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HomeMy WebLinkAboutYardi Systems Inc; 2018-05-10;AGREEMENT FOR IMPLEMENTATION AND TRAINING SERVICES YARDI SYSTEMS, INC. _ HIS AGREEMENT is made and entered into as of the /Ct/) day of / .. . , 2018, by and between the CITY OF CARLSBAD, a municipal corporatio , ("Cit , nd YARDI SYSTEMS, INC., a California corporation, ("Contractor''). RECITALS A. City requires professional services relating to the implementation of and training on Yardi's Voyager software program ("Implementation Services"). B. Contractor has the necessary experience in providing such Implementation Services. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, the Implementation Services that are more fully described and set forth in the Saas Subscription Agreement, attached hereto as Exhibit "A," ("Saas Agreement") which is incorporated by this reference and made part of this Agreement. 2. STANDARD OF PERFORMANCE While performing the Implementation Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement is set forth in section 3(a) (Term) of the Saas Agreement. 4. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term is as set forth in Schedule A to the Saas Agreement. 5. STATUS OF CONTRACTOR Contractor will perform the Implementation Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee City Attorney Approved Version 4/1 /15 of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide Implementation Services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement (as detailed in Schedule A of the Saas Agreement) will be the full and complete compensation to which Contractor is entitled. Except as otherwise provided in section 4(c) (Taxes) of the Saas Agreement, City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 6. SUBCONTRACTING Contractor will not subcontract any portion of the Implementation Services without prior written approval of City. If Contractor subcontracts any of the Implementation Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 7. INDEMNIFICATION Notwithstanding section 13 of the Saas Agreement, subject to the liability cap set forth in the Saas Agreement, Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all third party claims, damages, losses and expenses including attorney's fees arising out of death, bodily injury or damage to tangible property caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 8. INSURANCE Contractor will obtain and maintain the insurance coverage and with the limits described in section 19 (Insurance) of the Saas Agreement. City Attorney Approved Version 4/1/15 2 9. BUSINESS LICENSE If required, Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 10. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to invoicing records under this Agreement. All records will be clearly identifiable. Upon reasonable advance notice Contractor will allow a representative of City during normal business hours to reasonably examine, audit, and make transcripts or copies of such invoice records and any other related documents created pursuant to this Agreement. Contractor will allow inspection of all invoicing records and related documents that are prepared in connection with this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Sco:rr C.H P..t>W1 e.l( Title l7H1E:F cP--cRA,tO\JS OFF"ICd<. For Contractor (YJ / / (/ N_ame CJy~o r~o/llB L Title EVP -------------- Department Q, ·h-4 H ¢.k:'.)o9C:::R Address 430 S. Fairview Ave. City of Carlsbad Goleta, CA 93117 Address I lCD CM, «.:f3N;:, ,11 t..LA6E Phone No. _,__(8_0_5.,_) _69_9_-_2_04_0 ______ _ ~ CAC5LS&AD, CA -92018 Email &r,~oot'1 f\D~~(IL (!_ YP.P--oi. {oM Phone No. (]w)l..434 -252.1 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 12. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 13. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of directly applicable federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Implementation Services by Contractor. Contractor will at all times observe and comply with these directly applicable laws, ordinances, and regulations and City Attorney Approved Version 4/1/15 3 will be responsible for the compliance of Contractor's Implementation Services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 14. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 15. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Implementation Services the parties shall comply with the dispute resolution procedures set forth in section 17 (Mediation) of the Saas Agreement. 16. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Implementation Services, City may terminate this Agreement for nonperformance in accordance with section 3(c) (Termination for Cause) of the Saas Agreement. 17. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 18. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of City Attorney Approved Version 4/1/15 4 which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 19. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego or Santa Barbara, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 20. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 21. ENTIRE AGREEMENT This Agreement and the Saas Agreement, together with any other written document referred to or contemplated by such documents (including, by way of example, and attached schedules, attachments, or exhibits), embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Saas Agreement shall supersede and prevail over the conflicting term. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. II I II I II I City Attorney Approved Version 4/1115 5 22. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR By: (sign here) Gc,t.n :>/\ ~ tJ).~_\ \ I \z_ V p (print nameltitlb) By: (sign here) vv.., c~¥f:t\,( ~ Iv. \2\.z.NJ:::-.- (print name/title) { ATTEST: l ~~i~N~cE£ ntnl~~ City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: City Attorney Approved Version 4/1/15 6 i Carlsbad Terms and Conditions Yardi (011818) City Attorney Approved Version 4/1/15 7 EXHIBIT "A" SAAS SUBSCRIPTION AGREEMENT Yardi Systems, Inc., a California corporation headquartered at 430 South Fairview Avenue, Goleta, CA 93117 (''Yardi"), and City of Carlsbad ("Client") 1200 Carlsbad Village Drvie Carlsbad, CA 92008 enter into this agreement including any schedules, exhibits or other attachments (this "Agreement") effective as of the Effective Date [defined in section 1 (Definitions), below). RECITAL Yardi has developed certain application software for use by its clients in the real property and asset management industry. Yardi application software is available only in the Yardi Cloud [defined in section 1 (Definitions), below]. Client desires to access the Yardi Cloud to use such Yardi software pursuant to this Agreement's terms. In consideration of their respective rights and obligations as set forth in this Agreement, the parties agree as follows: AGREEMENT 1. Definitions. a. "Anniversary Date" means the date that is 365 days after the Initiation Date, and each anniversary thereafter of the date that is 365 days after the Initiation Date, during this Agreement's Term. b. "Business Purposes" means accessing the Yardi Cloud to use the Licensed Programs and Yardi Cloud Services for Client's property management and accounting, and related business pur- poses. c. "Client Data" means the data that Designated Users trans- mit and/or enter into the database provided as part of the Yardi Cloud in connection with their Use of the Licensed Programs pur- suant to this Agreement. d. "Contractor" means a contractor who: (i) has an Inde- pendent Consultant Network License Agreement with Yardi; and (ii) is a current member in good standing of Yardi's Independent Consultant Network. e. "Deliverable" means any deliverable or intellectual prop- erty delivered to Client as part of Programming Services [defined in section 14 (Programming Services)] or other services provided pursuant to this Agreement. f. "Designated User" or "DU" means a Client employee or Contractor designated by Client to access the Yardi Cloud and Use the Yardi Cloud Services and Licensed Programs for Business Pur- poses. g. "Effective Date" means the date of the last party signature on this Agreement. h. "Fees" means the fees identified in Schedule A (Fee Schedule), and any other fees that may become due under this Agreement. i. "Force Majeure Event" means any event beyond the rea- sonable control of the party affected by such event, including with- out 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 fail to perform under this Agreement. j. "Initiation Date" means the first day of the month immedi- ately following that date which is two weeks after the Effective Date. k. "Licensed Programs" means the software program(s) identified in Schedule A (Fee Schedule). I. "Licensed Programs Documentation" means the user manuals and documentation for the Licensed Programs. m. "Password" means the unique user name and password assigned by Client to each Designated User as more fully de- scribed in section 6 (Users and Passwords). n. "POC(s)" means the person(s) Client identifies to Yardi as point(s) of contact for application support services and other ac- count management purposes. o. "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 invoice. p. "Use" means authorized access to the licensed software in the Yardi Cloud and use of the Licensed Programs and Licensed Programs Documentation by Designated Users solely for Business Purposes. q. "Yardi Cloud" means the hardware, software, storage, fire- walls, intrusion detection devices, load balancing units, switches and other hardware that make up the Yardi Cloud. r. "Yardi Cloud Services" means installation, maintenance and service of the hardware and software comprising the Yardi Cloud. · 2. License Grant: Restrictions: Access to Yardi Cloud. a. Licenses. Yardi grants to Client a non-exclusive, non- transferable (except as expressly provided in this Agreement), lim- ited license for Designated Users to: (i) access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Services solely for Business Purposes; and (ii) access the Licensed Programs Docu- mentation and other content on Yardi's Client Central website solely for Business Purposes and subject to the terms of use then- presented on Client Central. 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 sublicense, assignment or other- wise except as expressly provided by this Agreement), time share, Page 1 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Licensed Programs. Client may only Use the Licensed Pro- grams for Business Purposes. Client may not reverse engineer, de- compile or otherwise attempt to discover the source code for the Licensed Programs. Client may not permit any person or entity to breach the restrictions in this section 2(b) (Restrictions). Client may not copy or re-create the Licensed Programs or its objects without Yardi's prior express written consent. Client agrees that the Li- censed Programs must remain at all times in the Yardi Cloud, and may not be removed or copied to any other location at any time. c. Access to the Yardi Cloud. Yardi will use commercially reasonable efforts to make the Yardi Cloud and the Licensed Pro- grams accessible to Designated Users 24-hours per day, 7 days per week, excluding down time for maintenance and repair. Yardi has standing maintenance/repair/backup hours from 11 :00 pm (lo- cal time at the data center) each day to 1 :00 am (local time at the data center) each succeeding day, and an additional 2 hours for the maintenance/repair/backup hours beginning at 11 :00 pm (local time at the data center) each Saturday night [i.e., the Saturday- night-to-Sunday-morning standing maintenance/repair/backup hours extend an extra 2 hours until 3:00 am (local time at the data center) each succeeding Sunday]. Yardi will use commercially rea- sonable efforts to provide as much notice to Client as reasonably possible under the circumstances for emergency maintenance/re- pair downtime outside the aforementioned standing hours. 3. Term and Termination. a. Term. This Agreement will commence on the Effective Date and shall remain in full force until Client's 3rd Anniversary Date (the "Initial Term") unless earlier terminated in accord with section 3(c) (Termination for Cause). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive 3- year terms (each a "Renewal Term") unless a party provides writ- ten notice of non-renewal at least 30 days prior to expiration of the then-current (Initial or Renewal) Term. The Initial Term and Re- newal Term(s) shall be collectively referred to as the "Term." b. Intentionally Omitted. 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 breach- ing party cannot reasonably cure the material breach within 7 days, the breaching party fails to initiate cure within 7 days and fails to continuously and diligently work to cure the breach until the breach is cured. Termination pursuant to this section 3(c) (Termination for Cause) shall be effective upon delivery of written notice after expi- ration of the applicable cure period. d. Effect of Termination. Upon the effective date of this Agreement's termination or expiration: (i) the license for the Li- censed Programs and Licensed Programs Documentation will ter- minate; (ii) Client will cease Use of the Yardi Cloud, Yardi Cloud Services, Licensed Programs and Licensed Programs Documen- tation; (iii) Client's access to the Yardi Cloud and Licensed Pro- grams will be disabled; and (iv) Client shall pay any Undisputed Fees to Yardi. e. Survival. The parties' obligations under, and the provisions of, sections 4 (License Fees), 8(b) (Limited Liability for Unauthor- ized Client Data Access), 9 (Confidentiality), 10 (Warranties), 11 (Damage Limitations), 13 (Indemnification), 15 (Assignment) and 18 (General Provisions) shall survive this Agreement's termination or expiration. 4. License Fees. a. Fees. Client agrees to pay Yardi the Fees in accordance with the payment terms set forth in Schedule A (Fee Schedule). b. Failure to Pay. Client's failure to timely pay any Undis- puted Fee when due is a material breach subject to the terms of section 3(c) (Termination for Cause). Additionally, Undisputed Fees shall accrue interest from their due date until paid at the rate of 1.5% per month or the maximum rate allowed under applicable law whichever is less. c. Taxes. The Fees are exclusive of any tariff, duty, or tax, however designated, levied, or based including, without limitation, any taxes based on: (i) this Agreement; (ii) the Licensed Programs, Yardi Cloud, Yardi Cloud Services, or Deliverables; (iii) Client's Use of the Yardi Cloud, Yardi Cloud Services, or Licensed Programs; (iv) the Licensed Programs Documentation; or (v) any materials or supplies furnished by Yardi per this Agreement. Client is responsi- ble for all applicable tariffs, duties or taxes (exclusive of taxes based on Yardi's net income) applicable to this Agreement. d. Partial Fee Disputes. If Client reasonably and in good faith disputes any Fees, and provides notice in accord with section 18(f) (Notices) of such dispute, Client agrees that any undisputed portion of such Fees are Undisputed Fees and Client agrees to timely pay any such Undisputed Fees. 5. Implementation and Training. a. Third Party Software and Hardware Requirements. Cli- ent is solely responsible for purchasing, installing and maintaining, at Client's expense, any third party software and hardware neces- sary for Designated Users to access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Services. Yardi shall not be liable for any such third party software or hardware, and Client acknowledges and agrees that any assistance 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 Party Software & Hardware Requirements). b. Location. Implementation and training services may (at Client's election) take place at a location specified by Client or via telecommunications. Yardi will bill Client for initial implementa- tion/training services as indicated in Schedule A (Fee Schedule). Client may request additional on-site implementation/training ser- vices (i.e., in addition to the on-site implementation/training ser- vices set forth in Schedule A (Fee Schedule)] at any time and Yardi will make commercially reasonable efforts to timely accommodate Client's request. Additional on-site implementation/training ser- vices are subject to the parties' mutual agreement on: (i) the sched- ule for performance of the additional services; and (ii) Yardi's Fees for the additional services. c. On-Sites. Client acknowledges that in-person implementa- tion/training service visits at a Client location require a minimum visit of 8 hours per visit. Client agrees to pay all reasonable ex- penses associated with on-site visits including, but not limited to, travel to and from the site, lodging, 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 implemen- tation/training services cancelled less than 10 business days prior to their scheduled date. d. Data Conversion. Yardi will bill Client for electronic data conversion services, if initially ordered, at the rate stated in Sched- ule A (Fee Schedule). Absent an agreement to the contrary, Client shall otherwise be solely responsible for data conversion, data preparation, data entry and data verification, and any post-conver- sion clean-up. Additional Yardi data conversion services (i.e., in ad- dition to any initial data conversion services set forth in Schedule A Page 2 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM (Fee Schedule)] are subject to the parties' mutual agreement on: (i) the schedule for performance of the additional services; and (ii) Yardi's Fees for the additional services. e. Testing. Client shall have 90 days commencing upon the Effective Date (the ''Testing Period") to test the Licensed Pro- grams, Yardi Cloud and Yardi Cloud Services. At any time during the Testing Period, Client may elect to cease Use of the Licensed Programs, Yardi Cloud and Yardi Cloud Services and cancel this Agreement, in which event Yardi will refund to Client all amounts paid by Client to Yardi pursuant to this Agreement less reasonable amounts (determined by reference to the Fees/rates indicated in Schedule A (Fee Schedule)] for initial set-up, implementation, train- ing and support of the Licensed Programs, Yardi Cloud and Yardi Cloud Services provided prior to Client's notice of cancellation pur- suant to this section 5(e) (Testing). 6. Users and Passwords. a. Designated Users. Client agrees that its exercise of the license granted by this Agreement shall only be through its Desig- nated Users. Client's license to access and Use the Yardi Cloud and Licensed Programs is limited as provided in Schedule A (Fee Schedule). Each Designated User must have a unique Password. b. Password Assignment Client's application support POC(s) will be Designated Users, will designate the other Desig- nated Users, and will provide each other Designated User with a Password. Each Password shall be personal and unique to the ap- plicable 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. c. Client Obligations with Respect to Designated Users. Client shall inform each Designated User of this Agreement's terms and restrictions and shall enforce such restrictions. Client agrees to notify Yardi if Client becomes aware of any failure of a Desig- nated User to adhere to the license terms and restrictions in this Agreement. 7. Application Support & Upgrades. a. Application Support Service. Yardi will provide applica- tion support and upgrades for the Licensed Programs as set forth in this section 7 (Application Sopport & Upgrades). b. Client Contacts. Client agrees to appoint application sup- port POC(s). Client may change the application support POC(s) upon advance written notice to Yardi. Yardi shall have no obligation to contact, or communicate with, anyone regarding application sup- port and maintenance issues except Client's application support POC(s). Client acknowledges that it is Client's responsibility to keep Client's application support POC(s) current, and to notify Yardi of any changes. c. Yardi Contacts. During initial implementation, Yardi shall appoint an account manager to Client's account. After initial imple- mentation, Yardi will either assign Client to an account manager or an application support team. Yardi may change the identity of indi- vidual account managers from time to time upon notice to Client. Client's application support records relating to Client will be availa- ble to Yardi's entire application support team at all times. d. Application Support Services. Yardi shall provide appli- cation support for the Licensed Programs through its account man- agers and technical staff to Client's application support POC(s). Application support does not include on-site installation, implemen- tation, training, or testing of the Licensed Programs, nor does it in- clude data conversion. Those services, if initially ordered, are spec- ified in Schedule A (Fee Schedule). Yardi's application support ser- vice team will use commercially reasonable efforts to address and solve Client's issues but cannot guarantee satisfaction in every case. e. Total Hours Included. Client's annual application support allotment is specified in Schedule B. f. Application Support Hours. Yardi's application support hours are from 6:00 am to 5:00 pm (Pacific Time) Monday through Friday (excluding holidays). g. Priority. (i) Yardi shall have the right to prioritize application support requests according to the application support issue's impact on Cli- ent. Yardi will prioritize application support requests in the following order: Priority 1 : Business halted (total inability to perform normal opera- tion) • Client will submit support requests by telephone to Y ardi's application support number. • Response as rapid as reasonably feasible -generally within 2 business hours. Priority 2: Business impacted (severe restriction of Client's Use of the Licensed Programs - a potentially critical problem) • Client will submit support requests by telephone to Yardi's application support number. • Prompt response subject only to delays for priority 1 is- sues, generally within 4 business hours. Priority 3: Non-critical service requests (any issue that is not a Pri- ority 1 or Priority 2 issue) • Client will submit support request by telecommunications to Yardi application support. • Response subject to delays for priority 1 and 2 issues, generally within 1 business day. (ii) Yardi will work on Priority 1 and 2 issues with continuous focus, and with Client's cooperation, through resolution. h. Standard Term. Application support services are subject to this Agreement's terms and timely payment of all Undisputed Fees. Subject to the section 3(c) (Termination for Cause) notice and cure provisions, Yardi may suspend application support ser- vices if Client fails to timely make any Undisputed Fee payment. i. Obsolescence. Yardi reserves the right to cease providing application support services for the Licensed Programs on the later of: (i) 3 years from the date on which Yardi ceases to license the Licensed Programs; or (ii) 5 years from the Effective Date. Yardi agrees to notify Client if and when Yardi will cease application sup- port services in accord with this section 7(i) (Obsolescence). 8. Client Data. a. Client Data Storage. Subject to Force Majeure Events, Yardi agrees to store Client Data on a virtual database server in the Yardi Cloud. b. Limited Liability for Unauthorized Client Data Access. Yardi agrees to use: (i) firewalls and other technology generally used in the trade to prevent unauthorized 3rd party access to its computer systems storing Client Data; and (ii) encryption technol- ogy generally used in the trade to prevent unauthorized 3rd party access to Client Data transmissions. Notwithstanding the forego- ing, 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 fails to Page 3 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM prevent unauthorized third party access to Client Data transmis- sions. For the avoidance of doubt, if Yardi is negligent in its obliga- tion to use (X) firewalls and other technology generally used in the trade or business, or (Y) available encryption technology generally used in the trade or business, then, to the extent Yard i's negligence results in an unauthorized 3n1 party access to Client Data or Client Data transmissions, Yardi's liability shall be subject to the liability limitations in section 11(b) (Liability Limit). Nothing in this section 8(b) (Limited Liability for Unauthorized Client Data Access) shall constitute a representation or warranty by Yardi that Client Data storage or transmission will be inaccessible to unauthorized third parties. c. SSAE16 Audits. During the term of this Agreement, and so long as SSAE16 remains a current and industry standard audit- ing standard, Yardi agrees to annually undertake an audit in accord with the American Institute of Certified Public Accountants' State- ment on Standards for Attestation Engagements No. 16 or a suc- cessor standard ("SSAE16") with respect to Yardi Cloud Ser- vices. Upon Client's request, and no more than annually, Yardi agrees to provide a copy of its then-current SSAE16 audit report for Client's review. d. PCI DSS Audits. During the term of this Agreement, and so long as the Payment Card Industry ("PCI") Data Security Stand- ard ("DSS") remains a current and industry standard auditing standard, Yardi agrees to annually undertake a PCI DSS assess- ment with respect to Yardi's payment card processor functionality. Upon Client's request, and no more than annually, Yardi agrees to provide a copy of its then-current PCI DSS Attestation of Compli- ance for Onsite Assessments -Merchants ("AOC") for Client's re- view. Client agrees that the PCI DSS AOC shall be confidential in- formation and subject to Client's confidentiality obligations as set forth in section 9 (Confidentiality) of this Agreement. 9. Confidentiality. a. Confidential Information Definition. "Confidential Infor- mation" means all technical and non-technical information includ- ing: (i) Client Data; (ii) patent, copyright, trade secret, and other proprietary information; (iii) inventions, know-how, processes, or al- gorithms; (iv) software programs, software source documents, ob- ject code, source code, database dictionaries, network diagrams, UML diagrams, Licensed Programs, Licensed Programs Docu- mentation, Licensed Programs schema, Licensed Programs func- tions, Licensed Programs user interface screens, SSIS, data ware- house schema, cube specifications and configuration, the reports generated by the Licensed Programs, Yardi Cloud specifications and configuration, Yardi Cloud hardware specifications and config- uration, and Yardi Cloud Services; (v) development, design details and specifications; (vi) a party's financial information; (vii) customer lists, business forecasts, sales and marketing plans and infor- mation; (viii) the prices offered or paid per this Agreement for Yardi's products and services; (ix) SSAE16 audit reports and PCI DSS attestations of compliance and any information related to SSAE16 audit reports and/or PCI DSS attestations of compliance; (x) this Agreement's terms; and (xi) any other information disclosed by a party, or to which a party is exposed because of this Agree- ment, that the disclosing party identifies as confidential at the time of disclosure or which -by its nature -reasonably should be re- garded as confidential. b. Nondisclosure and Nonuse Obligations. Each party (the "Receiving Party") agrees that it will not disseminate, distribute, expose, or in any way disclose any Confidential Information of the other party (the "Disclosing Party") to any third party. The Receiv- ing Party may use the Disclosing Party's Confidential Information to the extent necessary to perform its obligations under this Agree- ment. The Receiving Party's employees and Contractors may use Confidential Information only for the specific business purpose for which it was made available and not for any other purpose. The Receiving Party's employees and Contractors may not use Confi- dential Information in any way that may compete with Disclosing Party. The Receiving Party may not disclose Confidential Infor- mation to its employees and Contractors for the purpose of ena- bling any such employees or Contractors to service, maintain, or modify the Licensed Programs. 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 infor- mation, and the Receiving Party certifies that such employees and Contractors have previously agreed, either as a condition to em- ployment or in order to obtain the Confidential 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 Disclosing Party of any unauthorized use or disclosure of the Disclosing 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 Confidential Information. c. Exclusions from Nondisclosure and Nonuse Obliga- tions. The Receiving Party's obligations per section 9(b) (Nondis- closure and Nonuse Obligations) shall not apply to Confidential In- formation that the Receiving Party can document: (i) was (through no fault of the Receiving Party) in the public domain at or subse- quent to the time the Disclosing Party disclosed the information to the Receiving Party; (ii) was rightfully in the Receiving Party's pos- session free of any confidentiality obligation at or subsequent to the time the Disclosing Party disclosed it to the Receiving Party; or (iii) was developed by the Receiving Party's employees or agents independent of, and without reference to, any information commu- nicated to the Receiving Party by the Disclosing Party. A Confiden- tial Information disclosure by the Receiving Party either: (A) in re- sponse to an enforceable order by a court or other governmental body; (B) as otherwise required by law; or (C) necessary to estab- lish the rights of either party under this Agreement, shall not be a breach of this Agreement by the Receiving Party or a waiver of confidentiality for other purposes; provided, however, the Receiv- ing Party shall provide prompt prior written notice of any such Con- fidential 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 prevent such disclosure. d. Ownership and Return of Confidential Information. The Disclosing Party's Confidential 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 Confiden- tial Information except as expressly set forth in this Agreement. Within 5 business days after the Disclosing Party's request, the Re- ceiving Party will promptly either (at the Disclosing Party's election) destroy or deliver to the Disclosing Party all Confidential Infor- mation furnished to the Receiving Party, and the Receiving Party agrees to provide a written officer's certification of the Receiving Party's compliance with the foregoing obligation. e. Third Party Information Disclosure. The Disclosing Party shall not communicate any information to the Receiving Party in violation of the proprietary rights of any third party. 10. Warranties. a. Limited Software Warranty. Yardi warrants that the Li- censed Programs will perform substantially as specified in the Li- censed Programs Documentation. Yardi does not warrant that the Licensed Programs will meet Client's requirements and expecta- tions. b. Remedy for Limited Software Warranty Breach. If Yardi breaches the warranty set forth in section 10(a) (Limited Software Page 4 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM Warranty), Yardi agrees to use commercially reasonable efforts to modify the Licensed Programs so that the Licensed Programs con- form to that warranty. If such modification is not commercially rea- sonable, then Yardi will notify Client and Client may terminate this Agreement. In the event Client terminates this Agreement per this section 10(b) (Remedy for Limited Software Warranty Breach), Yardi will refund to Client, on a pro-rata basis, the annual Fees paid by Client to Yardi within the year prior to the effective date of Cli- ent's termination. THE FOREGOING REMEDY IS CLIENT'S SOLE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN SECTION 10(a) (Limited Software Warranty). c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE LICENSED PROGRAMS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PUR- POSE. d. Internet Performance Disclaimer. Yardi does not and cannot control the flow of data via the internet. Such flow 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. Yardi will use com- mercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur. Accordingly, Yardi disclaims any liability resulting from or relating to such events. 11. Damage Limitations. a. Damage Waiver. REGARDLESS OF ANY OTHER PRO- VISION IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YARDI DISCLAIMS ALL OB- LIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCI- DENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS' AND EXPERTS' FEES, AND COURT COSTS (EVEN IF YARDI HAS BEEN ADVISED OF THE POSSI- BILITY OF THESE DAMAGES), ARISING FROM OR IN CON- NECTION WITH THIS AGREEMENT. b. Liability Limit. IN ADDITION TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, CLIENT AGREES THAT IN THE EVENT OF ANY CLAIM OR CAUSE OF ACTION BY CLIENT ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, YARDl'S MAXIMUM LIABILITY TO CLIENT, REGARDLESS OF THE AMOUNT OF LOSS CLIENT MAY HAVE SUFFERED, SHALL NOT EXCEED THE FEES PAID BY CLIENT TO YARDI PURSUANT TO THIS AGREEMENT WITHIN THE YEAR PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. 12. Ownership. a. Yardi's Ownership. Client agrees that, as between Yardi and Client, Yardi is and shall remain the sole and exclusive owner of all right, title and interest in and to the Licensed Programs, De- liverables, Yardi Cloud, Yardi Cloud Services, and Licensed Pro- grams Documentation, and to all intellectual property rights in the foregoing. The only rights Client obtains in the Licensed Programs, Deliverables, Yardi Cloud, Yardi Cloud Services, and Licensed Programs Documentation are the licenses expressly granted to Cli- ent in this Agreement. b. Client's Ownership. Yardi 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. 13. Indemnification. a. Indemnity. Yardi agrees to defend, indemnify and hold Cli- ent harmless from and against any third party claims, actions or demands alleging that Client's Use of the Yardi Cloud, Yardi Cloud Services, Licensed Programs, Licensed Programs Documentation, and Deliverables in accordance with this Agreement's terms in- fringes on a third party's proprietary information, trademark, copy- right, patent rights or intellectual property rights, or misappropriates a third party's trade secrets. b. Indemnity Conditions. Yardi's defense and indemnifica- tion obligation per section 13(a) (Indemnity) is conditioned upon the following: (i) Client providing Yardi with prompt written notice of any claim for which indemnification is sought; (ii) Yardi having sole con- trol of the defense and settlement of such claim, provided, how- ever, that Client shall have the right to have any suit or proceeding monitored by counsel of Client's choice and at its expense; and (iii) Client's reasonable cooperation with Yardi in the defense and set- tlement 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 results -or is reasonably likely to result -in an injunction against Client's continued Use of the Licensed Programs, Yardi will: (i) replace or modify the Li- censed Programs to avoid the misappropriation/infringement claim; (ii) secure Client's right to continue Use of the Licensed Programs; or (iii) if neither (i) or (ii) is commercially practicable, either party may terminate this Agreement upon written notice to the other party. 14. Programming Services. a. Programming Services. Yardi provides programming ser- vices including, without limitation, database customizations, user interface customizations, database reports, database scripts and other programming services (collectively, "Programming Ser- vices"). b. Programming Services Terms. The Fees for Program- ming Services, if initially ordered, are set forth in Schedule A (Fee Schedule). Client will otherwise initiate Programming Service re- quests 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 acceptance of: (i) Yardi's schedule for meeting Client's Programming Service request; and (ii) Yardi's Fees for such Programming Services. c. Deliverables License. Subject to Client's full payment of all Undisputed Fees related to Programming Services, Yardi grants to Client a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited license for Designated Users to Use the Deliverables in connection with their Use of the Licensed Programs, Yardi Cloud and Yardi Cloud Services. 15. Assignment. a. Assignment Limitation. Except for the exceptions speci- fied in section 15(b) (the "Permitted Exceptions"), Client shall not (either directly or indirectly) assign, sell, convey, pledge, or other- wise transfer this Agreement without first obtaining Yardi's express written consent, which Yardi shall not unreasonably withhold. Ex- cept for the Permitted Exceptions, any attempted assignment made without Yardi's prior express written consent is void and a material breach of this Agreement. b. Permitted Exceptions. Subject to the conditions prece- dent set forth in this section 15(b) (Permitted Exceptions), Client may assign this Agreement without Yardi's prior consent and upon notice: (i) to a wholly owned subsidiary; or (ii) in connection with Page 5 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM any merger, acquisition, or reorganization involving Client. Any as- signment is subject to the following conditions: (A) Client, or Cli- ent's successor, continuing in the same type of business that Client was conducting at the time of this Agreement's execution; and (B) Client or Client's successor providing to Yardi a written ratification and assumption of this Agreement (in a form reasonably satisfac- tory to Yardi) concurrent with the assignment. 16. Outsourcing. a. Server Location. Yardi reserves the right to locate the vir- tual servers and other equipment needed to provide the Yardi Cloud either at its facilities or at the facilities of independent service providers. Yardi may change the location of the virtual servers and other equipment needed to provide the Yardi Cloud at any time during this Agreement's Term; provided that any such change of location shall not affect Yardi's obligations under this Agreement and shall not interrupt Client's access to the Yardi Cloud, Client Data, and Licensed Programs. Notwithstanding the generalities of the foregoing, Yardi will (i) upon request, disclose the location of the primary data center hosting Client Data, and (ii) not change the location of the data centers hosting Client Data outside of the United States unless otherwise agreed by both parties. 17. Mediation. a. Mediation Request; Condition Precedent In the event of a dispute arising out of or related to this Agreement which the par- ties are unable to resolve through direct negotiation, either party may serve upon the other at its principal place of business a re- quest 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. b. Mediation Process. The parties will select a neutral, inde- pendent mediator with experience in the relevant subject matter by the rules of the office of the Judicial Arbitration and Mediation Ser- vice (JAMS) closest to the mediation venue. The parties shall con- duct the mediation not less than 10 or more than 20 days from the date the party requesting mediation gives notice of the request for mediation to the other party. The parties shall conduct the media- tion in Santa Barbara, California. The parties shall equally bear the mediation costs. c. Mediation Confidentiality. The parties shall maintain 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 confidentiality provisions of California Evidence Code sections 1115 -1128 shall apply to the mediation proceedings. d. Mediation Statements; Attendee Authority. At least 5 days before the date of the mediation, each party shall provide the mediator and the other party with a statement of its position and copies of supporting documents. Each party shall send to the me- diation a person who has authority to bind the party. e. Non-Binding. If a party participates in good faith in a me- diation 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. General Provisjons. 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 Agree- ment shall have any express or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agreement, or 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 Cali- fornia as such laws are applied to agreements made and per- formed 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 juris- diction in the City of Santa Barbara, State of California (or the court of competent jurisdiction closest to the City of Santa Barbara, CA if no court of competent jurisdiction resides in the City of Santa Bar- bara, 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 else- where. d. Injunctive Relief. (i) Yardi Injunctive Relief. The parties acknowledge and agree that, if Client breaches any of its obligations under sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality) or 15 (As- signment), Yardi might incur irreparable harm and damage that might not be fully compensated with monetary damages. Accord- ingly, if Client breaches any provision of sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality), or 15 (Assignment) Yardi may seek specific performance of Client's obligations under those sections and injunctive relief against any further violations of those sections. (ii) Client Injunctive Relief. The parties acknowledge and agree that, if Yardi breaches any of its obligations under section 9 (Confidentiality) Client might incur irreparable harm and damage that might not be fully compensated with monetary damages. Ac- cordingly, if Yardi breaches any provision of section 9 (Confidenti- ality) Client may seek specific performance of Yardi's obligations under that section and injunctive relief against any further violations of that section. e. Binding Effect This Agreement is binding on and inures to the benefit of the parties and their permitted assigns, succes- sors, and legal representatives. f. Notices. (i) The parties shall deliver any notice required by this Agreement by personal delivery, certified U.S. Mail return receipt requested, or established, reputable expedited delivery carrier providing proof of delivery service, and will be deemed given upon confirmed delivery to the party to whom it is intended at its record address. The record addresses of the parties are set forth below. (ii) If to Client: Attn: Bobbi Nunn CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 (iii) If to Yardi: Attn: Chief Operating Officer YARDI SYSTEMS, INC. 430 S. Fairview Ave. Goleta, CA 93117 With a copy to: Attn: Legal Department YARDI SYSTEMS, INC. 430 S. Fairview Ave. Goleta, CA 93117 Page 6 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM (iv) Either party may change its record address by giving written notice of such change to the other party. g. Waiver. The waiver of a party's breach of this Agreement shall not operate or be construed as a waiver of any other or sub- sequent breach. h. Severability. If a court or other body of competent jurisdic- tion determines that any part of this Agreement is unenforceable, the remainder of this Agreement shall nevertheless remain en- forceable. i. Headings. This Agreement's section headings and cap- tions are inserted for convenience only and are not intended to form a material part of this Agreement. j. Data Use. Yardi may aggregate, compile, and use Client Data in order to improve, develop or enhance the Licensed Pro- grams and/or other services offered, or to be offered, by Yardi; pro- vided that no Client Data is identifiable as originating from, or can be traced back to, Client or a Client customer, tenant or resident in such aggregated form. k. Entire Agreement This Agreement constitutes the final, complete, and exclusive statement of the agreement between the parties pertaining to this Agreement's subject matter and super- sedes all prior and contemporaneous understandings or agree- ments of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty except those inducements, representations and warran- ties expressly set forth in this Agreement. I. Non-Solicit/Non-Hire. The parties agree not to solicit (other than a general solicitation to the public) the employment 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. m. Modification. The parties may only modify or amend this Agreement by a writing signed by both parties; provided, however, that Client may increase Client's licensed Designated User, prop- erty, unit, etc. count (as applicable) by delivering to Yardi a signed copy of Yardi's standard, approved form for such changes. n. Force Majeure. Neither party shall be liable under this Agreement for failure or delay in performance caused by a Force Majeure Event. If a Force Majeure Event occurs, the party affected shall use commercially reasonable efforts to resume the perfor- mance excused by the Force Majeure Event. o. Right to Audit and Compliance. In accordance with Yardi's obligations to credit bureaus, credit reporting agencies, and including Yardi's obligation to help prevent and detect potentially fraudulent and/or suspicious activity, Client acknowledges and agrees that Yardi may conduct random as well as regular monitor- ing of users' access to and use of the Yardi Cloud and Licensed Programs as they relate to this Agreement in order to validate that users are accessing and using the Yardi Cloud and Licensed Pro- grams for legitimate purposes and in accord this Agreement. Addi- tionally, pursuant to any obligations Yardi has, or may have, under any laws or regulations concerning the prevention of identity theft, financial fraud, money laundering, terrorist financing, etc., Client agrees to comply with any standard Yardi "know-your-client" re- quirements, processes, and/or procedures. p. 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 5 days of electronic transmission; however, the failure to provide the original counterpart shall have no effect on this Agreement's enforceability or binding nature. If executed in counterparts, this Agreement will be as effective as if simultaneously executed. 19. Insurance. a. Coverage. Yardi shall, at its own expense, obtain and maintain throughout the duration of this Agreement the following insurance: (i) commercial general liability insurance in an amount not less than $1,000,000 each occurrence, $2,000,000 general aggre- gate (and including: (A) personal and advertising injury coverage in an amount not less than $1,000,000 each occurrence, and (B) products -completed operations coverage in an amount not less than $1,000,000 each occurrence); (ii) automobile liability insurance (any auto) in an amount not less than $1,000,000 combined single limit (each accident); (iii) workers compensation insurance in an amount not less than applicable statutory limits; (iv) employers' liability insurance in an amount not less than $1,000,000 each accident, $1,000,000 disease each employee, and $1,000,000 disease policy limit; (v) professional liability coverage on a claims made basis (including cyber liability) in an amount not less than $5,000,000 each claim, $5,000,000 aggregate; and b. Additional Insured Endorsement. Upon Client's request, Yardi agrees to have Client named as an additional insured on Yardi's commercial general liability and automobile liability insur- ance policies. c. Certifica Upon Client's request after the Effective Date, Yardi agrees t ro ide Certificates of Insurance evidencing the coverage spe 1fied i subsections (a)(i)-(v). CITY OF CA By: Date: Print Name: Title: By: Date: Print Name: Title: Rev. 040116 Michael Remorenko Director Page 7 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM License Voyager PHA Property Management Voyager PHA Property Management Inspector General RENTCafe PHA Applicant Portal RENTCafe PHA Landlord Portal RENTCafe PHA Online Applications Portal Service On-Site Implementation/Training Application Support Hours Application Support Hours Conversion Services: Custom Conversion Concession SCHEDULE A Fee Schedule Voyager Saas Select Annual F- Unit of Measure (UOM) Count Unit 650 Unit 75 Unit 650 Unit 650 Unit 650 Unit 650 One-Time Fees UOM Count hour 80 hour 100 hour 50 each One-Time Concessions Total Prorated Credit for Fees Paid for the period April 8, 2018 to November 7, 2018 Annual Fee One-Time Fee Prorated Credit Sub-Total Sales Tax Total Fees Due Additional Tenns $/UOM $20.00 $20.00 $2.00 $10.00 $10.00 $10.00 $/UOM $175.00 $120.00 $120.00 $5,000.00 PAYMENT TERMS (excluding applicable taxes): 100% payable upon execution of this Agreement. Client may change the licensed Unit count with a minimum increase/decrease of 25 Units. $/UOM Concession ($8.00) ($20.00) ($2.00) ($5.00) ($5.00) ($5.00) Yardi Pin#: 100052055 YardiOrder#:110292 Net $/UOM Total Price $12.00 $7,800.00 $0.00 $0.00 $0.00 $0.00 $5.00 $3,250.00 $5.00 $3,250.00 $5.00 $3,250.00 Total Annual Fee $17,550.00 $/UOM Net Concession $/UOM Total Price $0.00 $175.00 $14,000.00 ($20.00) $100.00 $10,000.00 ($120.00) $0.00 $0.00 ($2,500.00) $2,500.00 $2,500.00 Total One-Time Fee $26,600.00 Total Concession Price ($7,751.13) $17,550.00 $26,500.00 ($7,751.13) $36,298.87 as applicable Total Due $36,298.87 Additional terms are set forth in Schedules B (Yardi Saas Subscription Services and Governance Schedule) and C (Adcjitional Terms) to this Agreement. - Client's total Annual Fee is subject to increase on each Anniversary Date; such increases shall not exceed the percentage increase in the U.S. Department of Labor, Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W): U.S. City Average for the preceding year. Page 8 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM SCHEDULE B Yardi Saas Subscription Services and Governance Schedule Server Management Yardi will provide server management for Yardi Cloud servers running the Licensed Programs per the following guidelines: 1. All Yardi Cloud servers are virtualized; 2. Yardi will allocate to Client the resources required to maintain and deliver the Licensed Programs in accord with the tenns of para- graphs 2 (Data and File Management) and 4 (Licensed Programs Support and Governance of Use) below; 3. All production servers are configured for high availability with redundancy within the Yardi Cloud; 4. Non-production servers are not configured for high availability; 5. Yardi will provide the following managed services as they relate to the Yardi Cloud: a. Installation, maintenance (Microsoft patches and upgrades) and licensing of Microsoft Operating System; b. Installation, maintenance (Microsoft patches and upgrades) and licensing of Microsoft SQL Server; c. Installation, maintenance (Yardi patches and upgrades) for the Licensed Programs; d. Installation, maintenance (vendor patches and upgrades) and licensing of security and anti-virus software; e. Installation, maintenance (vendor patches and upgrades) and licensing of monitoring software; and 6. Yardi reserves the right to upgrade the Yardi Cloud (both the physical and virtual aspects) upon notice to Client where, in Yardi's reasonable discretion, the upgrade is necessary to keep the Yardi Cloud secure and technically industry standard. Data and File Management Yardi will provide data and file management services per the following guidelines. 1. Yardi will provide Client one live and one test database for the Licensed Programs. 2. Yardi will provide up to 1TB of Combined Storage (defined below) at no additional charge. Client may purchase additional Combined Storage at Yardi's then-current prevailing rate at the time of Client's request. "Combined Storage" means: a. Client Data file storage on file servers; and b. Client Data storage held within database servers and utilized by the Licensed Programs. 3. Production database backup files will be maintained for 14 days on a server accessible by Client via secure transfer server from which Client may retrieve the database backups at any time; and. 4. Production data will be replicated in near-real-time both locally within the production data center, as well as to a separate, off-site disaster recovery location. Client Access Yardi will allow Client access to the Yardi Cloud via the following methods. 1. Via Internet URL to access and operate the Licensed Programs. 2. Via remote access the following, depending on operating requirements: a. The Licensed Programs' reports path for management of the Licensed Programs support files; b. A database-level query tool; c. Client-server-based system administration tools provided by Yardi. Licensed Programs Support and Governance of Use Yardi will provide consulting and technical support for the Licensed Programs per the following guidelines. 1. Implementation, consulting and support of the Licensed Programs and the Licensed Programs' deployed components, where appli- cable; 2. 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 improvements. Client reserves the right to refuse updates and up- grades of the Licensed Programs; provided, however, that Yardi reserves the right to cease application support services for versions of the Licensed Programs more than 2 years older than the latest version of the Licensed Programs generally released to Yardi's clients. Annual Fees Include Client's annual Fees include access to the Yardi Cloud, Licensed Programs, Licensed Programs updates/upgrades, and one application support hour per $1,000.00 of Client's annual Fees. Clients installing Voyager for the first time shall receive 25 additional application support hours for the first year only (i.e., until Client's first Anniversary Date) at no additional charge. Yardi will debit all application support services (in ¼-hour increments with a ¼-hour minimum) against Client's above-noted application support allotment except when related to a Software Error. "Soft- ware Error" means a reproducible failure of the Licensed Programs to materially perfonn as specified in the Licensed Programs Documentation. Client acknowledges that data preparation and post conversion data clean-up is inherent in any data conversion, and such additional efforts associated with a Client data conversion -if perfonned by Yardi -will be debited against Client's application support service allotment. Notwith- standing the multi-year Tenn set forth in the Agreement, Client's annual Fees and included annual application support allotment apply for annual periods ending on each Anniversary Date, and shall not include unused application support time from prior annual periods. If Client needs additional application support hours at any time, Client may purchase additional hours at Yardi's then-current prevailing application support rate at the time Client needs the hours. Page 9 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM SCHEDULEC Additional Terms Product Terms: 1. Voyager Property Management includes Accounting, Property Management, Maintenance/I.Nork Orders a. PHA Property Management includes Inspections, Fixed Assets, Construction 2. RENTCafe PHA Applicant Portal, RENTCafe PHA Landlord Portal, and RENTCafe PHA Online Applications Portal: Includes access to Yardi standard workflows and library of existing forms. Additional workflows or custom forms may be available at an addi- tional fee upon Client's request. With respect to any content or trademarks provided by Client for use in connection with Client's Use of Yardi RENTCafe Portal, Client represents that Client has all necessary right, title, and/or interest in and to any such content or trademarks, and agrees to defend, indemnify and hold Yardi harmless from and against any claims, damages or losses resulting from a beach of the foregoing warranty. Client agrees to the RENTCafe Agreement for Property Managers and Owners ("Terms of Use"), and the RENTCafe Privacy Policy ("Privacy Policy"), both posted on www.rentcafe.com, and as the Terms of Use and Privacy Policy may be modified by Yardi from time to time. 3. Walk-In Rent Collection/Rent Payment Services (WIPS™): a. Client acknowledges and agrees to pay all fees and other charges, including any statement, service, chargeback, applica- tion, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client's Transactions. b. Client acknowledges and agrees that it must do one of the following: (i) utilize a banking institution that is supported by Yardi; (ii) secure the agreement of Client's banking institution to work with Yardi in interfacing WIPS with Client's banking institution (in which case reasonable time will be necessary to complete the interface in light of the interface requirements); or (iii) sign-up for, and utilize, ProfitStars' banking institution processing services. c. Client acknowledges and understands that CheckFreePay is a third party vendor and licensed money transmitter and is solely responsible for its network of agents (the "Agents"). Client further acknowledges and understands that among various other unrelated business transactions: (i) Agents accept cash-only rent payments from WIPS tenants in exchange for a nominal convenience fee (for purposes of this Agreement, each cash payment remitted by a tenant through WIPS, less the Agent's convenience fee, is referred to as a "Payment"); and (ii) Yardi does not collect rent directly from any tenant through WIPS and has no control over the Agents or CheckFreePay's Agent network. d. Client acknowledges and understands that the tenant, not the Agent, determines how much rent to pay using WIPS. Be- cause the Agent will accept whatever cash sum the tenant desires to pay and will charge a convenience fee each time a payment is made, the Payment(s) made by a tenant to the Agent may be less than, equal to, or greater than the total rent due. Accordingly, Client acknowledges and understands that the rent payment subsequently reflected in Voyager and ulti- mately credited to Client's account may be an under-or over-payment of the tenant's rent. Except to the extent such under- or over-payment is caused solely by Yardi's negligence or willful misconduct, Client expressly acknowledges and agrees that the payment of rent is a matter between Client and tenant and Client agrees to defend, indemnify and hold Yardi harmless from and against any third party (including tenant) claims relating to or arising out of the use ofWIPS. e. Typically, Voyager will reflect each Payment within 1 business day and each Payment will be credited to Client's designated account within 3 business days. Because delays may arise from time to time, these are targets and not guarantees; how- ever, so long as Client has provided all necessary and correct Payment Processing information to enable Yardi to properly facilitate the routing of Payments from the Agent to the Client, Yardi has the appropriate guarantees from CheckFreePay that CheckFreePay will promptly and accurately deliver to Client all Payments made using WIPS. f. Client expressly acknowledges and agrees to the following Office of Foreign Asset Control (OFAC) obligations: (1) Client shall not use WIPS, or allow WIPS to be used, for any purpose other than the payment of rent and related charges by tenants who physically occupy the dwelling for which the rent payment or related charges apply. (2) Client shall at all times comply with all OFAC requirements and fulfill all OFAC responsibilities that apply to Client concerning the administration and enforcement of economic and trade sanctions against targeted foreign states, organizations, and individuals, including providing any information to Yardi that is reasonably necessary for Yardi to fulfill its obligations under OFAC, if any. (3) If at any time Client discovers or reasonably believes a tenant, employee or organization on the Specially Desig- nated Nationals and Blocked Persons List, published from time to time by OFAC (the "OFAC List"), is using WIPS for any reason, Client shall immediately notify Yardi and cooperate fully with any subsequent investigation or request for information that may be required in connection with complying with OFAC requirements and all other applicable laws and regulations. (4) Except to the extent an OFAC violation arises solely as a result of Yard i's gross negligence or willful misconduct, Client agrees to defend, indemnify and hold Yardi and its parent, subsidiaries, directors, officers, agents, repre- sentatives, and employees harmless from all claims, losses, penalties and other liabilities relating to or arising out of any acts or omissions by Client and its parent, subsidiaries, directors, officers, agents, representatives, tenants or employees that give rise to an OFAC violation. g. Terms Applicable If Client Uses Yardi's Master Merchant Account with WIPS Transactions. If Client utilizes Yardi's Master Merchant Account with ProfitStars forWIPS Transactions, Client acknowledges and agrees that: (i) Client may only process tenant rent payment WIPS Transactions through Yardi's Master Merchant Account with ProfitStars; and (ii) Client agrees that Yardi may satisfy reimbursement for any fees and other charges, including any statement, service, chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client's WIPS Trans- actions from subsequent deposits to the corresponding bank account. Allotted DUs included with core products: 1. Property Management includes: unlimited residential DUs Page10of11 Confidential Preparation Date: March 28, 2018 12:04 PM Implementation/Training Details: 1. On-Site Implementation/Training-In the event Client is purchasing Voyager for the first time, Yardi has advised Client that a minimum of 72 hours of implementation/training or use of a third-party Contractor is necessary for a proper basic implementation. Any unused implementation/training may be applied toward future goods/services. Conversion Details: 1. PHA Conversion: Visual Homes database(s) for MTCS data file, tenant, vendor, owner, and waitlist information Concession Details: 1. All annual concessions set forth in Schedule A (Fee Schedule) are contingent upon Client maintaining the license count set forth in Schedule A (Fee Schedule). If Client reduces the initial license count affecting annual license Fees by more than 10%, the concession shall be reduced in correlation to the annual license Fee reduction. For example, if Client reduces the annual license Fee by 50%, the annual concessions set forth in Schedule A (Fee Schedule) shall be reduced by 50%. Other Terms: 1. Yardi licenses/services are sold separately unless otherwise stated. 2. Client acknowledges that additional licenses/services [i.e., in addition to those initially set forth in Schedule A (Fee Schedule)] require additional Fees at Client's then-current, cumulative, CPI-increased base rate (which base rate shall be annually CPI-increased upon invoicing approximately 60 days prior to each Anniversary Date) for the additional licenses/services at the time of Client's request. Subject to: (i) at least 5 business days' prior written notice from Client; (ii) Client's execution of an amendment to the Agreement; and (iii) payment of additional Fees, Yardi will increase Client's licensed maximum number of licenses. 3. Client acknowledges and agrees that ETL for 1 foreign database is included with the core system, and it is to be used solely for the purpose of onboarding property data into the Client's database and with any other Yardi product for which ETL is recommended for use by Yardi to enhance product function. The foreign database included is not to be used as an interfacing tool with external systems except when ETL services are purchased separately. Page 11 of 11 Confidential Preparation Date: March 28, 2018 12:04 PM ~ I OATE(MM/00/YYYY) ACC>RD• CERTIFICATE OF LIABILITY INSURANCE 11/02/2017 ~ THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Aon Risk Insurance Services west, Inc. PHONE (866) 283-7122 I rie2. No.I: (800) 363-0105 Los An~eles CA office (A/C. No. Ext): 707 wi shire Boulevard E-MAIL suite 2600 ADDRESS: Los Angeles CA 90017-0460 USA INSURER(S) AFFORDING COVERAGE NAJC # INSURED INSURER A: Lloyd's syndicate No. 3624 Mll20098 vardi systems, Inc. INSURER B: Atlantic Specialty Insurance company 27154 430 south Fairview Avenue INSURER C: Santa Barbara CA 93117 USA INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 570069144149 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested '°'"R TYPE OF INSURANCE ~uu, l"Ut,K POLICY NUMBER ,,.;~)b'6)'yyyy1 IMM/DDiM'v LIMITS LTR INSD 'IND B X COMMERCIAL GENERAL LIABILITY /ll-Ul-44-94-UUU'.> 11/Ul/LUl/ 11/Ul/ LUl~ EACH OCCURRENCE $1,000,000 -:=J CLAIMS-MADE 0occuR Uf"\IVlf"\Gt: I u H.t:.N . c:u $1,000,000 PREMISES /Ea occurrence\ MEO EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1,000,000 GEN'LAGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 Fl DPR~ 0LOC PRODUCTS -COMP/OP AGG $2,000,000 POLICY: JECT OTHER B AUTOMOBILE LIABILITY 711-01-44-94-0005 11/01/2017 11/01/2018 COMBINED SINGLE LIMIT $1,000,000 /Ea accident\ f--. BODILY INJURY ( Per person) X ANY AUTO -OWNED -SCHEDULED BODILY INJURY (Per accident) -AUTOS ONLY AUTOS PROPERTY DAMAGE -NON-OWNED HIRED AUTOS (Per accident) -ONLY -AUTOS ONLY UMBRELLA LIAB H OCCUR EACH OCCURRENCE -AGGREGATE EXCESS LIAB CLAIMS-MADE OED\ \RETENTION B WORKERS COMPENSATION AND 4060424250004 11/01/2017 11/01/2018 XI PER I IOTH- EMPLOYERS' LIABILITY Y/N STATUTE ER ANY PROPRIETOR/ PARTNER/ EXECUTIVE ~ E.L. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L. DISEASE-EA EMPLOYEE $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE-POLICY LIMIT $1,000,000 A E&o-MPL-XS UCS262728716 12/31/2016 12/31/2017 Prof Liability $1,000,000 claims Made SIR $500,000 SIR applies per policy ter tns & condi ions DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) city of Carlsbad is included as Additional Insured in accordance with the policy provisions of the General Liability policy. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Carlsbad AUTHORIZED REPRESENTATIVE 1200 Carlsbad village Dr. Attn: Neill Collins dn ~JnJlaan# y:7ew.m, ~J-Carlsbad, CA 92008-1949 USA ©1988-2015 ACORD CORPORATION_ All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD cii .;:::: .. C: Cl) :E ... Cl) -0 0 :I: 0) ..,. ~ ..,. (J) CD 0 0 r--'° 0 z Cl) -; 0 .;:::: t: Cl) u ~ ~ z ~ - ./ AGENCY CUSTOMER ID: 570000066059 LOC#: ADDITIONAL REMARKS SCHEDULE AGENCY NAMED INSURED AOn Risk Insurance services west, Inc. Yardi Systems, POLICY NUMBER see certificate Number: 570069144149 CARRIER I NAICCODE See Certificate Number: 570069144149 EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance YARDI SYSTEMS INC. TORRIDON LLC JASKE TRUST OWNS ONLY YARDI PROPERTIES. RCASH INC MANAGEMENT, PAYABLES PROCESSING, AND ELECTRONIC FUNDS MULTI-HOUSING NEWS AND COMMERCIAL PROPERTY EXECUTIVE RENTGROW INC YES ENERGY MANAGEMENT INC [FORMERLY KNOWN AS ENERGY BILLING SYSTEMS INC/ENERGY BILLING SERVICES) VISUAL HOMES DIY REAL ESTATE PROPERTYSHARK YARDI MARKETPLACE, INC. RENTCAFE HUD HOMESTORE SCREENING WORKS REEPCO (DBA REALTOWN AND INTERNETCRUSADE) POINT2 ALMSA INC CLIENT ACCOUNTING SERVICES LEAD TRACKING SOLUTIONS POPCARD YES MULTIFAMILY INC (NAME CHANGE FOR ISTA MULTIFAMILY INC) YARDI RESIDENT SCREENING COROWA LLC ISTA MULTIFAMILY INC YES ENERGY MANAGEMENT INC. 30 COROWA LLC 2 PIERCE-EISLEN INC CENTERSHIFT ENERLIANCE, INC POINT2 MANAGERS POINT2 TECHNOLOGIES YARDI SYSTEMS, INC. DBA: MCENERGY OPTIMUS EMR PEAK INSURANCE ADVISORS LLC PROLIPHIX, INC. Named Insureds Inc. Page _ of _ ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. @VANTAGE FOR GENERAL LIABILITY TECHNOLOGY COMPANIES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following schedule lists the coverage extensions provided by this endorsement. Refer to the individual provisions to determine the extent of your coverage. SCHEDULE OF COVERAGE EXTENSIONS 1. Additional Insured -Broad Form Vendors 8. Coverage Territory -Worldwide 2. Additional Insured -by Contract, Agreement or 9. Duties in Event of Occurrence, Claim or Suit Permit relating to: 10. Expected or Intended Injury (PD) o Work performed by you 11. Incidental Medical Malpractice o Premises you own, rent, lease or occupy 12. Medical Payments o Equipment you lease 13. Mobile Equipment Redefined 3. Aggregate Limit Per Location 14. Newly Acquired or Formed Organizations 4. Blanket Waiver of Subrogation 15. Non-Owned Aircraft 5. Bodily Injury Redefined -Mental Anguish 16. Non-Owned Watercraft 6. Broadened Named Insured 17. Personal and Advertising Injury 7. Broadened Property Damage 18. Product Recall Expense o Borrowed Equipment 19. Supplementary Payments Increased Limits o Customers' Goods o Use of Elevators 1. ADDITIONAL INSURED -BROAD FORM VENDORS Section II -Who Is An Insured is amended to include as an additional insured any person(s) or organization(s) (referred to below as vendor) with whom you agreed in a written contract or agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of ''your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: a. This provision 1. does not apply to: (1) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (2) Any express warranty not authorized by you; {3) Any physical or chemical change in the product made intentionally by the vendor; (4) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (5) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (7) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (8) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: VCG 207 07 09 (a) The exceptions contained in Subparagraphs 4. or 6.; or Includes copyrighted material of Insurance Services Office, Inc. Copyright 2009, ! ! ! ! !! !!! ! !! ! !! ! !!!! ! !! ! !! ! !! ! !! !!!! !! !! !! I !I! !!I I ! !! I!!!!! I!!!!!!!!!!! Page 1 of7 (b) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (9) Any vendor, person or organization if the "products-completed operations hazard" is excluded either by the provisions of the Coverage Form or by endorsement. b. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 2. ADDITIONAL INSURED -CONTRACT, AGREEMENT OR PERMIT a. Section II -Who Is An Insured is amended to include as an additional insured any person(s) or organi- zation(s) with whom you agreed in a written contract, written agreement or permit to provide insurance such as is afforded under this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of "your work" for the additional insured(s) at the location designated in the contract, agreement or permit; or 2. In the maintenance, operation or use of equipment leased to you by such person(s) or organization(s), or 3. In connection with premises you own, rent, lease or occupy. This insurance applies on a primary or primary and non-contributory basis if that is required in writing by the contract, agreement or permit. b. The insurance provided to the additional insured herein is limited. This insurance does not apply: 1. Unless (a) the written contract, agreement or permit is currently in effect or becomes effective during the term of this policy; and (b) the contract or agreement was executed or permit issued prior to the "bodily injury", "property damage", or "personal and advertising injury"; 2. To any person or organization included as an insured under the Additional Insured -Broad Form Vendors provision of this endorsement; 3. To any person or organization included as an insured by an endorsement issued by us and made part of this Coverage Part; 4. To any person or organization if the "bodily injury", "property damage", or "personal and advertising injury" arises out of the rendering of or failure to render any professional architectural, engineering or surveying services by or for you including: (a) The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. 5. To any: (a) Lessor of equipment after the equipment lease terminates or expires; or (b) Owners or other interests from whom land has been leased; or (c) Managers or lessors of premises if: (1) The "occurrence" takes place after you cease to be a tenant in that premises; or (2) The "bodily injury", "property damage", "personal and advertising injury" arises out of structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessor. 6. To "bodily injury, or "property damage" occurring after: Page 2 of7 (a) All work on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured at the site of the covered operations has been completed; or (b) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as part of the same project. Includes copyrighted material of Insurance Services Office, Inc. VCG 2070709 Copyright 2009, ! !! !!!!!!!!!! !! !!! !!!! !!!!!!!!!! !!! !!! !!! !!! ! !! ! !! c. Limits of Insurance applicable to the additional insured are those specified in the contract, agreement or permit or in the Declarations of this policy, whichever is less, and fix the most we will pay regardless of the number of: 1. Insureds; 2. Claims made or "suits" brought; or 3. Persons or organizations making claims or bringing "suits". These Limits of Insurance are inclusive of and not in addition to the Limits of Insurance shown in the Declarations. 3. AGGREGATE LIMIT PER LOCATION a. Under Section Ill -Limits of Insurance, the General Aggregate Limit applies separately to each of your "locations" owned by or rented or leased to you. b. Under Section V -Definitions, the following definition is added: "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right-of-way of a railroad. 4. BLANKET WAIVER OF SUBROGATION Section IV -Transfer of Rights of Recovery Against Others to Us Condition is amended to add the following: We will waive any right of recovery we may have against any person or organization because of payments we make for injury or damage arising out of your ongoing operations done under a written contract or agreement with that person or organization and included in "your work" or the "products-completed operations hazard". This waiver applies only to persons or organizations with whom you have a written contract, executed prior to the "bodily injury" or "property damage", that requires you to waive your rights of recovery. 5. BODILY INJURY REDEFINED -MENTAL ANGUISH Under Section V, the definition of "bodily injury" is replaced by the following: "Bodily injury" means bodily injury, sickness, or disease sustained by a person, including mental anguish or death resulting from any of these at any time. 6. BROADENED NAMED INSURED Section II -Who Is An Insured is amended to include as an insured the following: Any organization which is a legally incorporated entity in which you own a financial interest of more than 50 percent of the voting stock on the effective date of this endorsement will be a Named Insured until the 180th day or the end of the policy period, whichever comes first, provided there is no other similar insurance available to that organization. The insurance afforded herein does not apply to any entity which is also an insured under another policy or would be an insured under such policy but for its termination or the exhaustion of its limits of insurance. 7. BROADENED PROPERTY DAMAGE-BORROWED EQUIPMENT, CUSTOMERS' GOODS AND USE OF ELEVATORS The insurance for "property damage" liability is subject to the following: a. The Damage To Property exclusion under Section I Coverage A is amended as follows: 1. The exclusion for personal property in the care, custody or control of the insured does not apply to "property damage" to equipment you borrow while at a job site and provided it is not being used by anyone to perform operations at the time of loss. 2. The exclusions for VCG 207 07 09 (a) Property loaned to you; (b) Personal property in the care, custody or control of the insured; and (c) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it do not apply to "property damage" to "customers' goods" while on your premises nor do they apply to "property damage" arising from the use of elevators at premises you own, rent, lease or occupy. Subject to the Each Occurrence Limit, the most we will pay for "property damage" to "Customers' Goods" is $35,000 per "occurrence". Includes copyrighted material of Insurance Services Office, Inc. Page 3 of 7 Copyright 2009, !! !!! !!1! ! !!!!ll!ll!l!!!!!!!!l!!!l!l!!!!!!!!!l!!ll b. Under Section V -Definitions, the following definition is added: "Customers' Goods" means goods of your customer on your premises for the purpose of being: 1. Repaired; or 2. Used in your manufacturing process. c. The insurance afforded by this provision is excess over any other valid and collectible property insurance (including any deductible) available to the insured whether such insurance is primary, excess, contingent or on any other basis. Any payments by us will follow the Other Insurance -Excess provisions in the COMMERCIAL GENERAL LIABILITY CONDITIONS. 8. COVERAGE TERRITORY -WORLDWIDE The definition of "coverage territory" is replaced by the following: "Coverage territory" means anywhere provided the insured's responsibility to pay damages must be determined in a settlement we agree to or in a "suit" on the merits brought within the United States of America (including its territories and possessions), Puerto Rico or Canada. 9. DUTIES IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT Section IV -Duties In The Event Of Occurrence, Claim or Suit is amended by adding the following paragraphs: a. The requirements that you must 1. notify us of an "occurrence" offense, claim or "suit" and 2. send us documents concerning a claim or "suit" apply only when such "accident" claim, "suit" or "loss" is known to: 1. You, if you are an individual; 2. A partner, if you are a partnership; 3. An executive officer of the corporation or insurance manager, if you are a corporation; or 4. A manager, if you are a limited liability company. b. The requirement that you must notify us as soon as practicable of an "occurrence" or an offense that may result in a claim does not apply if you report an "occurrence" to your workers compensation insurer which later develops into a liability claim for which coverage is provided by this policy. However, as soon as you have definite knowledge that the particular "occurrence" is a liability claim rather than a workers compensation claim, you must comply with the Duties In The Event Of Occurrence, Offense, Claim Or Suit Condition. 10. EXPECTED OR INTENDED INJURY (PROPERTY DAMAGE) The Expected Or Intended Injury exclusion under Coverage A Bodily Injury and Property Damage is replaced by: "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property. 11. INCIDENTAL MALPRACTICE -EMPLOYED PHYSICIANS, NURSES, EMT'S AND PARAMEDICS a. Under Section II -Who Is An Insured, the paragraph that excludes an employee or volunteer worker as insured for "bodily injury" or "personal and advertising injury" arising out of his or her providing or failing to provide professional health care services does not apply to a physician, dentist, nurse, emergency medical technician or paramedic employed by you if you are not engaged in the business or occupation of providing medical, paramedical, surgical, dental, x-ray or nursing services. b. The insurance afforded by this provision is excess over any other valid and collectible insurance whether such insurance is primary, excess, contingent or on any other basis. Any payments by us will follow the Other Insurance -Excess Insurance provisions in the COMMERCIAL GENERAL LIABILITY CONDITIONS. 12. MEDICAL PAYMENTS -INCREASED LIMITS AND TIME PERIOD In the Insuring Agreement under Coverage C -Medical Payments, the requirement that expenses are incurred and reported to us within one year of the date of the accident is changed to three years. a. The Medical Expense Limit is $15,000 per person or the amount shown in the Declarations as the Medical Expense Limit, whichever is greater. b. This provision 12. does not apply if Coverage C -Medical Payments is otherwise excluded either by the provisions of the Coverage Form or by endorsement. Page 4of7 Includes copyrighted material of Insurance Services Office, Inc. VCG 207 0709 Copyright 2009, !! ! ! ! !!! ! !! ! !!! !!! !! ! ! !!! !! ! ! ! ! !! ! !!! ! !! ! !! ! !! !!! ! 13. MOBILE EQUIPMENT -SELF-PROPELLED SNOW REMOVAL, ROAD MAINTENANCE AND STREET CLEANING EQUIPMENT The following is added to the "mobile equipment" definition: Vehicles maintained primarily for purposes other than the transportation of persons or cargo that are self- propelled vehicles of less than 1,000 pounds gross vehicle weight with the following types of permanently attached equipment will be considered "mobile equipment": a. Snow removal; b. Road maintenance, but not construction or resurfacing; or c. Street cleaning. 14. NEWLY FORMED OR ACQUIRED ORGANIZATIONS Under Section II -Who Is An Insured, the time period limitation for newly acquired or formed organizations is replaced by: Coverage under this provision is afforded only until the end of the current policy period. 15. NON-OWNED AIRCRAFT The Aircraft, Auto Or Watercraft exclusion under Coverage A Bodily Injury And Property Damage Liability does not apply to an aircraft that is: 1. Hired, chartered or loaned with a paid crew; and 2. Not owned by any insured. a. The insurance afforded by this provision 15. is excess over any other valid and collectible insurance Qncluding any deductible or Self Insured Retention) available to the insured, whether such insurance is primary, excess, contingent or on any other basis. Any payments by us will follow the Other Insurance - Excess Insurance provisions in the COMMERCIAL GENERAL LIABILITY CONDITIONS. 16. NON-OWNED WATERCRAFT a. Section II -Who Is An Insured is amended to include as an insured for any watercraft that is covered by this policy, any person who, with your expressed or implied consent, either uses or is responsible for the use of a watercraft. However, no person or organization is an insured with respect to: 1. "Bodily injury" to a co-"employee" of the person operating the watercraft; or 2. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. b. In the exception to the Aircraft, Auto Or Watercraft exclusion under Coverage A Bodily Injury And Property Damage Liability, the limitation on the length of a watercraft is increased to 55 feet. c. The insurance afforded by this provision 16. is excess over any other valid and collectible insurance Qncluding any deductible or Self Insured Retention) available to the insured, whether such insurance is primary, excess, contingent or on any other basis. Any payments by us will follow the Other Insurance - Excess Insurance provisions in the COMMERCIAL GENERAL LIABILITY CONDITIONS. 17. PERSONAL AND ADVERTISING INJURY The following exclusions under the definition of "personal and advertising injury" are amended as follows: a. Insureds In Media Type Businesses "Personal and advertising injury" committed by an insured whose business is: (1) Advertising, broadcasting, publishing or telecasting; or (2) Designing or developing content of websites for others. However, this exclusion does not apply to paragraphs 14 a., b. and c. of "personal and advertising injury" under the Definitions Section. For the purposes of this exclusion, the placing of frames, borders or links, or advertising, for you is not by itself, considered the business of advertising, broadcasting, publishing or telecasting. b. Electronic Chatrooms Or Bulletin Boards "Personal and advertising injury" arising out of an electronic chatroom or bulletin board the insured hosts, owns, or maintains for others. VCG207 07 09 Includes copyrighted material of Insurance Services Office, Inc. Page 5 of7 Copyright 2009, ! !! ! !! !! 11 ! !!!! ! !1 !! ! !! ! !! ! !!! ! !!!! !!!! !!! ! !! t! I!! 18. PRODUCT RECALL EXPENSE With respect to this Provision 18., the Recall Of Products, Work Or Impaired Property exclusion under Coverage A Bodily Injury And Property Damage Liability is deleted. a. The following is added to Section Ill -Limits Of Insurance section: 1. The Limits of Insurance shown in the Product Recall Schedule and rules below fix the most we will pay regardless of the number of (a) Insureds; (b) "Covered recalls" initiated; or (c) Number of "your products" recalled. 2. The Product Recall Aggregate Limit is the most we will reimburse you for the sum of all "product recall expenses" incurred for all "covered recalls" initiated during the policy period. 3. Subject to 2. above, the Each Product Recall Limit is the most we will reimburse you for the sum of all "product recall expenses" arising out of any one "covered recall" for the same defect or deficiency. 4. Subject to 3. above, we will pay only the amount of "product recall expenses" in excess of the deductible amount shown in the Product Recall Schedule. Products Recall Schedule Product Recall Aggregate Limit Each Product Recall Limit Each Product Recall Deductible Limits of Insurance $50,000 $25,000 $1,000 If any limits and deductible other than those above are shown in the Declarations as the Products Recall Expense Limits, the amounts shown in the Declarations will replace the Limits of Insurance and deductible provided for this coverage. The Limits of Insurance for this coverage apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for the purposes of determining the Limits of Insurance. b. The following is added to the Duties In The Event Of Occurrence, Offense, Claim Or Suit provision under Section IV -Conditions: You must see to it that the following are done in the event of an actual or anticipated "covered recall" that may result in "product recall expense": 1. Give us prompt notice of any discovery or notification that "your product" must be withdrawn or recalled. Include a description of "your product" and the reason for the withdrawal or recall; 2. Cease any further release, shipment, consignment or any other method of distribution of like or similar products until it has been determined that all such products are free from defects that could be a cause of loss under this insurance; 3. As often as may be reasonably required, permit us to inspect "your product" that demonstrates the need for the "covered recall" and permit us to examine your books and records. Also permit us to take damaged and undamaged samples of "your products" for inspection, testing and analysis; and permit us to make copies from your books and records; 4. Send us a signed, sworn, proof of loss containing the information we requested to settle the claim. You must do this within 60 days after our request. We will supply you with the necessary forms; and 5. Permit us to examine any insured under oath, while not in the presence of any other insured and at such times as may reasonably be required, about any matter relating to this insurance or your claim, including an insured's books and records. In the event of an examination, an insured's answers must be signed. Page 6 of 7 Includes copyrighted material of Insurance Services Office, Inc. VCG207 0709 Copyright 2009, ! ! !! ! !! ! !! ! !! ! ! ! ! ! !! ! I!!! I!!!!!!!!!!!!!!!!!!!!!!!! c. The following definitions are added to the Definitions Section: 1. "Covered recall" means a recall made necessary because the insured or a government body has determined that a known or suspected defect, deficiency, inadequacy or dangerous condition in "your product" has resulted in or will result in "bodily injury" or "property damage". 2. "Product Recall Expense" means: (a) The following necessary and reasonable expenses you incur exclusively for the purpose of recalling "your product": (1) For communications, including radio or television announcements or printed advertisements including stationery, envelopes and postage; (2) For shipping the recalled products from any purchaser, distributor or user to the place or places designated by you; (3) For remuneration paid to your regular "employees" for necessary overtime; (4) For hiring additional persons, other than your regular "employees"; (5) Incurred by "employees", including transportation and accommodations; (6) To rent additional warehouse or storage space; or (7) For disposal of "your products", but only to the extent that specific methods of destruction other than those employed for trash discarding or disposal are required to avoid "bodily injury" or "property damage" as a result of such disposal, but "product recall expenses" does not include costs of regaining your market share, goodwill, revenue or profit. (b) "Product Recall Expense" does not include any expenses resulting from: (1) Failure of any product to accomplish its intended purpose; (2) Breach of warranties of fitness, quality, durability or performance; (3) Loss of customer approval, or any cost incurred to regain customer approval; (4) Redistribution or replacement of "your product" which has been recalled by like products or substitutes; (5) Caprice or whim of the insured; (6) A condition likely to cause loss of which any insured knew or had reason to know at the inception of this insurance; and (7) Recall of "your products" that have no known or suspected defect solely because a known or suspected defect in another of ''your products" has been found 19. SUPPLEMENTARY PAYMENTS-INCREASED LIMITS Under Section I -Coverages, Supplementary Payments -Coverages A and B, paragraphs 1.b. and 1.d. are replaced by the following: b. Up to $2,500 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. VCG 207 07 09 Includes copyrighted material of Insurance Services Office, Inc. Page 7 of 7 Copyright 2009, !! ! ! ! !! ! !!! ! !! ! !! ! ! ! ! !! ! ! ! !! ! !! ! ! !!!! !!!! !!! !! ! !!! AGENCY CUSTOMER ID: 570000066059 LOC#: ADDITIONAL REMARKS SCHEDULE AGENCY NAMED INSURED Aon Risk Insurance services west, Inc. Yardi systems, POLICY NUMBER see Certificate Number: 570069144149 CARRIER I NAICCODE See certificate Number: 570069144149 EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Policy #XS407513 Effective 2/24/17 -12/31/17 Insurer: colony Insurance Company Limit: $10,000,000 XS $40,000,000 Policy #El856EXSF0215 Effective: 12/31/16 -12/31/17 Insurer: Limit: $5,000,000 XS $20,000,000 Policy #XEOG25584909002 Effective: 12/31/16 -12/31/17 Insurer: Ace American Insurance company Limit: $10,000,000 Policy #MPX1800087 Effective 2/24/17 -l?/31/17 Insurer: Interstate Fire Insurance company Limit: $10,000,000 XS $30,000,000 Policy #491892 Effective: 12/31/16 -12/31/17 Insurer: underwriters@ Lloyds Limit: $5,000,000 XS $20,000,000 E&o/cyber Policies Inc. Page_ of_ ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD