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2020/11/03 CoStar Realty Information, Inc.
* Please attached a second page for additional information to support this agreement. CITY OF MENIFEE Agreement/contract coversheet DATE: October 16, 2020 TO: Armando G. Villa, City Manager CC: Agreement Routed to City Attorney: 10/16/2020 (Via email, attached) Insurance Requirements: General Liability (Pending, Requested) (Attached) Automobile Liability (Pending, Requested) Worker’s Compensation (Pending, Requested) Other- Professional Liability (Pending, Requested) FROM: Kayla Charters, Management Analyst Margarita Cornejo, Financial Services Manager SUBJECT: Software/License Agreement between the City of Menifee and CoStar for CoStar Realty Information Subscription (California State) IS THE AGREEMENT/CONTRACT WITHIN THE CITY MANAGER’S SIGNATURE AUTHORITY? Yes – Purchase of Commodities under $50,000 Professional Services under $25,000 Change Order under $25,000 or less than 10% of original contract (supplies, equipment, services or construction contracts) Public Works Contract for $45,000 or less No – City Council authorized City Manager to sign (Council action attached) WHY IS THIS AGREEMENT/CONTRACT NEEDED? The agreement between the City of Menifee and CoStar will provide 2 annual licenses (for a one year period with optional annual renewals) to the CoStar Realty Information software which would provide Economic Development staff with detailed/specific information on real estate activity within the surrounding region and state of California. Use of the this software would be beneficial to staff in identifying prospective economic development opportunities based on identified real estate activity. This agreement supercedes the agreement previously executed between the City of Menifee and CoStar in FY2018/19 which only provided a subscription for the regional (Inland Empire area). WHAT IS THE TOTAL LENGTH OF THE AGREEMENT/CONTRACT? The initial term of the agreement will cover the period of October 1, 2020 to October 1, 2021 Auto-Renewal Clause Included (Yes/No/N/A) Cancellation/Not-Renewal Notification Requirement Yes 60 Days Prior to the last Day of Initial Term or Rewal No Reminder to Review Cancellation/Not Renewal: July 1st Department Date Initials Gina Gonzalez, Economic Dev. Director Wendy Preece, Deputy Finance Director Rochelle Clayton, Deputy City Manager Jeffrey T. Melching, City Attorney Sarah A. Manwaring, City Clerk DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/20/2020 10/20/2020 10/22/2020 10/28/2020 11/3/2020 2 WHAT IS THE TOTAL DOLLAR AMOUNT OF THE AGREEMENT/CONTRACT? $12,478 per year (Not-to-Exceed Amount), subject to an annual CPI increase. This agreement can be auto-renewed for 4 additional years at $12,478 before exceeding $50,000 and requiring City Council approval. HOW WAS THE VENDOR/CONSULTANT/CONTRACTOR DECIDED ON? CoStar provides this propietory software with detailed real estate activity. Pursuant to Chapter 3.12.070 Exemption from Bidding Upon Determination of Purchasing Officer or City Council, the bidding requirements may be waived when: (7) The commodity is unique, including, but not limited to, acquisition of data processing, telecommunications and word processing equipment, goods and services. Supplies/Equipment/Maintenance/Construction Prior Contract/Experience with the City $5,000 - $49,000 – Three Written Quotes Yes Over $50,000 – Competitive Bidding and Formal Proposals Public Works Projects Professional Services Under $45,000 – Purchase Order, Contract (Prudent Judgement) Under $25,000 – City Manager $45,000 - $174,999 – Informal Bidding Process over $25,000 – City Council Approval Over $175,000 – Formal Bidding Required WHERE ARE THE FUNDS COMING FROM? Funding is coming from the approved FY 2020/21 Economic Development Budget WHAT GENERAL LEDGER ACCOUNT NUMBER SHOULD BE USED FOR THE PURCHASE ORDER? 100-4350-52800 (Professional Services) IS THERE SUFFICIENT BUDGET? WHAT IS THE AVAILABLE BUDGET? Yes, as of 10/16/2020 Account #100-4350-52800 has $312,660.84 in available funds. (see attached Eden Report) ATTACHMENTS - CONTRACT/AMENDMENT - CERTIFICATES OF INSURANCE - EMAIL TO CITY ATTORNEY FOR REVIEW/APPROVAL - EXPENDITURE STATUS REPORT (AVAILABILITY OF FUNDS) DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 INVOICE TYPE/BILLING PREFERRED: Immediate Start BILL TO: TERM: USE: Telephone: mcornejo@cityofmenifee.us City of Menifee Bill-To Contact: (951) 672-6777 Menifee, CA 92586Address: 29228075 Margarita Cornejo Total No. Sites: City/Prov/Postal Code: Email for Bill-to-Contact: BILLING CYCLE: Location ID: 1 29714 Haun Rd One Year Initial Term Licensee: 1Total No. Authorized Users (All Sites): Monthly Quarterly Yearly Total No. Listings:0 START DATE: Single Invoice (Before Tax) SCHEDULE OF SERVICES Monthly License FeesSiteMarketProduct Description SERVICES $1,039.78CoStar SuiteCalifornia State29228075 $1,039.78Total Monthly License Fees: Discounted Monthly License Fees: Discount: Total Monthly Fees From Additional Schedule of Services Notes:This Agreement supersedes the agreement between the above-named Customer/Licensee and CoStar/Licensor dated 02/22/2019 relating to the provision of CoStar services, except for those terms that survive termination and any outstanding license fees. This agreement includes the applicable Terms and Conditions for the services identified above, available at https://www.apartments.com/advertise/disclaimers/internet-advertising-terms-and- conditions, https://www.apartments.com/advertise/ocps-terms-conditions and/or https://www.costar.com/CoStarTerms-and-Conditions, and any addenda attached hereto between CoStar Realty Information, Inc. (“CoStar”) and the above-named Customer/Licensee (collectively, the “Agreement”), and establishes the terms and conditions under which CoStar will license the products set forth in this Agreement. The Terms and Conditions are an integral part of the Agreement being formed hereby. In addition, this Agreement incorporates by reference the website Terms of Service/Use (the “Website Terms of Use”) available online for each applicable service provided under this Agreement (e.g., www.costar.com, www.apartments.com, www.apartmentfinder.com, etc.). Customer/Licensee agrees to comply with the Website Terms of Use and to regularly review such terms for updates and changes. To the extent a conflict exists, the Subscription Form and the Terms and Conditions shall govern over the Website Terms of Service. Terms used on this Subscription Form and not otherwise defined shall have the meanings set forth in the applicable Terms and Conditions. In the event Licensee does not execute this Agreement by the following date 10/31/2020, the terms of this Agreement shall become null and void; however, if both parties execute and commence performance of their duties and obligations under this Agreement after such date, this Agreement shall continue in full force and effect and be binding on the parties. Licensee may not make any changes to this Agreement unless agreed to by CoStar in writing. The person executing this Agreement on behalf of Licensee represents and warrants that he or she has been authorized to do so and that all necessary actions required for the execution have been taken. CoStar hereby provides notice that only an authorized officer of CoStar or its parent company can execute this Agreement on behalf of CoStar. The parties hereby acknowledge that this Agreement may be executed and delivered by facsimile and such facsimile shall constitute a legal and binding agreement on the parties. Print Name:Name: Date: Max Linnington {{client_es_:signer1:fullname}} Washington, DC 20005-4101 {{client_es_:signer1:signature}} 29714 Haun RdAddress: Title: Date:Oct 08, 2020 {{client_es_:signer1:date}} Address: CoStar Realty Information, Inc. Address: By:Signature: Address: Title: Licensee 1331 L St NW Menifee, CA 92586 SVP Sales & Customer Service CoStar Information Subscription Form AE: GovernmentBusiness Code: David Padilla 29228075 1328507 Location ID: FOR INTERNAL ONLY: (Ref ID) Page 1 of 1Schedule Of Services DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 Approved as To Form: 10/28/2020 Armando G. Villa 10/28/2020 City Manager Attest: 11/3/2020 Licensee: AUTHORIZED SITE & USERS LIST Address:City/State/Zip: 29228075 USERS AT ABOVE LISTED SITE Menifee, CA 9258629714 Haun Rd 1 Location ID:City of Menifee Total Number of Authorized Users at Site Phone:951-672-6777 Email: Contact Name:Gina Gonzalez ggonzalez@cityofmenifee.us Role:User CoStar Information Subscription Form Page 1 of 1User Detail DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 1/13 (/) CoStar Terms and Conditions (Commercial) 1. License. (a) This Agreement between CoStar Realty Information, Inc. (“CoStar ”) and Licensee concerns one or more electronic databases developed and maintained by CoStar each consisting of (1) a proprietar y database (the "Database") of commercial real estate information, including but not limited to, the information, text, photographic and other images and data contained therein (collectively, the “Information”) and the proprietary organization and structures for categorizing, sor ting and displaying such Information, (2) forecasts, evaluations, simulations, assessments, models, processes, methods, techniques, applications, procedures, formulae, algorithms and other analyses related to real estate or securities, including but not limited to those related to the Licensee’s por tfolio or otherwise resulting from the performance of services rendered in connec tion with any consulting agreement between CoStar and Licensee (the “Analysis”), (3) commercial real estate market repor ts, which may contain the Analysis (the “CoStar Market Repor ts”) and (4) related sof tware (the “Sof tware”). Those por tions of the Sof tware, Database, Analysis and CoStar Market Repor ts that are licensed hereunder, including any updates or modifications thereto, and any information derived from the use of the Database, Analysis or CoStar Market Repor ts, including as a result of the verification of any por tion of the Information, Analysis or CoStar Market Repor ts by Licensee, are collectively referred to herein as the “Licensed Produc t.” (b) During the term of this Agreement, CoStar hereby grants to Licensee a nonexclusive, nontransferable license to use only those por tions of the Licensed Product that are expressly identified on the Subscription Form to which these CoStar Terms and Conditions are at tached, subject to and in accordance with the terms of this Agreement. (c) The Licensed Product may be used by no more than the number of users set for th on the Subscription Form and, except as set for th below, only at the site(s) specifically identified herein. Except where Licensee is an individual, and therefore the sole Authorized User, all of such users (the “Authorized Users”) must be individuals (1) employed by Licensee or an Exclusive Contractor of Licensee at a site identified on the Subscription Form and (2) included on CoStar ’s list of Authorized Users and associated sites for the Licensed Product. Licensee DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 2/13 understands that all individuals that benefit from the Licensed Product at each licensed site, which for the avoidance of doubt includes any broker, agent, researcher, analyst, appraiser, surveyor, valuer, investment professional (including those making /assisting with investment or lending decisions), advisor, underwriter, asset manager, sales or other similar personnel (including, but not limited to, managers or directors managing such personnel) must be an Authorized User and Licensee agrees to notif y CoStar if the number of such individuals at a site exceeds the number of Authorized Users set for th in this Agreement. An “Exclusive Contractor ” is defined as an individual person working solely for Licensee and not also for themselves or another company with commercial real estate information needs and performing substantially the same services for Licensee as an employee of Licensee. (d) Licensee will ensure that access to and use of the Licensed Product, and the user names and passwords (collectively, the “Passcodes”) and any other authentication method used to access the Licensed Product are available only to Authorized Users, and will not allow anyone other than an Authorized User access to the Licensed Produc t or Passcodes for any reason. 2. Use. (a) Subjec t to the prohibitions set for th below, during the term of this Agreement, Licensee may, in the ordinar y course of business: (1) use the Licensed Produc t for Licensee’s internal research purposes; and (2) use the Database (A) to provide information regarding par ticular proper ties to its clients and prospec tive clients; (B) to market par ticular proper ties, and (C) to suppor t its valuation, appraisal or counseling regarding a specific proper ty. Licensee may also, in the ordinary course of its business share or distribute to clients limited amounts of Information and limited excerpts and discrete por tions of Analysis, including limited excerpts and discrete por tions from CoStar Market Repor ts (“CoStar Excerpts”) that are contained in or incidental to its own repor ts, analyses or presentations for clients (“Client Materials”), provided that: (i) such CoStar Excerpts are only suppor tive of the substance of the Client Materials; (ii) Licensee shall be liable for any such distribution of the CoStar Excerpts; (iii) Licensee shall always acknowledge CoStar as the source of the CoStar Excerpts within the Client Materials; (iv) the Client Materials shall not include full copies or substantial por tions of any CoStar Market Repor ts; and (v) the Client Materials only contain limited amounts of building-specific and tenant-specific Information and are not commercially or generally distributed. Subject to the provisions set for th below, Licensee may print Information or copy Information into word processing, spreadsheet and presentation programs (or other sof tware programs with the express writ ten consent of CoStar), so long as the level of Information being printed or copied is reasonably tailored for Licensee’s purposes, insubstantial and used in compliance with this Section. (b) Except as set for th in Section 2(a), Licensee shall not distribute, disclose, copy, reproduce, make available, communicate to the public by telecommunication, display, publish, transmit, assign, sublicense, DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 3/13 transfer, provide access to, use or sell, directly or indirectly (including in elec tronic form), any por tion of the Licensed Product, or modif y, adapt or create derivative works of the Licensed Product. (c) Notwithstanding any other provision herein, Licensee shall not: (1) upload, post or otherwise transmit any por tion of the Licensed Product on, or provide access to any por tion of the Licensed Produc t through, the Internet, any bulletin board system, any elec tronic network, any listing service or any other data sharing arrangement not restricted exclusively to Licensee and the Authorized Users, except that (i) Licensee may e-mail a repor t containing Information or CoStar Excerpts that complies with Section 2(a), to a limited number of its clients and prospec tive clients, and (ii) Licensee may display solely on its own website photographs from the Licensed Product that depict proper ties that Licensee owns, controls, represents or holds exclusives, provided that under no circumstances shall such photographs be posted on any website that may compete with the Licensed Produc t; (2) use any por tion of the Licensed Product to create, directly or indirectly, any database or product; (3) access or use the Licensed Product if you are a direct or indirect competitor of CoStar or provide any por tion of the Licensed Produc t to any direct or indirec t competitor of CoStar; (4) store, copy or expor t any por tion of the Licensed Product into any database or other sof tware program, except as set for th in Section 2(a); (5) modif y, merge, scrape, disassemble or reverse engineer any por tion of the Licensed Product; (6) use, reproduce, publish or compile any Information or Analysis for the purpose of selling or licensing such information or making such information publicly available; (7) use or distribute Information or Analysis that has been verified or confirmed by Licensee for the purpose of developing or contributing to the development of any database, product or service; (8) use any por tion of the Licensed Product in a manner that would violate any U.S., Canadian, international, provincial, state or local law, regulation, rule, ordinance or common-law principle, including real estate practice, competition, marketing, adver tising, defamation, securities, spam and privacy laws; or (9)(A) use any por tion of the Licensed Product in any securities offering materials, registration statement, prospec tus or other filing with the U.S. Securities and Exchange Commission or a foreign securities regulator (or other materials in each case), (B) incorporate by reference any por tion of the Licensed Product into any such registration statement, prospec tus or other filing or (C) use any por tion of the Licensed Produc t in any filing with any federal, provincial, state, local or foreign governmental authority; each case of (A), (B) and (C) being in connection with the offer or sale of securities. 3. Ownership. Licensee acknowledges that the Information is comprised of data that is owned by CoStar and its licensors and that CoStar and its licensors have and shall retain exclusive ownership of all proprietar y rights to the Licensed Produc t, including all U.S., Canadian and international intellectual proper ty and other rights such as patents, trademarks, copyrights and trade DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 4/13 secrets. This is a license agreement and not an agreement for sale. Licensee shall have no right or interest in any por tion of the Licensed Product except the right to use the Licensed Produc t as set for th herein. Licensee acknowledges that the Sof tware, Database, Analysis, Information and Licensed Product constitute the valuable proper ty and confidential copyrighted information of CoStar and its licensors (collectively, the “Proprietar y Information”). Licensee agrees to (a) comply with all copyright, trademark, trade secret, patent, contrac t and other laws necessar y to protect all rights in the Proprietar y Information, (b) not challenge CoStar ’s and its licensor ’s ownership of (or the validity or enforceability of their rights in and to) the Proprietary Information, and (c) not remove, conceal, obliterate or circumvent any copyright or other notice or license, use or copying technological measure or rights management information included in the Licensed Product. Licensee shall be liable for any violation of the provisions of this Agreement by any Authorized User and by Licensee’s employees, Exclusive Contractors, af filiates and agents and for any unauthorized use of the Licensed Product by such persons. Without CoStar ’s consent, Licensee may not use or reproduce any trademark, service mark or trade name of CoStar or its licensors. 4. Term. The term of this Agreement shall begin on the Star t Date, shall continue for the initial term specified on the Subscription Form (the “Initial Term”), and shall expire at the end of such Initial Term on the last day of the calendar month in which the Star t Date occurred, unless earlier terminated pursuant to the terms hereof. This Agreement shall continue thereaf ter for successive periods of one (1) year (each such successive period being a “Renewal Term”) commencing on the last day of the Initial Term or any Renewal Term, unless at least sixty (60) days prior to the last day of the Initial Term or any Renewal Term, either par ty has provided the other writ ten notice of an intent not to renew. Licensee acknowledges that it is responsible for payment of License Fees (as defined below) pursuant to Section 5 for the entire Renewal Term unless the Agreement is terminated in accordance with the notice provisions of this Section. The “Star t Date” shall be the date of dissemination by CoStar of a Passcode for such Licensed Product to Licensee; provided, that for existing customers with Passcodes, the “Star t Date” shall be the date the Agreement is fully executed 5. License Fees. Licensee agrees to pay the License Fees and all other fees set for th in this Agreement, which are priced in U.S. dollars and shall be paid in U.S. dollars (the “License Fees”). Licensee’s obligation to pay such fees shall begin on the Star t Date. Licensee may choose to receive invoices for the License Fees by email, regular mail or both. In addition to any thing set for th herein, CoStar may: (a) on each anniversar y of the last day of the calendar month in which the Star t Date occurred, increase the License Fees by a percentage equal to the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the previous twelve months; and (b) at any DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 5/13 time during a Renewal Term increase the License Fees or charge other fees for any por tion of the Licensed Produc t or service provided by CoStar, provided, that if Licensee does not agree to the increase or charge implemented solely under this Section 5(b), then Licensee may give CoStar writ ten notice of termination within six ty (60) days of CoStar ’s notice of such increase or charge, in which case Licensee shall continue to pay the License Fees in place before the proposed increase or charge until the last day of the calendar month in which Licensee’s notice of termination is delivered, and this Agreement shall terminate with respect to such por tion of the Licensed Produc t on such date. All fees shall be billed in advance in accordance with the billing cycle identified herein and are due net thir ty days. All payments received af ter the due date may be subject to a late payment charge from such due date until paid at a rate equal to the maximum rate permit ted under applicable law. In all cases, the amount of License Fees shall be paid by Licensee to CoStar in full without any right of set-off or deduc tion. CoStar may accept any payment without prejudice to its rights to recover the balance due or to pursue any other right or remedy. No endorsement or statement on any check, payment, or elsewhere will be construed as an accord or satisfac tion. The License Fees do not include sales, use, excise or any other taxes or fees now or hereaf ter imposed by any governmental authority with respect to the Licensed Produc ts. CoStar shall not be bound to use third par ty payment vendors, and any fees charged by such vendors shall be added to the License Fees payable hereunder. At CoStar ’s option, Licensee shall pay such taxes or fees directly or pay to CoStar any such taxes or fees immediately upon invoicing by CoStar. 6. Termination. (a) Either par ty may terminate any por tion of this Agreement in the event of: (1) any breach of a material term of this Agreement by the other par ty which is not remedied within thir ty (30) days af ter writ ten notice to the breaching par ty; or (2) the other par ty ’s making an assignment for the benefit of its creditors, or the filing by or against such par ty of a petition under any bankruptcy or insolvency law, which is not discharged within 30 days of such filing. (b) CoStar may terminate any por tion of this Agreement immediately without fur ther obligation to Licensee: (1) upon CoStar ’s good faith determination of any violation by Licensee of any provision of Section 1, 2, 3, or 13(a) hereunder, or any material provision of any other agreement between the par ties or their af filiates; or (2) in the event that CoStar discontinues a par ticular market or markets that form a par t of the License Produc t or discontinues a par ticular product, upon five (5) days written notice at any time in CoStar ’s sole discretion in which case CoStar shall refund any fees paid by Licensee to license the terminated por tion of the Licensed Product af ter the ef fective date of such termination, and Licensee shall be released of its obligation to pay the associated License Fees due af ter the date of such termination. (c) CoStar may interrupt the provision of any por tion of the DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 6/13 Licensed Produc t to Licensee upon CoStar ’s good faith determination of any violation by Licensee of any provision of Section 1, 2, 3, or 13(a) hereunder, or any material provision of any other agreement between the par ties or their af filiates, and Licensee shall continue to be responsible for all License Fees, provided that Licensee shall not be responsible for license fees for an interrupted period if there was not an actual violation. CoStar will restore the provision of the Licensed Product only if all amounts due hereunder are paid and if, in CoStar ’s reasonable opinion, CoStar has received satisfactor y assurances as to the cessation of the violation. (d) Upon Licensee’s breach of any term of this Agreement, all License Fees and all other fees payable hereunder shall become immediately due and payable in full, and in addition to the foregoing, CoStar ’s remedies shall include any damages and relief available at law or in equity. If CoStar retains any third par ty to obtain any remedy to which it is entitled under this Agreement, CoStar shall be entitled to recover all costs, including attorney’s fees and collection agency commissions, CoStar incurs. 7. Post-Termination. At termination or nonrenewal of this Agreement, Licensee may no longer use any por tion of the Licensed Product in any manner. Within ten (10) days af ter the effective date of termination or nonrenewal, Licensee will permanently delete or destroy all elements of the Licensed Product under its control and upon request from CoStar, af firm the completion of this process by execution and delivery to CoStar of an af fidavit to that ef fect reasonably satisfactor y to CoStar. In addition, CoStar may at its sole expense audit Licensee’s compliance with this provision and the terms of the Agreement, provided, that such audit will occur under Licensee’s reasonable supervision and Licensee shall cooperate in the conduct of the audit. Notwithstanding any thing to the contrar y in the second sentence of this Section 7, upon any non-renewal or termination of the Agreement, Licensee shall not be required to purge from its hard-copy, electronic or email files Information from the Licensed Produc t that Licensee’s Authorized Users incorporated into its own repor ts, analyses or other materials in compliance with the terms of this Agreement and which are contained in such hard-copy, electronic or email files, (the “Post-Termination Information”); provided, however, that the Post- Termination Information may be retained solely for archival, legal or regulator y purposes and may not be used, copied, distributed or displayed for internal research or marketing or for establishing, populating or used within any commercial real estate information ser vice or other searchable database or for any other purposes. 8. Licensed Product. Subject to Section 1 1, during the term of this Agreement, CoStar will provide updated Information and Analysis, as applicable, to Licensee, which updates may be provided through the Internet or in such other manner as determined by CoStar. Licensee is responsible for providing all hardware, sof tware and Internet access necessar y to obtain and use the DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 7/13 Licensed Produc t. CoStar reser ves the right to modif y any par t of the Licensed Produc t or the way the Licensed Product is accessed at any time, so long as such modifications do not significantly degrade the Licensed Product. 9. Information. If Licensee’s business provides any commercial real estate services, Licensee shall use reasonable effor ts to keep CoStar informed about commercial and investment space available for lease and /or sale and transaction information with respect to proper ties that Licensee owns, controls, represents or holds exclusives. Licensee hereby grants to CoStar an irrevocable, non-exclusive license with respect to CoStar ’s and its af filiates’ databases to use, modif y, reproduce and sublicense with respect to commercial real estate information available on Licensee’s website. CoStar acknowledges that if Licensee provides CoStar with any information or images, Licensee retains its rights to such information and images, even following termination of this Agreement. 10. LIMITATION ON LIABILIT Y. (a) LICENSEE ACKNOWLEDGES THAT, TO THE MA XIMUM EXTENT PERMITTED BY L AW, COSTAR AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PART Y SUPPLIERS (COLLECTIVELY, THE “COSTAR PARTIES”) WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PART Y INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR REL ATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE LICENSED PRODUCT, OUT OF ANY INACCUR ACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE LICENSED PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCUR ACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE LICENSED PRODUCT. (b) THE COSTAR PARTIES’ AG GREGATE, CUMUL ATIVE LIABILIT Y REL ATING TO THIS AGREEMENT AND USE OF THE LICENSED PRODUCT SHALL BE LIMITED TO LICENSEE’S ACTUAL, RECOVER ABLE DIRECT DAMAGES, IF ANY, WHICH IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT OF LICENSE FEES ACTUALLY PAID TO COSTAR UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CL AIM AROSE. RECOVERY OF THIS AMOUNT SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY. (c) UNDER NO CIRCUMSTANCES WILL ANY OF THE COSTAR PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPL ARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING OUT OF, BASED ON, RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE LICENSED PRODUCT, EVEN IF COSTAR HAS BEEN ADVISED OF THE POSSIBILIT Y OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IN THIS SECTION 10(c) IS INDEPENDENT OF LICENSEE’S EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS. (d) NO ACTION ARISING OUT OF OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HA S ARISEN. (e) THE DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 8/13 PROVISIONS OF THIS SECTION APPLY WITHOUT REGARD TO THE C AUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE GROUNDED IN CONTR ACT, TORT OR ANY OTHER CAUSE OF ACTION. 1 1. NO WARR ANTIES. ALTHOUGH COSTAR MAKES EFFORTS TO PROVIDE AN ACCURATE PRODUCT, THE LICENSED PRODUCT AND ALL PARTS THEREOF ARE PROVIDED ‘AS IS’, ‘WITH ALL FAULTS’, AND ‘AS AVAIL ABLE’. THE COSTAR PARTIES MAKE NO WARRANTIES. THE COSTAR PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUAR ANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) MERCHANTABILIT Y, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBR ANCES OR LIENS, (2) THE QUALIT Y, ACCUR ACY, TIMELINESS OR COMPLETENESS OF THE LICENSED PRODUCT, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TR ADE, (4) THE LICENSED PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTR ATION OR PROMISE BY ANY COSTAR PART Y, AND (5) THAT ACCESS TO OR USE OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. THE ANALYSIS AND COSTAR MARKET REPORTS CONTAINED IN THE LICENSED PRODUCT MAY INCLUDE, WITHOUT LIMITATION, STATEMENTS REGARDING COSTAR'S CURRENT OR FUTURE BELIEFS, EXPECTATIONS, INTENTIONS OR STR ATEGIES REGARDING PARTICUL AR COMMERCIAL REAL ESTATE MARKETS. THE ANALYSIS AND COSTAR MARKET REPORTS ARE SUBJECT TO MANY RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE ANALYSIS AND COSTAR MARKET REPORTS. LICENSEE UNDERSTANDS THAT THE ANALYSIS AND COSTAR MARKET REPORTS CONTAINED IN THE LICENSED PRODUCT ARE BELIEVED TO BE STATE OF THE ART AND, BY REASON OF THEIR LIMITED PERIOD OF USE, THEIR DEGREE OF ACCURACY IN REPORTING COMMERCIAL REAL ESTATE MARKET INFORMATION AND MAKING FORECASTS IS NOT PROVEN. LICENSEE SHALL NOT HOLD COSTAR OR ITS LICENSORS RESPONSIBLE FOR ANY ERRORS IN REPORTING, EVALUATING, ANALYZING, SIMUL ATING OR FORECASTING COMMERCIAL REAL ESTATE MARKET INFORMATION, OR FOR ANY INFORMATION, ANALYSES OR COSTAR MARKET REPORTS COMPRISING THE LICENSED PRODUCT. 12. Assignment. The par ties’ obligations hereunder are binding on their successors, legal representatives and permit ted assigns. Licensee may not assign or transfer (by operation of law or otherwise) this Agreement nor the license granted hereunder, in whole or in par t, without the prior written consent of CoStar. Notwithstanding any thing set for th to the contrary above, in the event of Licensee’s merger with or acquisition of, or acquisition of assets by, any third par ty, Licensee shall be entitled upon written notice, without approval from CoStar, to assign its rights and obligations under this Agreement to such third par ty; provided, however, that (a) such assignment shall not result in the elimination of any then-existing CoStar revenue stream from DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 9/13 Licensee or such third par ty; and (b) in no event shall Licensee be entitled to assign its rights and obligations hereunder to any individual or entity that directly or indirectly competes with CoStar or any of its affiliates. 13. Passcodes. (a) Licensee will designate a person authorized to determine and change the level of each Authorized User ’s access to the Licensed Product and designated to ensure that Licensee complies with this Agreement. No Authorized User may access the Licensed Product using any Passcode other than the Passcodes assigned to such Authorized User. No Authorized User may share his assigned Passcodes with any other person nor allow any other person to use or have access to his Passcodes. During the term of this Agreement, Licensee will promptly notif y CoStar of any Authorized User ’s change of employment or contractor status with Licensee, including termination of an Authorized User ’s employment or contractual service with Licensee, and upon such termination Licensee shall cease using and destroy the Passcodes for such Authorized User. No Authorized User who ceases to be an employee or Exclusive Contractor of Licensee may use any Passcodes in any manner. (b) Each Authorized User ’s access to the Licensed Produc t may be limited to a designated computer and requires the Authorized User to access the Licensed Produc t solely using the Passcodes and, if required by CoStar, Passcodes with two-fac tor authentication, including, but not limited to, facial recognition authentication. CoStar is under no obligation to confirm the actual identity or authority of any par ty accessing the Licensed Product under your Passcode or other authentication method. 14. Indemnification. Licensee agrees to defend, indemnif y and hold harmless CoStar, its af filiates, and approved assignees, and their par tners, directors, of ficers, employees and agents for all costs and expenses including at torney ’s fees, associated with the defense and settlement of any threatened, pending or completed claim, demand or action by any person not a par ty to this Agreement resulting from, arising out of or relating to Licensee's use or application of the Database, Analysis, Information or Licensed Product in contravention of the terms of the Agreement, including a claim under any laws, rules or regulations (a “Claim”) and shall pay any judgments or set tlements based thereon; provided, that CoStar shall give Licensee prompt writ ten notice of the Claim (provided, however, that CoStar ’s failure to provide such notice shall not relieve Licensee of its indemnification obligations except to the extent it is prejudiced thereby), sole control of the proceedings or set tlement, and, at Licensee’s expense, reasonable cooperation, information and assistance in the defense or set tlement negotiations. CoStar may, at its own expense, reasonably assist in such defense if it so chooses, provided that Licensee shall control such defense and all negotiations relative to the set tlement of any such claim. This clause shall survive the expiration or termination of the Agreement for any reason. Solely with respect to any Claim under any laws, rules or regulations pursuant to the Section above, if for any DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 10/13 reason the foregoing indemnity is unavailable to any CoStar Par ty, CoStar shall be entitled to seek in a cour t of competent jurisdic tion Licensee’s contribution to such Claim under any legal or equitable theories available to it. 15. Notices; Invoices. All notices given hereunder will be in writing and delivered by email, personally mailed by registered or cer tified mail, return receipt requested, or delivered by a well-recognized overnight courier company. If such notice is being delivered to Licensee, such notice shall be delivered to Licensee’s physical address specified on the Subscription Form, email address or to such other address as Licensee may specify, and if being delivered to CoStar, delivered to the physical address set for th on the Subscription Form, At tention: Direc tor of Sales Administration, email address or to such other address as CoStar may specify. All notices will be deemed given if delivered personally or by email, on the day of delivery, if mailed by registered or cer tified mail, three days af ter the date of mailing, if delivered by a well-recognized overnight courier company, one day af ter dispatch, and if delivered by overnight international mail, four days af ter mailing. Licensee agrees that CoStar may include notices on invoices sent to Licensee by regular mail or email. Pursuant to Section 4 of this Agreement, Licensee may deliver notices of termination to CoStar via email at the following address: cancel@costar.com (mailto:cancel@costar.com). 16. Force Majeure. None of the CoStar Par ties shall have any liability for any damages resulting from any failure to perform any obligation hereunder or from any delay in the performance thereof due to causes beyond CoStar ’s control, including industrial disputes, acts of God or government, public enemy, war, fire, other casualty, failure of any link or connec tion whether by computer or otherwise, or failure of technology or telecommunications or other method or medium of storing or transmit ting the Licensed Product. 17. User Information. Licensee acknowledges that if it creates any set tings, surveys, fields or functions in the Licensed Product or inputs, adds or expor ts any data into or from the Licensed Produc t (collectively, the “User Data”), none of the CoStar Par ties shall have any liability or responsibility for any of such User Data, including the loss, destruc tion or use by third par ties of such User Data. Licensee acknowledges that it is Licensee’s responsibility to make back-up copies of such User Data. For each licensed site, Licensee is allot ted an aggregate amount of 100 megaby tes of storage space in any CoStar Proper ty Professional Licensed Product per Authorized User located at that site. 18. Choice of Law; Jurisdiction. This Agreement shall be construed under the laws of the District of Columbia without regard to choice of law principles. CoStar irrevocably consents to the exclusive jurisdic tion of the federal and state cour ts located in the District of Columbia for the purpose of any action brought against CoStar in connection with this Agreement or use of the DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 11/13 Licensed Produc t. Licensee irrevocably consents to the jurisdiction and venue of the federal and state cour ts located in the District of Columbia, or in any State where Licensee's Authorized Users are located, for purposes of any action brought against Licensee in connection with this Agreement or use of the Licensed Produc t. 19. Miscellaneous. This Agreement contains the entire understanding of the par ties with respect to the Licensed Product and supersedes any prior oral or writ ten statements by Licensee, CoStar, or their respective representatives and documents with respec t to such subject matter; provided, that this Agreement does not supersede any other written license agreement between the par ties unless expressly provided herein. Unless otherwise required by state or federal law, Licensee agrees to keep the terms of this Agreement strictly confidential. Each par ty acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each par ty agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement. The foregoing sentences of this clause shall not limit or exclude any liability for fraud. Licensee agrees that CoStar may send to Licensee and its employees, Authorized Users and Exclusive Contractors communications, including, but not limited to, email communications about new features or products, available real estate listings, product feedback and other marketing content, which the email recipient may unsubscribe at any time. Licensee will comply with all laws related to emails Licensee and /or its employees, Authorized Users and Exclusive Contractors send using the Licensed Produc t, including, but not limited to, the United States’ anti-spam law (CAN- SPAM), European Union’s General Data Protection Regulation (GDPR) and Canada’s anti-spam law (CASL).This Agreement may not be amended, modified or superseded, nor may any of its terms or conditions be waived, unless expressly agreed to in writing by all par ties. If any provision of this Agreement not being of a fundamental nature is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of the Agreement will not be af fected. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision. Licensee acknowledges that in the event of a breach of any of these terms by Licensee, CoStar may suffer irreparable harm and shall be entitled to seek injunctive relief (without the necessity of posting a bond) as well as all other monetar y remedies available at law or in equity. The failure of any par ty at any time to require full performance of any provision hereof will in no manner af fec t the right of such par ty at a later time to enforce the same. Headings are for reference only. The provisions of Sections 2(b), 2(c), 3, 5, 6(d), 7, and 10 through 19 hereof will survive nonrenewal or termination of this Agreement. DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 12/13 Last Revised: March 12, 2020 If you are a current CoStar subscriber and have executed your agreement prior to March 12, 2020 click here (/about /archived-terms-conditions) to access the Terms and Conditions governing your agreement. Request a Demo Call Now Company About CoStar (/home /about) CoStarGroup.com (ht tp://w ww.costargroup.com) Careers (ht tp://costargroup.com /careers) Press Room (ht tp://www.costargroup.com /costar-news) Privacy Notice (/about /privacy-notice) C A: Do Not Sell My Personal Info (/about /do-not-sell-my-personal-information- california-residents) Term of Use (/about /terms-conditions) Help Fight Data Thef t (/about /anti-piracy /) FAQs (/home /about /faq) DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020 Terms and Conditions https://www.costar.com/CoStarTerms-and-Conditions 13/13 Contact Us (/home /about /contact) Social (ht tps://www.facebook.com /CoStarGroup) (ht tps://www.linkedin.com /company /costar- group) (ht tps://twit ter.com /TheCoStarGroup) © 2020. CoStar Realty Information Inc. DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 From:Margarita Cornejo To:Jeffery T. Melching Subject:Agreement Review Request: Information Subscription (License) Agreement with CoStar for CoStar Realty Information Subscription (State of California) Date:Friday, October 16, 2020 4:32:00 PM Attachments:CoStar Terms and Conditions.pdf Proposal 1328507 for City of Menifee_encrypted_.pdf Hello Jeff, Attached for your review is the proposed Information Subscription (License) Agreement with CoStar for CoStar Realty Information Subscription (State of California). This agreement request is from the City’s Economic Development. Can you please review and advise if this is ok to start routing for signatures or will require any changes? Thank you! Margarita Cornejo | Financial Services Manager Finance Department City of Menifee | 29844 Haun Road | Menifee, CA 92586 (*Please note our new location!) Direct: (951) 723-3716 | City Hall: (951) 672-6777 | Fax: (951) 679-2568 mcornejo@cityofmenifee.us Connect with us on social media: | | | *Please note that email correspondence with the City of Menifee, along with attachments, may be subject to the California Public Records Act, and therefore may be subject to disclosure unless otherwise exempt. The City of Menifee shall not be responsible for any claims, losses or damages resulting from the use of digital data that may be contained in this email. DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976 10/16/2020City of Menifee1 4:24PMPage:expstat.rptExpenditure Status Report7/1/2020 through 6/30/2021Periods: 0 through 14General Fund100Account NumberAdjustedAppropriationExpendituresYear-to-date ExpendituresYear-to-date EncumbrancesBalancePrct Used100-4350 Economic Development323,345.00 86,810.08 86,810.08 26.85100-4350-50100 Salaries0.00 236,534.924,800.00 1,600.00 1,600.00 33.33100-4350-50150 Auto Allowance0.00 3,200.001,800.00 600.00 600.00 33.33100-4350-50151 Cell Allowance0.00 1,200.00500.00 0.00 0.00 0.00100-4350-50200 Overtime0.00 500.0020,000.00 5,952.00 5,952.00 29.76100-4350-50220 Part Time0.00 14,048.0025,283.00 6,835.48 6,835.48 27.04100-4350-50300 PERS Retirement0.00 18,447.520.00 369.02 369.02 0.00100-4350-50310 Social Security0.00 -369.024,736.00 1,462.20 1,462.20 30.87100-4350-50320 Medicare0.00 3,273.8063,000.00 16,722.33 16,722.33 26.54100-4350-50400 Section 125 Benefit Plan0.00 46,277.6730,325.00 12,564.26 12,564.26 100.00100-4350-51200 Postage17,760.39 0.35150.00 0.00 0.00 0.00100-4350-51210 Delivery/Courier Svc0.00 150.0021,642.00 0.00 0.00 79.21100-4350-51300 Printing & Duplication17,141.90 4,500.1031,000.00 5,033.99 5,033.99 16.24100-4350-51410 Promotional Materials/Advertising0.00 25,966.0134,200.00 1,255.77 1,255.77 3.67100-4350-51600 Special Dept Exp0.00 32,944.2373,750.00 0.00 0.00 0.00100-4350-51640 Business Incentive Program0.00 73,750.0010,545.00 0.00 0.00 0.00100-4350-51700 Events0.00 10,545.0075,390.00 139.00 139.00 0.18100-4350-51720 Marketing0.00 75,251.002,000.00 0.00 0.00 0.00100-4350-52040 Telephone0.00 2,000.003,700.00 855.00 855.00 23.11100-4350-52200 Membership & Dues0.00 2,845.0016,200.00 879.42 879.42 5.43100-4350-52210 Conference/Mtgs/Mileage0.00 15,320.584,000.00 0.00 0.00 0.00100-4350-52211 Training0.00 4,000.00539,785.46 60,309.23 60,309.23 42.08100-4350-52800 Professional Services166,815.39 312,660.8445,000.00 0.00 0.00 0.00100-4350-52801 Contract Services0.00 45,000.00167,767.00 0.00 0.00 0.00100-4350-59005 Operating Transfer Out - IT Support0.00 167,767.003,974.00 0.00 0.00 0.00100-4350-59010 Operating Transfers Out - Fleet Support0.00 3,974.00Total General Fund1,502,892.46 201,387.78 201,387.78 201,717.68 1,099,787.00 26.82Grand Total1,502,892.46 201,387.78 201,387.78 26.82201,717.68 1,099,787.001Page:DocuSign Envelope ID: 54CEB7FF-6E09-450C-A452-083B2FCBF976