONSENT CALENDAR *** COMMENTS 5. HOUSING AUTHORITY MEMBER COMMENTS - NONE ADJOURNED 7:11 P.M. Maria Huizar, Recording Secretary HOUSING AUTHORITY MINUTES 2 AUGUST 5, 2014 SEPTEMBER 2, 2014 ANNUAL LICENSE RENEWAL FOR YARDI SYSTEMS, INC. 1, n_I -° C E COME E DIRECTOR RECOMMENDED ACTION RECORDING SECRETARY USE ONLY: ❑ As Recommended ❑ As Amended CONTINUED TO Authorize the Housing Authority Executive Director to execute an agreement for the licensing renewal and services and /or enhancements to the software with Yardi Systems, Inc. in an amount not to exceed $80,000 for a one -year term, subject to non - substantive changes approved by the Executive Director and Authority General Counsel. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION RECOMMENDATION At its regular meeting of August 13, 2014, by a vote of 6:0, the Community Redevelopment and Housing Commission recommended that the Housing Authority authorize the Housing Authority Executive Director to execute an agreement for the licensing renewal and for services or enhancements to the software with Yardi Systems, Inc. in an amount not to exceed $80,000 for a one -year term, subject to non - substantive changes approved by the Executive Director and Authority General Counsel. DISCUSSION For many years, the Housing Authority (Authority) has used specialized software in the administration of the Housing Choice Voucher program. This software is critical to the operation of the Authority and its obligation to electronically transfer data to the U.S. Department of Housing and Urban Development (HUD). The Authority approved an agreement in September 2002 with Yardi Systems, Inc. for its Housing Choice Voucher program management software. This system tracks all program information on applicants, tenants, and owners, schedules and maintains records on all Housing Quality Standards inspections, performs income and payment calculations, and creates and transmits HUD - required reports. The annual license fee includes system upgrades, software updates, all pertinent user manuals, staff training, Applicant, Owner and Annual License Renewal for Yardi Systems, Inc. September 2, 2014 Page 2 Application Portals and forty five hours of technical assistance. The one year term of the agreement begins on October 1, 2014 (Exhibit 1). There are three nationally recognized providers of voucher management programs, including Yardi, for housing authorities of a size similar to the Santa Ana Housing Authority. While all are web -based applications, the user interface, workflow, and data exchange processes to support payment creation differ. It is cost - prohibitive to change vendors and retrain staff, re -enter data, and customize new software to support the City's internal control requirements. The Housing Authority's original housing program management software was developed by Nan McKay, Inc., which in 2002 sold its program to Yardi Systems, Inc., and over the years has been customized to serve the Housing Authority's requirements. The Yardi system is recognized as an industry standard, chosen by Los Angeles County, Chicago, Portland, Sacramento, and other large public housing authorities. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability. FISCAL IMPACT Funds are available in the Housing Authority Other Contractual Services account (no. 14018760- 62300). M Scott Kutner District Manager Community Development Agency DC /SK/MZ /np Exhibit 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency /P EXIIJBITI CONSULTANT AGREEMENT BETWEEN THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA AND YARDI SYSTEMS, INC. THIS AGREEMENT, made and entered into this 1. "day of October, 2014, by and between Yardi Systems Inc., a California corporation (hereinafter "Consultant"), and the Housing Authority of the City of Santa Ana, a public body, corporate and politic (hereinafter "Authority"). RECITALS A. The Authority entered into the "Application Hosting and Software License Agreement" ("Original Agreement") with Consultant in 2009 whereby Consultant has provided certain real property and asset management application software and related services to Authority. The Original Agreement has been amended over the years to, among other things, add units and portals. The Original Agreement is attached hereto as Exhibit A. B. The Authority desires to continue to retain Consultant for the upcoming annual period under upcoming as described in) the Original Agreement due to its special skill and knowledge in providing the Housing Authority with specialized software and related services for the not to exceed L amount set forth in Section 2 (Compensation), below. C, Consultant represents that Consultant is able and willing to provide such software and services to the Authority, or to renew the Original Agreement for the upcoming annual period under (and as described in) the Original Agreement, subject to the not to exceed amount. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES The Scope of Services for Consultant shall be the software and related services provided under the Original Agreement for the upcoming annual period under (and as described in) the Original Agreement (see Exhibit A, attached hereto and incorporated herein). 2. COMPENSATION a. The Authority agrees to pay, and Consultant agrees to accept total payment pursuant to this Agreement which shall not exceed Eighty Thousand Dollars ($80,000.00) during the Term of this Agreement. In order to avoid any doubt, in the event Authority decides to renew the Original Agreement L, - - for a subsequent annual period, additional compensation will be due. b. Payment by Authority shall be made in accordance with the terms and conditions of the Original Agreement. I EXHIBIT TERM This Agreement shall commence on the date first written above and terminate oo September 30, 2O]5, unless terminated earlier io accordance with Section l2`below. 4^ INDEPENDENT CONTRACTOR Cooxokout obuD, during the entire term ofthis Apreement, be construed to bcmnindependent contractor and not ou employee o[the Authority. This Agreement ia not intended nor shall i|beconstrued to create no employer-employee relationship, u joint venture relationship, or 10 u|lnvv the Authority to urou/ioc discretion or control over the professional manner in which Consultant ycrfooua the aen/oeu vvbjcb are the subject matter ofthis &gzoeoueu(; bnv/ovuc, the services to he provided byConsultant ubnO be provided inm manner consistent with all applicable standards and regulations govoruiog such services. Consultant obol) pay all ouladux and wages, coTployor'a onoiu| security taxes, unemployment bnooruuoe and similar taxes relating to employees and shall bcresponsible for all applicable withholding taxes. 5. INSURANCE -RESERVED Due to the nature of the services provided hereunder, insurance isnot required. h, INDEMNIFICATION Each party agrees Wand shall indemnify and hold harmless the other party, its officers, agents, employees, 000nubucUm' special ouuoocl, and representatives from liability: (1) for damages, just compensation, restitution, judicial or coohahle relief arising out of third putty c\oizna for personal bodily injury, including bealdz, and ulubnx for tangible property doozage, which may arise from the direct or indirect operations of the indemnifying party or its contractors, subcontractors, agents, cozp|oyeeu, or other persons acting on their behalf, and (2) from any third party claim that damages, just compensation, ro$budnu, judicial or equitable ro|iu[ is dun by rcoomo of the teono of or effects arising from this Agreement. This imlncmziLy and hold bucozemu aggrenoucot applies to all third party claims for damages, just coozpcmoa1ino` rcstiLutioo, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the oveoio referred to in this Section or by rounoo of the terms o[ or cffec|m, arising from this Agreement. 7. CONFIDENTIALITY If Consultant receives front the Authority information which due to the nature ofsuch information is reasonably understood Lohe confidential and/or proprietary, Consultant agrees that i1shall not use or disclose such inKznuaino except iuthe performance n[ this Agreement, and further agrees (o exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. '^Coufidundu|Information" shall include all nonpublic information. CouDJnnda\ iufozzoadoo includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential iobonnuhon disclosed to either party hyany subsidiary and/or agent nf the other party iu covered hy this Agreement, The foregoing uhUAationmo[ non-use and nondi sclos Lire shall not apply to any information that (a) has been disclosed in publicly available sources; (h) is, through no filu|1o[ibo Consultant disclosed inu publicly available source; (o) is iudubifu\ possession o[ the [uuau||un| vviibuut uo obligation of confidential ity; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to in[bnnation disclosed bythe Authority. BXDIB[Tl C0NFLlCT0F INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9\ WnCE Any notice, tender, demand, delivery, or other communication pursuant io this uku| [miu writing and shall bo deemed 1ohoproperly given if delivered io person oz mailed hy first class or certified mail, postage prepaid, in the manner provided in this Section, to the following persons: To for the City ofSanta Am Community Development Agency 20 Civic Center Plaza (M-27) P.O. Box l988 Santa Ana, C& 92782-1980 And: Authority General Counsel City of Santa Ana 20 Civic Center Plaza (M-2B) PD. Box l980 Santa Ana, California Q2702 To Consultant: \azdi Systems, luo. 43OB. Fairview Ave. Goleta, C/\ 93117 Attn: COO And: YordiSyotenuu Inc. 43VO. Fairview Ave. Goleta, C/\93]l7 Attn: General Counsel A party may change its address hv giving ' notice in writing W the other party. Thereafter, any oodne' tender, demand, delivery, or other 000zcoouioutioo shall he addressed and transmitted to the new address, If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after ithas been deposited in the United States mail, duly re(yistered For purposes ofcalculating these tirne frames', weekends, federal, state, County or City holidays shall be excluded, 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the Authority and Consultant, and supersedes any and all other agreements, oral or written, between the parties. Io the event ofa conflict between the terins of this Agreement and ally attachments hereto, the tenns of this /\@Tououcnt shall prevail. This Agreement may not be modified except by written iuokucocut signed by the Authority and byan authorized representative o[Consultant, The parties agree that any terms or conditions of" any purchase order or other instrument that are inconsistent with, or in addition to, that ieroxo and conditions buzeu[ o|zu|i ootbiud or obligate Couauhuo< nor the Authority, Each party to this /\gcccrooui onkoowicdgen that no representations, ioduoezucu1a, promises oza@recnueo\s, oruUyor EXUD}{1i otherwise, have been made by any party, oc anyone acting ou behalf of any party, which are not embodied 11. ASSIGNMENT Ioouoxzob as this /\urcunzco< iu intended to secure the specialized services of Consultant, Consultant may not assign, tnaoafer, delegate, oz Subcontract any interest bcruiu without the prior written consent of the Authority and any such assignment, transfer, delegation or subcontract without the Authority's prior written consent shall hu considered null and void. I2. TERMINATION This Agreement may ht terminated 6vthe Authority upon thirty (30) days written notice of termination. In such. event, Consultant shall be entitled to receive and the Authority shall pay Consultant compensation for all set-vices performed hyConsultant prior Ln receipt of such notice nftermination, however, payment need not be made for work which falls to meet the standard of performance specified in the Rooi1a)n of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, ud}izadnu. promotion, \enoiooti000rother employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal., state and local |avvx and regulations. This Agreement and all questions relating to its validity, and onKoroeroout shall be government and construed in accordance with the laws of the B\m1e of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State ofCalifornia. Both parties further agree that Orange County, California, mbaJ} be the venue for any action or proceeding that may be brought or arise out o[ io connection with or by reason uf this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, od the ienoofthis Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision uF the services hereunder and required by the laws and re-ulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the Authority itrimedlately and in writing of her inability to oh|uio or maintain such ycznzta, Uouosey, approvals, waivers, and uxonzydoua. Said inability obnU be cause for tonninab000[ this Agreement. 16, MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its sig-nmturebueiubchwhas the power, authority and dobC1obhzdLb�rrcopucivo 'uxtucucbV�d�tonnxofd\�/\Acccu'md, and shall iodoronifv/\uUx`dty fuOy. Inu\udbffi� zcuuooa�|ocos�Vaud a1Cuo��y`o Kcou, Ooroo� i 'uduaordmuagoo to Authority in the event dha such authority orpower is not, in §.c1, held by the uigna(oryoria withdrawn, EXHIBa i IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Secretary APPROVED AS TO FORM: Sonia R. Carvalho Authority General Counsel By, Lisa E. Storck Assistant Counsel HOUSING AUTHORITY OF THE CITY OF SANTA ANA David Cavazos Acting Executive Director Yardi Systems, Inc. By: Title: TIN# 11"XIIIBIT I EX111131T A Application Hosting and Software License Agreement, {Attached Separately Ngxinwed) EXHIBITA A auched Separately Paginated APPLICATION HOSTING AND SOFTWARE LICENSE AGREEMENT Yards Systems, Inc,, a California corporation headquartered at 430 South Fairview Avenue, Goleta, CA 93117 ( 'Yardl'), and Housing Authority of the City of Santa Ana ("Client") PO Box 22030 Santa Ana, CA 92702 enter Into this agreement Including any schedules, exhibits or other attachments (this 'Agreement') effective as of The Effective Date (defined in Section I (definitions), below]. RECITAL Yardl has developed certain real property and asset management application software for use in conjunction with an as- sociated database. Client desires to license certain Yard! software via access to a designated Site [defined in section I (definitions), below) 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: 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. 'Business Purposes' means management of Client's real property portfolio for accounting, prop" 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. "Citrix Designated User" means a Designated User utilizing CInix products to access the Site, Licensed Pro- grams, and/or Client Data for administrative purposes, a, "Deliverable" means any deliverable or intellectual property delivered to Client as pail of Programming Services [defined In section 14 (Programming Services)] or other services provided pursuant to this Agreement, f. "Designated User' means a Client employee or contractor designated by Client to access the Site and Use the Licensed Programs for Business Purposes, g. 'Effective Date" means August 1, 2009, h, 'Fees' means the fees identified in Schedule A, and any other fees that may become due under this Agreement. 1. "Force Majours Event" means any event beyond the reasonable control of the party affected by such event, in- cluding without limitation 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 or judicial order, which event causes a party to delay or fall to perform under this Agreement, j. 'Image Storage' means Client Data file storage on file servers separate from the database server used to Serve Client Data. r. 'Undisputed 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 18(f) (Notices) - within 30 days of in- voice. s, "Use' means authorized access to the Site and use of the Licensed Programs and Licensed Programs Docu- mentation by Client's Designated Users solely for Client's Business Purposes, 2. a. Licenses. Yardl grants to Client a non-exclusive, non-transferable (except as expressly provided In this Agreement), limited license for Client's Designated Users to access the Site and Use the Licensed Programs and Li- censed Programs Documentation (which Yard! shall provide in electronic format) for Client's 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 subll- "Initiation Date" means the date that Is 2 weeks after conse, assignment or otherwise except as expressly pro- Yardi Client Co�*nflonilal Preparation Date: July 23, 2009 7:22 AM vided by this Agreement), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Li- censed Programs. Client may only Use the Licensed Pro- grams for Business Purposes. Client may not reverse engi- neer, douompile 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). c. Access to the Site. Yardl will use commercially reasonable efforts to make the Site and the Licensed Pro- grams accessible to Designated Users 24-hours per day, 7 days per week, excluding down time for maintenance and repair. Yardt has standing maintonance/repair/backup hours from 11;00 pre each Saturday to 3:00 am (Pacific Time) each Sunday, and nightly Sunday to Friday from 12:00 am — 2:00 am (Pacific Time). Yardi will provide as much advance notice to Client as reasonably possible under the drcums- lances for scheduled maintenance/repair down time outside of the aforementioned standing hours, and Yardl will use commercially reasonable efforts to provide as much notice to Client as reasonably possible under the circumstances for emergency maintenancelrepair downtime. 3. Term and Termination, a. Tenn. This Agreement will commence on the Effec- tive Date and remain In affect unfit terminated In accord with this Agreement, b. Termination kr CaTv*nc% Client may terminate this Agreement without cause and for its convenience upon 30 calendar days prior written notice. Upon a termination 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 an- tided to a refund of any Fees. c. Termination 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, the breaching party falls to Initiate cure within 7 days and falls to continuously and dili- gently work to cure the breach unfit 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) License 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, (C) Client's access to the Site and Licensed Programs will be disabled, and (0) Client shall pay any Undisputed Fees to Yardl, (ii) Return of Confidential Information. Upon this Agreement's termination or expiration effective date, the parties shall comply with section 9(d) (Return of Confidential Information), a. Survival. The parties' obligations under, and the provisions of, sections 4 (License Fees), 8(b) (Limited Llabill- ty for Unauthorized Client Data Access), 9 (Confidentiality), 10 (Warranties), 11 (Damage Limitations), 13 (Indemnifica- tion), 15 (Assignment) and 18 (General Provisions) shall survive this Agreement's termination or expiration. 4, h1Mfl12.EM. a. Foos. Client agrees to pay Yardl the Fees In accor- dance with the payment terms set forth In Schedule A. b. Failure to Pay. Clients failure to timely pay any Undisputed Fee when due Is a material breach subject to the tents 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 (1) this Agreement, (11) the Licensed Programs or Deliverables, (M) Client's Use of the Licensed Programs, (iv) the Licensed Programs Documents- don, or (v) any materials or supplies furnished by Yardl per this Agreement. Client Is responsible for all applicable tariffs, duties or taxes (exclusive of taxes based on Yardi's not In- come) applicable to this Agreement, cl, Partial Fee Disputes. If Client reasonably and in good faith disputes any Fees, and provides notice in accord with section 118(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. a. Third Party Software and Hardware Require- ments. Client is solely responsible for purchasing, Installing and maintaining, at Client's expense, any third party soft- ware and hardware necessary for Client's Designated Users to access the Site and Use the Licensed Programs, Yardl shall not be liable for any such third party software or hard- ware, and Client acknowledges and agrees that any assis- tance provided by Yardi in connection with such third party software and hardware shall not alter Client's responsibility or Yardi's liability disclaimer under this section 5(a) (Third Perry Software & Hardware Requirements), lb. Location. 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 (Le,, In addition to the on-site implementa- tlon/training services set forth In Schedule A) at any time and Yardl will make commercially reasonable efforts to timely accommodate Client's request. Additional on-site implemen- tation/training services are subject to the parties' mutual agreement on: (1) the schedule for performance of the addi- tional services, and (4) Yardi's Fees for the additional servic- es. c. On-SItas. Client acknowledges that In-parson Im- plementation/training service visits at a Client location re- quire a minimum visit of 8 hours per visit. Client agrees to 2 ��V Y�nrdi Client Confi Date, of Preparation: July 23, 20109 7:22 AM pay all reasonable expenses associated with on-site visits including, but not limited to, travel to 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 implements- tion/training services cancelled less than 0 business days prior to their scheduled date. d. Data Conversion. Yard! 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 post- conversion dean-up. Additional Yardl data conversion ser- vices (i.e., in addition to any Initial data conversion services set forth in Schedule A) are subject to the parties' mutual agreement on: (1) the schedule for performance of the addi- tional services, and (it) Yardt's Fees for the additional servic- es. e. Testing. Client shall have 90 days commencing upon the Effective Date (the 'Testing Period") to test 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 Yardl will refund to Client all amounts paid by Client to Yardi pursuant to 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(e) (Testing), 6. 922LLAnd P a, Designated Users. Client agrees that 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 Units (as idenfi- fied in Schedule A). The maximum number of Designated Users Is the total aggregate number of Designated Users licensed to access the Site and Use the Licensed Programs. The maximum number of Units is the maximum number of Units that Client's Designated Users may manage and ac- count for in connection with Client's Use of Die Licensed Programs. The agreed maximum Designated User and Unit 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 (0) each Designated User has a unique Password. A CiWx Designat- ed User change is subject to a one-time fee as specified in Schedule A, Clients licensed maximum number of Designated Users. d. Password Assignment. Client's application support POC will be a Designated User, will designate the other Designated Users, and will provide each other Designated Users with a Password. Each Password shall be personal and unique to 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 time. Client shall be responsible for maintaining Designated User Password security. 9. 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 to adhere to the license terms and restrictions In this Agreement. Client acknowiedges that each time a Designated User accesses the Site to Use the Licensed Programs the Designated User will be presented with a splash screen welcoming the Desig- nated User and requesting that the Designated User enter his/her unique Password. 7. Application SuaR211_4LV29rL 01. a. Application Support Service. Yard! will provide application support and upgrades for the Licensed Programs as set forth in this section 7 (Application Support & Up- graders), b, Client Contacts. Client agrees to appoint an applica- tion support POC. Client may change the application support POC upon advance written notice to Yardl. Yardl shall have no obligation to contact, or communicate with, anyone re- garding application support and maintenance Issues except Client's application support POC. Client acknowledges that It is Client's responsibility to keep Clients application support POC current, and to notify Yardi of any changes. c. Yardi Contacts. During initial Implementation, Yardl shall appoint an account manager to Client's account. After initial implementation, Yardi will either assign Client to an account manager or an application support team. Yardl may change the identity of individual account managers from time to time upon notice to client. Client's application support records relating to Client will be available to Yardi's entire application support team at all times. d. Application Support Services. Yardl 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. Yard's application support service team will use commer- daily reasonable efforts to address and solve Client's Issues but cannot guarantee satisfaction In every case, e. Total Hours Included. Client's application support allotment is specified in Schedule A. This Agreement's an- c, Additional Designated Users. Subject to: (I) at least nual periods shall begin on the Initiation Date (and each 5 business days prior written notice from Client, (11) Client's Initiation Date anniversary) and end on each Anniversary execution of an amendment to this Agreement, and (iii) sub- Date, and will not include unused application support Ifine ject to payment of additional Fri 's, Yardl will increase from prior annual periods, If Client needs additional applies.. Yard! Client Conflidentlal Doto of Preparation: July 23, 2009 7:22 AM tion support hours at any time, Client may purchase addi- tional 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) Monday through Friday (excluding holidays). g. Priority. (1) Yardi shall have the right to prioritize application support requests according to the application support 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) Client will submit support requests by telephone to Yardi's application support number. 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- lem) Client will submit support 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 i or Priority 2 Issue) • Client will submit support request by telecommuni- cations to Yardi application support • Response subject to delays for priority 1 and 2 is- sues, generally within 1 business day. ([I) Yardi will work on Priority 1 and 2 issues with 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 Ulan the latest version of the Licensed Programs gen- erally released to Yardi's clients. !. 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, Yard may suspend application support services if Client falls to timely make any Undisputed Fee payment. j. Obsolescence. Yardi reserves the right to cease providing application support service for Licensed Programs on the later of: (i) 3 years from the date on which Yardi ceases to license the Licensed Programs, or (1]) 6 years from the Effective Date, whichever is later. Yardl agrees to notify Client if and when Yardi will ceasii application support ser- fizc vices in accord with this section 70) (Obsolescence), a. Client Data Storage, Subject to Force Majoure Events, Yard] agrees to store all Client Data on Yardi's pri- mary server and back -up servers. During this Agreement's term, Client grants to Yard! a non- exciuslve license to repro- duce Client Data on Yardi's primary server and back -up servers solely for Client to use Client Data in connection with Client's Use of the Licensed Programs. Notwithstanding the foregoing, if any Client Data Is lost for any reason, Yard] agrees to use commercially reasonable efforts to recover lost Client Data and will assist Client in identifying lost Client Data. b. Limited Liability for Unauthorized Client Data Access. Yardi agrees to use (i) firewalis and other technol- ogy generally used in the trade to prevent unauthorized 3"' party access to its computer systems storing Client Date, and (ti) available encryption technology generally used in the trade to prevent unauthorized 3' party access to Client Data transmissions. Notwithstanding the foregoing, Yardi shall not be liable to Client In the event that (A) Its use of firewalls and other technology generally used in the trade fails to prevent unauthorized third party access to Client Data, or (B) its use of encryption technology generally used in the trade faits to prevent unauthorized third party access to Client Data transmissions. Nothing in this section 6(b) (Li- mited Liability for Unauthorized Client Data Access) shall constitute a representation or warranty by Yardl that Client Data storage or transmission will be Inaccessible to unautho- rized third parties. c. Client Data Backup; Client Data Retrieval. Subject to Force Majeura Events, Yardl will: (1) execute (A) nightly database backups to a backup server, (B) incremental data- base transaction log file backups every 30 minutes to a backup server, (C) weekly backups of all Client Data and the default path to a backup server, and (D) nightly incremental backups of the default path to a backup server, (11) replicate Client's database and default path to an off -site location (!,a,, other than the primary data center); and (ll) save the last 14 nightly database backups on a secure transfer server (!.a,, at any given time, the last 14 nightly database backups will be on the secure transfer server) from which Client may retrieve the database backups at any time. a. Confidential information definition. `Confidential information" means all technical and non - technical informa- tion including: (1) Client Data, (ii) patent, copyright, trade secret, and other proprietary Information, (ill), Inventions, know -how, processes, or algorithms, (iv) software programs, software source documents, abject 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, sates and marketing plans and Information, (viii) the prices offered or paid per this Agreement for Yardl's products and services, (Ix) SAS70 reports and any information related to SAS70 reports, (x) this Agreement's terms, and (A) any other Information disclosed by a party, or to which a party is exposed because of this Agreement, that the disclosing party Identifies as confidential at the time of disclosure or which — by Its nature - reasonably Yardi t Conf3 ntlal aration: July 23, 46 should be regarded as confidential. b. Nondisclosure and Nonuse Obligations, Each party (the "Receiving Party') agrees that It will not use, disseminate, or In any way disclose any Confidential Infor- mation of the other party (the 'Disclosing Party"), 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 Party agrees that It will treat 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 Party 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 Confl- dentist Information, to be bound by terms and conditions applicable to the Receiving Party under this Agreement, The Receiving Party shall immediately give notice to the DISCIOS- Ing Part/ of any unauthorized use or disclosure of the Dis- closing Party'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- ligations, The Receiving Party's obligations per section 9(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, (it) was rightfully In the Receiving Party's possession free of any confldentiality obligation at or subsequent to the time the Disclosing Party disclosed It to the Receiving Party, or (111) was developed by the Receiving Party's employees or agents Independent of, and without reference to, any infor- mation communicated to the Receiving Party by the Disclos- ing Party. A Confidential Information disclosure by the Re- ceiving Party either (A) in response to an enforceable order by a court 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 Confldantlal Informa- tion and Other Materials. The Disclosing Party's Conflden- (lei 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 Party will Promptly either (at the Disclosing Party's election) destroy or deliver to the Disclosing Party all Confidential Information and materials furnished to the Re- ceiving Party, and the Receiving Party agrees to provide a written officer's certification of jfj()'� Tci�Jvinq Party's com- pliance with the foregoing obligation. a. Third Party Information Disclosure, The Disclosing Party shall not communicate any information to the Receiv- Ing Party in violation of the proprietary rights of any third party. 10. War an a. Limited Warranty, Yard! warrants that the Licensed Programs will perform substantially as specified In the Li- censed Programs Documentation, Yardl does not warrant that the Licensed Programs will meet Client's requirements and expectations. b, Remedy for Limited Warranty Breach. If Yardi breaches the warranty set forth In section 10(a) (Limited Warranty), Yardl agrees to use commercially reasonable efforts to modify the Licensed Programs so that they con- form to that warranty. If such modification Is not commercial- ly reasonable, then Yardl will notify Client and Client may terminate this Agreement In the event Client terminates this Agreement per this section 10(b) (Remedy for Limited War- ranty Breach), Yardl will refund to Client, on a pro-rata basis, the annual Fees paid by Client to Yardl within the year prior to the effective date of CIIenVs termination. THE FORE- GOING REMEDY IS CLIENT'S SOLE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN SECTION 10(a) (Limited Warranty). d. Internet Performance Disclaimer, Yardi does not and cannot control the flow of data via the Internet, Such Dow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or Inactions of such third parties can impair or disrupt the Internet. Yardl will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur, Accordingly, Yardl disclaims any liability resulting from or relating to such events. 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 OR CAUSE OF ACTION BY CLIENT ARISING Client Doto of Preparation: July 23, 2009 7:22 AM I W4 ft M a. Yardt's Ownership. Client agrees that, as between Yard! and Client, Yardl is and shall remain the sole and ex- clusive owner of all right, title and interest in and to the Lk censed Programs, Deliverables, Site, and Licensed Pro- grams Documentation, and to all intellectual property rights in the foregoing. The only rights Client obtains in the Li- censed Programs and Licensed Programs Documentation are the licenses granted to Client In this Agreement, b. Client's Ownership. Yardl agrees that, as between Yardi and Client, Client Is and shall remain the sole and exclusive owner of all right, title and Interest In and to Client Data, subject to the License granted to Yard! for Client Data use in section 8(a) (Client Data Storage). 13. WJgm&1ft_c_qJ1o_n- a. Indemnity. Yard[ agrees to 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 Documentation, and Deliverables In accordance with this Agreement's terms Infringes on a third party's proprietary Information, trade- mark, copyright, patent rights or intellectual property rights, or misappropriates a third party's trade secrets. b. Indemnity Conditions, Yardi's defense and indem- nification obligation per this section 13(b) (Indemnity Condi- tions) is conditioned upon the following: (1) Client providing Yardi with prompt written notice of any claim for which in- demnification is sought; (I!) 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 (ill) Client's reasonable 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 to result — in an injunction against Client's continued Use of the Licensed Programs, Yardl will (1) replace or modify the Licensed Programs to avoid the misappropriation/Infringement claim, (8) secure Client's right to continue Use of the Licensed Programs, or (111) if neither (1) or (11) Is commercially practicable, either party may ten-ninate this Agreement upon written notice to the other party, 14. EE9X1MMW]g_§1EyJM. a. Programming Services, Yardl provides program- ming services including, without limitation, database custo- mizations, user Interface customizations, database reports, database scripts and other programming services (collective- ly, *Programming Services'). b. Programming Services Tsgrn mit, The Fees for Pro- gramming Services, if Initially ordered, are set forth In Schein clute 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 arcep- tance, of'. (1) Yardi's schedule for meeting Client's Program- ming Service request, and (11) Yardi's Fees for such Pro- gramming Services. c. Deliverable& License, Subject to Client's full pay- ment of all Undisputed Fees related to Programming Servic- es, Yardl 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 Dellverables in connection with their Use of the Licensed Programs, a. Assignment Limitation, Except for the exceptions specified In section 15(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 Yard! shall not unreasonably withhold. Except for the Permitted Exceptions, any attempted assignment made without Yardi's prior express written consent Is vold and a material breach of this Agreement, b. Permitted Exceptions. Subject to the conditions precedent set forth in this section 15(b) (Permitted Excep- tions), Client may assign the Licensed Programs without Yardi's prior consent and upon notice: (1) 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 AgreemenCs execution, and (B) Client or Client's successor providing to Yardl a written rabfi- cation and assumption of this Agreement (in a form reason- ably satisfactory to Yardl) concurrent with the assignment. 16, Qw"Ljmjn. a. Server Location. Yard! reserves the fight to locate the servers and other equipment needed to provide the say vices contemplated by this Agreement either at its facilities or at the facilities of Independent service providers. Yardi may change the location of the servers and other equipment needed to provide the services under this Agreement at any time during this Agreement's term; provided that any such change of location shall not affect Yardi's obligations tinder this Agreement and shall not Interrupt Client's access to the Site, Client Data and the Licensed Programs. 17. MjdMo. 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 the other In any court, or Initiate any other legal proceeding, unless and until the party 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. Yardi Client Con Ventlal N, fl _fla__ 011,-R, of Preparation: July 23, 2009 7:22 AM 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 not less than 10 or more than 20 days from the date the party requesting media- don gives notice of the request for mediation to the other party. The parties shall conduct the mediation In Santa Bar- bara, California. The parties shall equally bear the mediation costs. c. Mediation Confidentiality. 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 6 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 documents. Each party shad send to the mediation a person who ties authority to bind the party. e. Non-Binding, 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 to the party at law or in equity. 18, - 21rnYPJ_?12A-1J=, a, Independent Contractor Status. The parties agree that they are Independent contractors and nothing in this Agreement is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. No party to this Agreement shall have any ex- press or implied dght or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agr"ment, or undertaking with any third party. b. Governing Law. This Agreement shall be governed and determined by the laws of the United States and the State of California as such laws are applied to 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 Cadfomia (or the court 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. Injunctive Relief. (1) The parties acknowledge and agree that, if Accordingly, If Client breaches any provision of sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality), or 15 (As- signment) Yardi may seek specific performance of Client's obligations under those sections and Injunctive relief against any further violations of those sections. (it) The parties acknowledge and agree that, If Yardi breaches any of its obligations under section 9 (Confi- 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 9 (Confidentiality) Client may seek specific performance of Yardi's obligations under that section and Injunctive relief against any further violations of that section, a. Binding Effect This Agreement Is binding on and inures to the benefit of the parties and their permitted as- signs, successors, and legal representatives. I. Notices. (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 dellvery 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 forth below. (!I) If to Client: Attn: Linda Foster HOUSING AUTHORITY OF THE CITY OF SANTA ANA PO Box 22030 Santa Ana, CA 92702 (id) If to Yardi: Attn: Chief Operating Officer YARDI SYSTEMS, INC. 430 S, Fairview Ave. Goleta, CA 93117 V@b_LWSJ_LQ; Attn: Legal Department 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. 9. Waiver. The waiver of a party's breach of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach, h. Severablilty. If a court or other body of competent jurisdiction determines that any part 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 not In- tended to form a material part of this Agreement. Uient breaches any of its obligations under sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality) or 15 (As- j. Entire Agreement. This Agreement constitutes the signment), Yard[ might Incur irreparable harm and damage final, complete, and exclusive statement of the agreement that might not be fully rxurrpensatcrr with monetary damages. between the parties pertaining to this Agreement's subject 7 Yardi / Client Cianttint,a, (o of Prrtp9ratican: July 23,2009 7:22 AM matter and supersedes all prior and contemporaneous un- derstandings or agreements of the parties. No party has b"n 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•Solicilt/Non•filre. The parties agree not to soli- cit (other than a general solicitation to the public) the em- ployment of, engage as an Independent contractor, or hire, any employee of the other party while such person is an employee of the other party and until such person has not been an employee of the other party for 6 months. L Modification. The parties may modify or amend this Agreement by a writing signed by both parties. m. Force Majoure. Neither party shall be liable tinder this Agreement for failure or delay In performance caused by a Force Majoure Event, If a Force Majours Event occurs, the party affected shall use commercially reasonable efforts to resume the performance excused by the Force Majoure Event. n. Signature: Counterparts. This Agreement Is not binding on the parties until both parties have signed it 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 contents. The parties may transmit signatures on this Agreement by electronic transmission, which shall be bind- ing upon the parties. Counterparts with original signatures shall be provided to the other party within 6 days of electron- ic transmission; however, the failure to provide the original counterpart shall have no effect on this Agreement's enfor- ceability or binding nature, If executed in counterparts, this Agreement will be as effective as If simultaneously executed. <Signature Page Follows> \I- - �v<Yardi Client \ Co_nf_ldll_lal- Dato� of Preparation: July 23, 2009 7:22 AM HOUSING AUTHORITY OF THE CITY OF SANTA ANA ("Client") 'HIAJ, NELSUN Executive Director ATTEST:- L .�PATRIGIA E. H 5[- V Secretary APPROVED AS TO FORM: Joseph W. Fletcher General Counsel HOUSING AOTHORI OF THE CITY OF SANTA ANA Lisa st—Kon k AssdInt C;oum"W tY, ARDI SYSTEMS, INC. ( "Yard} ") ay� Print Name; _A �AILV\ Date:, Tax 10 No.: 77-0049051 Rev. 111808 Y,,�Irdi Cliont Date of Preparation: July 23, 2009 7:22 AM