HomeMy WebLinkAboutMINUTES - 05062008 - C.74 ;F_
BOARD OF SUPERVISORS Contra
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FROM: Dennis Barry AICP Costa
o;
Community Development Director '
�.a. .� County
DATE: May 6, 2008 SrAcoun��' '
SUBJECT: U.S. Communities Housing Compliance Services Contract (REVISED)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
APPROVE and AUTHORIZE the Deputy Director - Redevelopment to execute an agreement
with Compliance Services, LLC, in the amount of $475,000 for access to a web-based
compliance monitoring software and affordable housing reporting system, effective May 6,
2008 to May 6, 2013.
FINANCIAL IMPACT:
The costs for this contract will be covered by a combination of federal grant administrative
funds (Community Development Block Grant and HOME.Investment Partnership program) and
multi-family mortgage revenue bond administrative funds allocated to the County. No General
Fund obligation is involved. The use of the web-based compliance monitoring system is
expected to introduce significant efficiencies into the work of housing staff.
CONTINUED ON ATTACHMENT: X YES SIGNATURE:
H*CONIMENDATION OF COUNTY ADMINISTRATOR ❑; ECOMMENDATION OF BOARD COMMIT EE
[APPROVE ❑ OTHER'
r
SIGNATURE(S):
ACTION OF B DON
APPROVED AS RECOMMENDED OTHER ❑
VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND
CORRECT COPY OF AN ACTION TAKEN AND
NUNANIMOUS(ABSENT ) ENTERED ON THE MINUTES OF THE
REDEVELOPMENT AGENCY ON THE DATE
AYES:_ NOES: SHOWN.
ABSENT: ABSTAIN:.
ATTE T
Contact: Jim Kennedy (335-7225)
JOHN CULeIEN, CLERK OF THE BOARD OF
cc: CAO SUPERVISORS AND COUNTY ADMINISTRATOR
County Counsel
Community Development
Via Community Developemnt
Compliance Services, LLC By: AgAgMreputy
BACKGROUND:
The Community Development Department proposes to enter into an agreement with U. S.
Communities Compliance Services ("Compliance Services"). Compliance Services
licenses a web-based compliance monitoring and software system that enables property
owners and organizations to handle affordable housing reporting through the Internet. The
software runs a series of checks to ensure individual tenants and the overall property is in
compliance with applicable Federal, State and local income and rent restrictions.
The Community Development Department currently manages an affordable housing
portfolio of 65 multi-family properties and it is growing. The Department devotes
approximately 60% (60% FTE) of a Housing Technician position to multi-family compliance
matters and it is increasing as the numbers of transactions grow. With the full
implementation of the web-based compliance system we estimate that the staffing burden
will drop to approximately 25% FTE. In addition, the web-based compliance system will
bring efficiency to our non-profit and private sector partners who are compiling and
submitting hard copy compliance materials to the County presently. The full
implementation will make the process of completing federal and state monitoring reports
much more efficient. Equally as important, management staff will now have access to
compliance data in a format that is readily available and easily subject to analysis.
The contract is pursuant to .the terms of an underlying Master Intergovernmental
Cooperative Purchasing Agreement and the Master Agreement between Compliance
Services and the California Communities Development Authority. The County is a
"participating public agency" and the California Statewide Communities Development is the
"lead public agency".
The initial term of the agreement is five years. Thereafter, the agreement will automatically
renew for successive one year periods unless cancelled by written notice of termination at
least five (5) calendar days prior to the renewal date.
License fees are paid as follows:
One Time Fee — Set up fees for 65 properties is $87,000 for the first year.
Recurring Fees — Software license for.65 properties is $65,000 per year for the following
four years.
Annual License Fees — $1,000 per property for initial 65 properties. Additional properties can
be added to this agreement for .50 cents per unit per month ($6.00 per unit per year). For
example, the incremental license fee for the BART Transit Village Project at Contra Costa
Centre of 422 units is $2,532 per year. Additional properties may be added at any time.
License fees are to be paid on total units in the property.
One Time Set-Up Fee — Set up costs to be priced at $175 per hour to load database. Up to
two users (2) will be allowed per property. Additional users can be added for $500 annually
per user.
Custom Coding Fee — To be priced based on the scope of work and customization needed
at $175 per hour.
For one-time fees, a deposit of 50% is due prior to commencement of the work. The final
balance is due after a 30 day trial period by the County.
Indemnification — The indemnity provision in the Master Agreement differs slightly from the
County's standard indemnity provision. County Counsel was directly involved in the
negotiation of these provisions. The Master Agreement states that the Licensor shall
indemnify, hold harmless and defend action or allegation brought against the Customer as
a result of Licensor's material breach of this Agreement. The Customer will indemnity and
hold harmless Licensor from any claims, demands, losses, liabilities, costs and expenses
arising out of Customers use of Software. Each party's liabilities are contingent upon the
first party ("Notifying Party") providing prompt written notice to the second party ("Notified
Party") of any such claim, action or allegation and gives the Notified Party the exclusive
right to defend any such claim, action or allegation and make settlements thereof at its own
discretion so long as.the settlement does not adversely affect the Notifying Party. The
Notifying Party may not settle or compromise the claim, action or allegation, except with
prior written consent of the Notified Party.
000,U.S. COMMUNITIES
Compliance Services
EXHIBIT Al
I
SUPPLEMENTAL SOFTWARE,FEES,USERS,TERM SHEET FOR
PARTICIPATING PUBLIC AGENCIES
i
WHEREAS,the California Statewide Communities Development Authority(the"Customer")under an arrangement with the
U.S. Communities Purchasing& Finance Agency have entered into a Software License&.Hosting Agreement("Agreement")
with Compliance Services,LLC("Licensor")dated 6/27/07;and
WHEREAS,the Customer and the Licensor wish to permit Participating Public Agencies,as described in Section 11.13 of the
Agreement,to acquire licenses for their own use per the terms and conditions of the Agreement; and
WHEREAS,the Licensor has entered into the U.S. Communities Administration Agreement,as stipulated by Section 1 1.13 of
the Agreement;and
WHEREAS,the Participating Public Agency known herein as Contra Costa County(the"Participating Public Agency")has
executed the U.S. Communities Master Intergovernmental Cooperative Purchasing Agreement via electronic registration at
www.uscommunities.org;
NOW THEREFORE SHALL IT BE KNOWN that by execution of this Exhibit A 1 to the Agreement that the Participating
Public Agency shall be granted a limited,nonexclusive,non-sublicenseable,revocable and nontransferable license per the terms
and conditions of the Agreement,as amended by the provisions of this Exhibit Al.
Software(Description:
The Software is the Licensor's web-based housing compliance software. Users of the Software can access the Housing
Compliance software from a standard web browser.
■ Software description:
o The Software will enable the compliance 'monitoring of affordable housing properties with various government
regulations. The functionality of the Software will be accessed via password at the www.housingcompliance.org
website.
■ Participating Public Agency hardware requirements (Participating Public Agency is solely responsible for providing or
acquiring this hardware and expressly acknowledges that Licensor is not responsible for providing this hardware):
o Any computer that supports the Software, such as Pentium-based or equivalent computers running Windows XP,
Windows NT, Windows 2000, or Apple Macintosh.
• Participating Public Agency software requirements (Participating Public Agency is solely responsible for acquiring
separate licenses for these components, and expressly acknowledges that Licensor is not responsible for providing this
software):
o Licensor supports the following client browsers: Netscape Navigator, versions 7.0 or higher, Microsoft Internet
Explorer,versions 6.0 or higher,Mozilla Firefox version 2.0 or higher
o Other client browser software programs may work successfully,but are not directly supported by Licensor.
o Software requires the following additional software: MS Word, versions 2003 or higher, Excel versions 2003 or
higher,and Adobe Acrobat Reader,versions 5.0 or higher.
Licensor may alter the software from time-to-time as ongoing fixes and improvements are made. As such the screen view may
change. Best efforts will be made to communicate such changes to Users in advance.
Licensor may alter the list of required hardware and supporting software from time-to-time, but will attempt to retain
compatibility with Participating Public Agency's existing hardware and supporting software.
Page 1 of 11
9
U.S.. COMMUNITIES
Compliance Services
Licensor is not responsible for the cost, installation, maintenance or support of any third-party software, hardware, or
functionality developed as custom modifications to the Software.
Hosting of all Software will be provided by Licensor; Participating Public Agency is responsible for providing its own Internet
connection to Use the Software. y
Annual License Fees—$1,000 per property for initial 64 properties(see Exhibit C) Additional properties can be added to this
agreement fir.50 cents per unit per month ($6.00 per unit per year). For example,the incremental license fee for the Transit
Village Project of 424 units is$2,544 per year. Additional properties maybe added at anytime. License fees to be paid on total
units in the property. Additional fees will be applicable as identified in Exhibit B of the Agreement.
Adding Properties—Additional properties will be added to the database within 7 working days of receipt of all recorded
agreements governing affordability restrictions on the property and the"New Property"excel worksheet.
License Fee Adjustments—License fee pricing will remain in effect for the first twelve(12)months of the Contract. An
initial price adjustment can be requested after the first twelve(12)month period of the contract. Subsequent requests
can be submitted on an annual basis. Request for price adjustments must be supported by appropriate written
documentation such as the Consumer Price Index: If the Participating Public Agency approves the adjusted price terms,
Participating Public Agency shall issue written approval of the change and the effective date of the new pricing. Price
increase shall not exceed five(5%)over one(1)calendar year period. Price adjustments will not be retroactive. Price
adjustments are effective immediately.
One Time Set-Up Fee—Set up costs to be priced at$175 per hour to load database. Up to two users(2)will be allowed per
property. Additional users can be added for$500 annually per user.Costs shall not exceed those listed in"One Time Fees"as
listed in Exhibit B.
Custom Coding Fee—to be priced based on the scope of work and customization needed at$175 per hour. Costs shall not
exceed those listed in"One Time Fees"as listed in Exhibit B.
Authorized Representative—The County shall designate a representative who will be Licensor's primary contact person for this
project. The Authorized Representative is to be identified in Exhibit D.
Minimum Number of Licensed Users—Participating Public. Agency shall at all times have at least 1 licensed named User(s).
Participating Public Agency may at any time during this Agreement and without the assistance of Licensor add additional
licensed Users simply by creating new Users within the Software. Likewise, Participating Public Agency may also reduce the
number of licensed Users down to the Minimum Number of licensed Users by deactivating Users within the Software.
Billing and Payment Terms—The annual license fees,plus any additional fees specified above,will be billed upon signature of
this Exhibit Al. Thereafter, Participating Public Agency shall be billed annually in advance. Increases and decreases in the
number of Users and the number of units shall be prorated to the month added/deactivated and billed in the following month.
Pavment terns are net thirty(30)calendar days from date of invoice.
For one-time fees, a deposit of 50% is due prior to commencement of the work. The final balance is due after a 30 day trial
period by the County. Licensor will notify the County the start and finish date of the 30 day trial period.
Modification — The Agreement may only be modified by written amendment authorized by the Participating Public Agency
Board of Supervisors and executed by the Participating Public Agency and Licensor.
Term of Agreement—The initial term of this Agreement is five years. Thereafter,this Agreement shall automatically renew for
successive one-year periods unless Participating Public Agency provides Licensor written notice of termination at least five (5)
calendar clays prior to the renewal date. Licensor reserves the right to alter its fees.in conjunction this Agreement provided that
such alteration occurs at least ten(10)calendar days prior to the renewal date.
The Agreement shall remain in effect until termination by a party giving 30 days written notice to Compliance Services LLC at
2033 N. Main Street,Suite 700, Walnut Creek CA 94549.
Page 2 of 11
U.S. COMMUNITIES
G'ompliance Services
IN WITNESS WHEREOF, duly authorized representatives of each of the parties has executed this Exhibit Al to the
Agreement:.
Licensor: Participating Public Agency
Compliance Services, LLC
Title:
Title_ Compliance Director
Date:
Date: " 74
Address:
Address:
2033 N. Main St. Suite 700
WalnutC:reek.CA 94596
Fax:
Fax: (925)933-8457
Page 3 of 11
U.S. COMMUNITIES
Compliance Services
EXHIBIT B
SERVICES AGREEMENT
Subject to Customer's timely and full payment to Licensor of the fees set forth below, Licensor will perform the services
outlined below as have been agreed upon by both Customer and Licensor. As stated in Section 6 of the Agreement,any
modifications will be discussed and agreed upon by both parties. For any modifications that exceed the scope of the services
outlined below,an estimate will be prepared by Licensor.
Services
■ Web-based Compliance Reporting System:
o Set-up Fee(one time):
■ Load property and related regulatory agreements and compliance requirements into the database.
Recorded regulatory agreements will be scanned into the system.Up to six additional .pdf files will
be loaded into the database for each property.Customer must provide the files in .pdf format.
■ Software License—a license will be granted for up to 3 users per property. Additional users can be added for$500
per user. Online reporting and tracking system will be used to provide reporting capabilities to properties. Customer
will have remote internet access to the compliance reporting system via user accounts. User training will be
provided via web based conference call. A detailed User Guide will also be provided. Software is web-based and is
accessible by Customer 24 hours a day, 7 days a week(with the exception of scheduled maintenance).
■ Custom Coding—HCD rents and other applicable income limits and other custom coding as desired by client will
be performed at a rate of$175 per hour. This is a one time fee to cover the custom coding.
Customer agrees to pay the fees set forth below in connection with the services outlined in Exhibit B of the Agreement. Any
changes to the project which significantly impacts the amount of work will be considered outside the scope of this schedule,as
per Section.6 of the Agreement.
....:Work;Item.:. On
e time :.< .: ..:.: ;•.;,: .` '. :Recurring..
One Time Fees
Set-up Fees for 65 Properties $ 87,000
Recurring Fees
Software License for 65 Properties $ 66,544
Total $ 87,000 $ 66,544
Assumptions
Customer must provide a recorded copy of the Regulatory Agreements for all funding agencies and properties. Work
will not be*in until copies of all recorded Regulatory Agreements are received. Additionally,the exact report format required
for all reports to the public agency will be provided by the Customer.
Pane 4 of 11
U.S. COMMUNITIES
Compliance Sertures
IN WITNESS WHEREOF, duly authorized representatives of each of the parties has executed this Exhibit B to the
Agreement.
Licensor: Participating Public Agency
Compliance Services,LLC
I ` By.
Title:
Title: Compliance Director Director
Date:
Date:
Address:
Address:
U.S. Communities Compliance Services Services
_ 2033 N. Main St. Suite 700 .
Walnut Creek,CA 94596
Fax:
Fax: (925)933-8457
Page 5 of 11
o
U.S. COMMUNITIES
Compliance Services
Exhibit C
1. Acalanes Court
1988 Trinity Avenue
Walnut Creek,CA 94596
2. Alvarez Court
760 Alvarez Court
Pinole,CA
3. Antioch Hillcrest Terrace
3420 Deer Valley Road
Antioch, Ca 94509
4. Aspen Court
12.1 Aspen Drive
Pacheco,Ca 94553
5. Bella Monte Townhomes
2420 Willow Pass Road
Bay Point,CA 94565
6. Bollinger Crest Apartments
4000 Bollinger Crest
San Ramon CA 94583
7. Byron Park
1700 Tice Valley Boulevard
Walnut Creek CA 94595
8. Caldera Place
2,401 Bonifacio Place
Concord, Ca 94520
9. Camara Circle
2554 A Camara Circle
Concord, Ca 94520
10. Canyon Oaks at Windemere
1 Amberstone Lane
San Ramon CA 94583
11. Carquinez Vista Manor(Crockett
Senior)
1212 Wanda Street
Crockett,Ca 94525
12. C:hesley Apartments
802 Chesley Avenue
Richmond CA 94801
Page 6 of 11
U.S. COMMUNITIES
Compliance Services
13. Church Lane/Rubicon
2555 Church Lane
San Pablo,Ca 94806
14. Coggins Square Apartments
1316 Las Juntas
Walnut Creek,Ca 94597
15. Columbia Park Manor
1780 Chester Drive
Pittsburg, Ca 94565
16. Community Heritage
North Richmond Senior Housing
1555 Third Street
North Richmond, Ca 94801
17. Cornerstone Apartments
2:00 Brookcliff Circle
San Ramon CA 94583
18. Courtyards @ Cypress Grove
2010 Rubens Way
Oakley,CA 94561
19. Creekview Apartments/Muirlands .
1108 Crestfield Drive
San Ramon CA94582
20. Crescent Park Apartments
5000 Hartnett Avenue
Richmond CA 94804
21. Cypress Meadows
3950 Lone Tree Way
Antioch CA 94509
22. Del Norte Place
1 1720 San Pablo Avenue.
El Cerrito CA 94509
23. Delta View Apartments
3915 Delta Fair Boulevard
Antioch CA 94509
24. El Cerrito Royale
6510 Gladys Street
El Cerrito CA 94530
25. Elaine Null Apts/Alves Lane
300 Water Street
Bay Point,Ca 94565
Page 7 of 11
U.S. COMMUNITIES
(:omphance Services
26. Falicon Bridge
500 Copperset Road
San Ramon CA 94583
27. Gateway Apartments
Pittsburg CA 94565
28. Giant Road
Giant Road
San Pablo
29. Golden Oak Manor/EAH
5000 Kelsey Lane
Oakley, Ca 94561
30. Heritage Park&Hilltop
3811 Lakeside Drive
Richmond CA 94806
31. Hidden Cove Apartments
2901 Mary Ann Lane
Bay Point CA 94565
32. Hilltop Commons Apartments
15690 Crestwood Drive
San Pablo CA 94806
33. Lafavette Town Center
3594 Mt. Diablo Boulevard
Lafayette CA 94549
34. Lakeshore Apartments
600 Wilbur Avenue
Antioch CA 94509
35. Lakeside Apartments
1897 Oakmead Drive
Concord CA 94520
36. Liberty Village Apartments
298 W. Chanslor
Richmond CA 94801
37. Marina Heights
I Marina Boulevard
Pittsburg CA 94565
38. Mill Creek at Windemere
:!100 Waterstone Place
San Ramon CA 94583
39. Mission Bay Apartments
1056 Weldon Lane
Bay Point CA 94565
Page 8 of 11
U.S. COMMUNITIES
Compliance Services
40. Park Regency Apartments
3128 Oak Road
Walnut Creek CA 94597
41. Pinecrest Apartments
1945 Cavallo Road .
Antioch,Ca 94509
42. Pinole Grove
800 John Street
Pinole,CA 94564
43. Presidio Village
200 Presidio Lane
Pittsburg,CA 94565
44. Riley Court
2050-2061 Riley Court
Concord
45. Riivershore Apartments
112' Shoreview Court
Bay Point CA 94565
46. RiverStone Apartments
2200 Sycamore Drive
Antioch CA 94509
47. Rodeo Gateway Senior
710 Willow
Rodeo,Ca 94572
48. Rumrill Place/LFCD and OCHI
1:583 Rumrill Rd
San Pablo,Ca 94806
49. Runaway Bay
2201 San Jose Drive
Antioch CA 94509
50. The Seasons Apartment Homes
125 Cedar Pointe Loop
San Ramon CA 94583
51. Sierra Gardens
175 Sierra Road
Walnut Creek, Ca 94596
52. Silver Oak Apartments/Oakley Main St.
4991 Gardenia Ave.
Oakley,Ca 94561
Page 9 of 11
U.S. COMMUNITIES
Compliance Services
53. Sycamore Place
1100 Sycamore Court
Brentwood,Ca 94513
54. Sycamore Place 11
161 Sycamore Ave
Brentwood CA 94513
55. Sycamore Place
35 Laurel Drive
Danville,Ca 94526
56. Terrace Glen Apartments/RCD
107 West 20th St.
Antioch, Ca 94509
57. The Landings
935 East St.,
Pittsburg, Ca 94.565
58. Tice Oaks
2150 Tice Valley Blvd
Walnut Creek,Ca 94595
59. Victoria Green
163 Paradise
Hercules, Ca
60. Villas @ Monterosso
1000 Casablanca Terrace
Danville CA 94506
61. Virginia Lane
(Maplewood/Golden Glen/Eden)
1 1.2]-1 140 Virginia Lane
Concord
62. West Rivertown
81 1 West 4th Street
Antioch,Ca 94509
63. Willowbrook Apartments
1 10 Bailey Road
Bav Point CA 94565
64. 63 Unit Property(TBD)
Page 10 of 11
Compliance Services - Project Changes
4/14/08
Delete:
7. Byron Park - 187 units
11. Carquinez Vista - 36 units
53. Sycamore Place -,41 units
54. Sycamore Place II - 39 units
57. The Landings - 8 units
64. TBD - 63 units
Total units - 374
Add:
Brentwood Senior Commons - 80 units
Brentwood, CA
Casa Adobe - 54 units
San Pablo, CA
Grayson Creek - 70 units
Pleasant Hill, CA
Hookston Manor - 100 units
Pleasant Hill, CA
Rivertown Place - 40 units
Antioch, CA
Samara Terrace - 52 units
Hercules, CA
Villa Vasconcellos - 70 units
Walnut Creek, CA
Total units - 466
U.S. COMMUNI IES
Compliance Services
EXHIBIT D
CONTRA COSTA COUNTY CONTACTS FOR COMPLIANCE SERVICES
Primary Contact
Name: Jim Kennedy
Title: Deputy Director- Redevelopment
Mailing Address: 2530 Arnold Drive Suit 190 Martinez, CA 94553
Delivery Address (if different):
E-mail: jkenn@cd.cccounty.us
Telephone: (925) 335-7225
Fax: (925) 335-7201
Secondary Contact
Name: Kara Doublas
Title: Housing Program Manager
Mailing Address: 2530 Arnold Drive Suite 190 Martinez, CA 94553
Delivery Address (if different):
E-mail: kdoug@cd.cccounty.us
Telephone: (925) 335-7223
Fax: (925) 335-7201
(Add additional contacts as needed]
Page 1 of]
MASTER SOFTWARE LICENSE& HOSTING AGREEMENT
This MASTER SOFTWARE LICENSE&HOSTING AGREEMENT(this"Agreement")is entered into
as of In 1a3/O: - ("Effective Date"), by and between Compliance Services, LLC ("Licensor")
under arrangement with the U.S. Communities Purchasing & Finance Agency, and the purchaser of the
software licensed hereunder, the California Statewide Communities Development Authority (the
"Customer"),and describes the terms and conditions pursuant to which Licensor shall Iicense such software
to Customer.
In consideration of the mutual promises and upon the terms and conditions set forth below, the .
parties agree as follows:
1. Definitions.
1.1. "Confidential Information" means all Softvare(as that term is defined below), Documentation
(as that term is defined below),information,data,drawings, benchmark tests(including tests performed by
Customer), specifications, trade secrets, object code and machine-readable copies of the Software, source
code relating to the Software, and any other proprietary information supplied to Customer by Licensor or
supplied to Licensor by Customer, including all items identified as the confidential or proprietary
information of Licensor by use, of the term "confidential information" or similar term in any other
agreement between Customer acid Licensor whether executcd prior to or after the Parties entered into this
Agreement.
1.2. "Documentation" means any instructions manuals or other materials, and on-line help files,
regarding the use of the Software.
1.3. "License Fees"has the meaning given to it in Section 5.1 hereof.
1.4. "Services"means the services described on Exhibit B,which is hereby incorporated by reference. .
I.S. "Software" means the computer software program described on Exhibit A and Al, which is
hereby incorporated by reference.
1.6. "Term"has the.meaning given to it in Section 10.1 hereof.
1.7. "Update" means a release or.version of the Software containing functional enhancements,
extensions, error corrections or fixes that is generally made available (other than media and handling
charges)to Licensor's customers►vho have contracted for Services.
1.8. "Use" of Software means executing,'accessing or displaying the Software while it is hosted by
Licensor.
1.9. "User"means all of Customer's employees,officers,and directors,and also including contractors
subcontractors directly employed, managed, and controlled by Customer in a manner resembling an
employer-employee relationship,who have authorization to access the Software.
2. Grant of License.
2.1. Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to
Customer a limited, nonexclusive, nonsublicenseable, revocable and nontransferable license to (a) use the
Software described on Exhibit 'A and Al, (b) use the Documentation in connection with use of the
Software,and(c)provide the number of Users set forth on Exhibit A and Al with access to the Software.
2.2. Delivery. Licensor shall host the Software on its servers and make it available to Customer as
described in this Agreement. Licensor shall make available via electronic download the Documentation and
updates thereto. Customer acknowledges that no copy of the Software or the source code of the Software
will be provided to Customer.
3. Ownership. The license granted by Licensor to Customer herein transfers to Customer neither
title nor any proprietary or intellectual property rights to the Software,Documentation, or any copyrights,
Page 1 of 14
patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted
herein. Licensor retains all right, title and interest in and to the Software and Documentation and any
enhancements and modifications.thereto. Customer retains all right, title and interest in and to any data
provided by Customer and which is stored using the Software or any of Licensor's systems.
4. License Restrictions.
4.1. Restrictions. Customer agrees that it will not itself, or through any parent, subsidiary, affiliate,
agent or other third party:
4.1.1. allow more than the maximum number (if applicable) of authorized, licensed Users or
concurrent Users set forth on 1-1 hibit A and Al to access and/or use the Software;
4:1.2. modify,decompile, disassemble,reverse engineer,or otherwise translate the Software,in whole
or in part;
4.1.3. write or develop any derivative software or any other software program based upon the
Software or any Confidential Information;
4.1.4. use the Software to provide services to third parties;or otherwise use the Software on a`service
bureau'or time-sharing basis;
4.1.5. sublicense the Software to any third party;
4.1.6. provide,disclose,divulge or make available to,or permit use of the Software by any third party,
other than Customer's Users, without Licensor's prior written consent, except as described pursuant to
Section 11.13;or
4.1.7. disable or modify any licensing control features of the Software.
5, License and Service Fees.
5.1, Fees. In consideration of the license granted pursuant to Section 2.1; Customer agrees to pay
Licensor the license fees specified on Exhibit A and Al ("License Fees") and the fees for Services
specified in Exhibit B("Service Fees").
5.2, Payments. Customer shall pay the full invoiced amount according to the payment terms specified
on Exhibit A and Al and/or Exhibit B.
5.3. Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include
any taxes, duties, or similar charges imposed by any govemment. Customer agrees to pay or reimburse
Licensor for all federal, state, or local sales,use, personal property, excise or other taxes, fees, or duties
arising out of this Agreement or the transactions contemplated by this Agreement(other than taxes on the
net income of Licensor). Custorner agrees to hold harmless Licensor from all claims and liabilities arising
from Customer's failure to report or pay such taxes.
6. Services; Modification of Software.
6.1, Subject to timely payment in full of all amounts payable by Customer to Licensor hereunder,
including,without limitation,the Services Fees set forth on Exhibit B,Customer shall receive Maintenance,
Support and Hosting in accordance with the terms of Exhibit B.
6.2. To the extent that Customer desires services beyond those provided on Exhibit B, including but
not limited to having the Software modified to an extent greater than that provided for on Exhibit B, the
parties shall discuss any such services and shall negotiate to determine the fees therefor. If the parties are
unable to negotiate and agree on such terms,Licensor shall have no duty to provide any such services.
7. Limited Warranty and Limitation of Liability.
7.1. Licensor warrants that during the Term the Software will perform in substantial accordance with
the Documentation. If during the Term the Software does not perform as warranted, Licensor shall, at its
option: (1)undertake, through:reasonable effort, to (a) correct or cure any reproducible defect by issuing
corrected instructions,a restriction,or a bypass to the Software,or(b)replace such Software free of charge;
or (2) if neither of the foregoing is commercially practicable, terminate 'this Agreement and refund to
Page 2 of 14
Customer a pro rata portion, if any, of the License Fees equal to the number of days that have not yet
transpired during the current billing period. The foregoing are the Customer's sole and exclusive remedies
for'breach of the warranty set forth in this Section 7.1. The warranty set forth above is made to and for the
benefit of Customer only.
7.2. Licensor is not responsible for obsolescence of Software that may result from changes in the
Customer's requirements. The warranty set forth in Section 7.1 shall apply only to the most current version
of the Software issued by Licensor from time to time. Licensor assumes no responsibility for the use of
superseded,outdated,or uncorrected versions of the Software.
7.3. Conditions. The warranty set forth in Section 7.1 will apply only if:
7.3.1. the Software has been used at all times in accordance with the Documentation;
7.3.2. no modification, alteration or addition has been made to the Software by persons other than
Licensor or Licensor's authorized representative;
7.3.3. Customer has not requested modifications, alterations or additions to the Software that cause it
to deviate from the Documentation;and
7.3.4. Customer promptly notifies Licensor of the existence and nature of any defect and provides
reasonable assistance and access to reproduce and resolve such defect.
7.4. Disclaimer. EXCEPT AS SET FORTH ABOVE, THE SOFTWARE IS PROVIDED "AS IS",
LICENSOR MAKES NO WARRANTIES, WHETFLR EXPRESS, IMPLIED, OR STATUTORY
REGARDING OR RELATING .TO THE SOFTWARE, DOCUMENTATION, AND/OR ANY
MATERIALS OR SERVICES FURNfSIIED OR PROVIDED TO CUSTOMER UNDER THIS
AGREEMENT, INCLUDING ANY SERVICES. LICENSOR SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY ANTD/OR FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION
AND/OR ANY OTHER MATERIALS AND SERVICES,AND WITH RESPECT TO THE USE OF ANY
OF THE FOREGOING.
7.5. Limitation of Liability. EXCEPT WITH RESPECT TO (A) LICENSOR'S OBLIGATIONS
PURSUANT TO SECTION 8.1., (B) CUSTOMER'S OBLIGATIONS PURSUANT TO SECTION 8.3
AND (C) EACH PARTY'S OBLIGATIONS PURSUANT TO SECTION 9.1, IN NO EVENT WILL
EITHER PARTY BE. LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR
SERVICES PERFORMED HEREUNDER,WHETHER ALLEGED AS A BREACH OF CONTRACT OR
TORTIOUS CONDUCT,INCLUDING NEGLIGENCE,EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, LICENSOR WILL NOT BE LIABLE
FOR ANY DAMAGES CAUSED BY DELAY IR'DELIVERY OR FURNISHING THE SOFTWARE OR
ANY SERVICES. EXCEPT WITH RESPECT TO(A) LICENSOR'S OBLIGATIONS PURSUANT TO
SECTION 8.1, (B) CUSTOMER'S OBLIGATIONS PURSUANT.TO SECTION 8.3 AND (C) EACH
PARTY'S OBLIGATIONS PURSUANT TO SECTION 9.1, EACH PARTY'S LIABILITY TO THE
OTHER PARTY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT,
EXCEED THE LICENSE FEES ACTUALLY PAID BY CUSTOMER TO LICENSOR UNDER THIS
AGREEMENT. THE PROVISIONS OF THIS SECTION' 7 ALLOCATE RISKS UNDER THIS -
AGREEMENT BETWEEN CUSTOMER AND LICENSOR. LICENSOR'S PRICING REFLECTS THIS
ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. THE FOREGOING LIMITATIONS
WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF REMEDY
PROVIDED HEREIN. FOR PURPOSES OF THIS SECTION 7.5, (A) INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE RECOVERABLE PURSUANT TO
THIS AGREEMENT SHALL BE LIMITED TO COSTS, EXPENSES AND LIABILITIES INCURRED,
INCLUDING WITHOUT LIMITATION, JUDGMENTS, FINES, PENALTIES, ATTORNEYS' FEES
AND COSTS, AND COSTS OF MITIGATION AND (B) IN NO EVENT SHALL RECOVERABLE
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BE DEEMED TO
INCLUDE ANY AMOUNTS ATTRIBUTABLE TO LOST PROFITS, LOST REVENUE, BUSINESS
INTERRUPTION,LOSS OF USE OR LOST DATA.
Page 3 of 14
8. Indemnification.
8.1. Licensor Indemnification. Licensor shall indemnify, hold harmless and defend or settle any
claim (including reasonable attorneys' fees and costs), action or allegation brought against Customer as a
result of Licensor's material breach of this Agreement.
8.2. Customer Indemnification. Customer shall indemnify and hold harmless Licensor, its directors,
officers, managers, members, employees, contractors, agents, representatives, attorneys, successors and
assigns, from any claims, demands, losses, liabilities, costs and expenses (including reasonable attorneys'
fees,and,in any way,arising out of Customer's use of Software.
8.3. Indemnification Logistics. ;Each party's liabilities under this Section 8 are contingent upon the
other party("Notifying Party")providing prompt written notice to the other party("Notified Party")of any
such claim, action or allegation and gives that Notified Party the exclusive right to defend any such claim,
action or allegation and make settlements thereof at its own discretion so long as such settlement does not
adversely affect the Notifying Party, and the Notifying Party may not settle or compromise such claim,
action or allegation,except with prior written consent of the Notified Party. Notifying Party shall give such
assistance and information as Notified Party may reasonably require to settle or to oppose such claims.
9. Confidential Information.
9.1. Non-Use and Non-Disclosure. Customer acknowledges that the Confidential Information
constitutes valuable trade secrets and agrees that it shall use Confidential Information solely in accordance
with the provisions of this Agreement and will not disclose, or permit to be disclosed,the same,directly or
indirectly,to any third party without Licensor's prior written consent. Customer agrees to exercise due care
in protecting the Confidential Information from unauthorized use or disclosure. However, Customer does
not bear responsibility for safeguarding information that is publicly available, already in their possession
and not subject to a confidentiality obligation, obtained by the other party from third parties without
restrictions on disclosure, independently developed by themselves without reference to Confidential
Information,or to the extent required to be disclosed by order of a court or other governmental entity.
9,2. Remedy. In the event of actual or threatened breach of the provisions of Section 9.1 or 10.3 by
one party, the other party will have no adequate remedy at law and will be entitled to immediate and
injunctive and other equitable relief, without bond and without the necessity of showing actual money
damages. Exercise of the right to obtain injunctive and other equitable relief will not limit any rights to
seek further remedies.
10. Term and Termination.
10.1. Term. This Agreement shall commence on the Effective Date and continue for the period
described on Exhibit A or Al (the"Term").
10.2. Termination by Licensor. Licensor may, by written notice to Customer, terminate this
Agreement if any of the following events("Termination Events")occur:
10.2.1. Customer fails to pay any amount due Licensor within ten(10)calendar days after Licensor gives
Customer written notice of such nonpayment;
10.2.2. Customer is in material breach of any non-monetary term, condition or provision of this
Agreement, which breach, if capable of being cured, is not cured within thirty (30) calendar days after
Licensor gives Customer written notice of such breach;
10.2.3. Customer(a) terminates or suspends its business or (b)becomes insolvent, admits in writing its
inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes
subject to direct control of a trustee,receiver or similar authority,or(c)becomes subject to any bankruptcy
or insolvency proceeding under federal or state statutes;or
10.3. Effect of Termination. If any Termination Event occurs, termination will become effective
immediately or on the date set forth in the written notice of termination. Within thirty(30)calendar days
after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer
shall return the Software, if applicable, and all copies, in whole or in part, all Documentation relating
thereto, and any other Confidential Information in its possession that is in tangible form, and shall furnish
Page 4 of 14
Licensor with a certificate signed by.an executive officer of Customer verifying that the same has been
done. Within thirty(30)business days after any termination or expiration of this Agreement,Licensor shall
deliver a complete copy of all of Customer's data which is stored on any of Licensor's systems. Such data
shall be in.csv format.
10.4. Survival. The following provisions shall survive termination of this Agreement: Sections 1, 3, 5,
7,8,9, 10.3, 10.4,and 11.
11. Miscellaneous.
11.1. Assignment. Neither this Agreement nor any rights under this Agreement may.be assigned or
otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, without
the express prior written consent of Licensor. Notwithstanding the foregoing, either party may assign this
Agreement and all its rights and obligations under this Agreement in the event of a sale of such party,
whether by sale of all or substantially all of such party's assets or by merger,consolidation or the like,or a
change in control of such party. This Agreement will be binding upon and inure to the benefit of each of
the parties hereto, their respective legal successors and permitted assigns. Any assignment in violation of
the foregoing shall be void.
11.2. Notices. Any notice required or permitted under the terms of this Agreement or required by law
must be in writing and must be(a)delivered in person, (b)sent by fax to the recipient's fax number set forth
below its signature hereto, or (c) sent by overnight air courier, in each case properly posted and fully
prepaid to the address set forth below the recipient's signature hereto. Either party may change its address
for notice by notice to the other party given in accordance with this Section. Notices will be considered to
have been given at the time of actual delivery in person, upon confirmation of fax transmission or one(1)
business day after delivery to an overnight air courier service.
11.3. Force Majeure. Neither party will incur any liability to the other party on account of any loss or
damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or
failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without I
negligence of the parties. Such events,occurrences,or causes will include,without limitation,acts of God,
strikes,lockouts,riots,acts of war,earthquake, fire and explosions. A party's inability to meet its financial
obligations shall not constitute a force majeure event.
11.4. Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under
this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be
deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the
validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent
action.
11.5. Severability. If any term, condition, or provision in this Agreement is found to be invalid,
unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amend-
ments that will preserve,as far as possible,the intentions expressed in this Agreement. If the parties fail to
agree on such an amendment, such invalid term,condition or provision will be severed from the remaining
terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent
permitted by law.
11.6. Integration. This Agreement (including all the Exhibits attached hereto) contains the entire
agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous
communications, representations, under-standings and agreements, either oral or written, between the
parties with respect to said subject matter.This Agreement may not be amended,except by a writing signed
by both parties and specifically referencing the modified provisions of this Agreement.
11.7. Superseding Terms. No terms,provisions or conditions of any current or future purchase order,
sales order,acknowledgment or other business form that the parties may use in connection with the current
or future orders to license the Software will have any effect on the rights,duties or obligations of the parties
under, or otherwise modify, this Agreement,regardless of any failure of Licensor to object to such terms,
provisions or conditions.
Page 5 of l4
11.8. . Export. Customer may not-export or re-export the Software without the prior written consent of
Licensor and without the appropriate United States and foreign government licenses.
11.9. U.S. Government Restricted Rights. Software and accompanying Documentation have been
developed entirely at private expense. They are delivered and licensed as"commercial computer software"
as defined in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-
7014(Jun 1995),as a"commercial item"as defined in FAR 2.10T(a),or as"Restricted computer software"
as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause),
whichever is applicable. Customer has only those rights provided for Software and any accompanying
documentation by the applicable FAR or DFARS clause.
11.10. Governing Law. This Agreement will be interpreted and construed in accordance with the laws
of the State of California,without regard to conflict of law principles.
11.11. Attorneys Fees. In any dispute between the parties, the prevailing party shall be entitled to
recover its reasonable attorneys'fees and costs from the non-prevailing party.
11.12. Counterparts: This Agreement may be executed simultaneously in two or more counterparts,
each of.which will be.considered an original, but all of which together will constitute one and the same
instrument. This Agreement may be delivered by facsimile, and faxed signatures shall be deemed
originals.
11.13. Participating Public Agencies. The California Statewide Communities Development Authority
has designated the U.S. Communities Purchasing &Finance Agency("U.S. Communities")as the agency
to provide administrative services related to purchases by other governmental agencies ("Participating
Public Agencies")under this Agreement. Upon the Licensor entering into the requisite U.S.Communities.
Administration Agreement, Participating Public Agencies may acquire for their own use Iicenses listed in
this Agreement. Such acquisition(s)shall be at the prices stated in this Agreement or lower. The grant by
the Licensor of licenses to Participating Public Agencies shall be evidenced through the execution by the
licensor and each Participating Public Agency of a Supplemental Software,Fees,Users,Tenn Sheet in the
form of Exhibit At. In no event shall the California Statewide Communities Development Authority be
considered a dealer, remarketer, agent, or representative of the Licensor. The California Statewide
Communities Development Authority shall not be held liable for any costs, damages, etc. incurred by any
Participating Public Agency.
Page 6 of 14
IN WITNESS WHEREOF, duly authorized representatives of each of the parties has executed this
Agreement.
Licensor Customer
Title: '9 Title: ^
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Date: / /_7 Z� Date: (0 I A I �'
Address: y ,�C7- Address:
Fax: G 27 ZOO�7 Fax:
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Page 7 of 14
V
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C:,ran-minent Pttrih,r„r.;.,Salvin,i;Yin,hlmnaY
(rounding Co-Sponsors
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MASTER INTERGOVERNMENTAL COOPERATIVE PTIRCHASING AGREEMENT
This agreement is made between certain government agencies that execute a Lead Public Agency
Certificate("Lead Public Agencies")to be appended and made a part hereof and other government agencies
("Participating Public Agencies")that agree to terms and conditions hereof through U.S.Communities registration
to be appended and made a part hereof.
RECITALS
WHEREAS,after a competitive bidding and selection process by Lead Public Agencies,a number of Vendors
have entered into Master Agreements to provide a variety of goods,products and services based on national volumes j
(herein 'Products");
WHEREAS,Master Agreements are made available by Lead Public Agencies through U.S. Communities and
provide,that Participating Public Agencies may purchase Products on the same terms,conditions and pricing as the
Lead Public Agency, subject to any applicable local purchasing ordinances and the laws of the State of purchase;
WHEREAS,the parties desire to comply with the requirements and formalities of the Intergovernmental
Cooperation Act.as may be applicable to the laws of the State of purchase;
WHEREAS,the parties hereto desire to conserve resources and reduce procurement cost;
WHEREAS,the parties hereto desire to improve the efficiency,effectiveness and economy of the procurement of
necessary Products;
NOW,THEREFORE,in consideration of the mutual promises contained in this agreement,and of the mutual
benefit:;to result,the parties agree as follows:'
1.That each party will facilitate the cooperative procurement of Products.
2.That the procurement of Products subject,to this agreement shall be conducted in accordance with and subject to
the relevant statutes,ordinances,rules and regulations that govern each party's procurement practices.
3.That the cooperative use of aids obtained by a party to this agreement shall be in accordance with the terms and
conditions of the bid,except as modification of those terms and conditions is otherwise allowed or required by
applicable law.
4.That the Lead Public Agencies will make available,upon reasonable request and subject to convenience,
information which may assist in improving the effectiveness, efficiency and economy of Participating Public
Agencies procurement of Products.
S.That a procuring party will make tamely payments to the Vendor for Products received in accordance with the
terms and conditions of the procurement'.Payment for Products and inspections and acceptance of Products ordered
by the procuring party shall be the exclusive obligation of such procuring party.Disputes between procuring party and
Vendor are to be resolved in accord with the law and venue rules of the State of purchase.
6.The procuring party shall not use this agreement as a method for obtaining additional concessions or reduced
prices for similar products or services.
7.The procuring party shall be responsible for the ordering of Products under this agreement.A non-procuring
party shall not be liable in any fashion for any violation by a procuring party,and the procuring party shall hold non-
procuring party harmless from any liability that may arise from action or inaction of the procuring party.
8.The exercise of any rights or remedies.by the procuring party shall be the exclusive obligation of such procuring
party,
9.This agreement shall remain in effect until termination by a party giving 30 days written notice to U.S.
Communities at 2033 N. Main Street, Suite 700,Walnut Creek, CA 94596.
10.This agreement shall take effect after execution of the Lead Public Agency Certificate or Participating Public
Agency Registration,as applicable.
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMEW AUTHORITY
CERTIFICATE
I hereby acknowledge, on.behalf of the California Statewide Communities Development
Authority(the"Lead Public Agency"),that I have read and agree to the general terms and
conditions set forth in the enclosed Master Intergovernmental Cooperative Purchasing
Agreement ("MICPA") regulating the use of the Master Agreement and purchase of
products (in this case, licenses) that from time to time are made available by the Lead
Public Agency to Participating Public Agencies through U.S. Communities. Copies of
the Master Agreement and any amendments thereto made available by Lead Public
Agency will be provided. to Supplier and U.S. Communities to facilitate use by
Participating Public Agencies.
I understand that the purchase of one or more products (in this case, licenses) under the
provisions of the MICPA is at the sole and complete discretion of the Participating Public
Agency.
/✓i-rte! w ~-- ..
Authorized Signature,California Statewide
Communities Development Authority
Title
Date