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HomeMy WebLinkAboutTVHS18-003 National Community Land Trust Network dba Grounded Solutions NetworkHomeKeeper
Participation Agreement
THIS PARTICIPATION AGREEMENT (this “Agreement”), effective as of January 1, 2018 (the “Effective
Date”), is made and entered into by and between the National Community Land Trust Network d/b/a
Grounded Solutions Network, a California not-for-profit (“Company”), having a mailing address P.O.
Box 42255, Portland, Oregon 97242, and The Valley Home Store, LLC By and through Eagle County
Housing and Development Authority, it's member (“Participating Organization”), having an address at 25
Mill Loft Suite 200, Edwards, Colorado, 81632.
RECITALS
WHEREAS, the Company is exempt from tax under Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the “Code”);
WHEREAS, in furtherance of the tax-exempt purposes of the Company, the Company provides technical
assistance to participants in the affordable housing industry;
WHEREAS, in furtherance of the tax-exempt purposes of the Company, the Company has developed
Salesforce.com managed packages known collectively as “HomeKeeper”;
WHEREAS, as of the Effective Date, HomeKeeper consists of two packages (each a “HomeKeeper
Package”):
(a) “HomeKeeper for Homeownership,” which is a workflow management system designed to
help participants in the affordable housing industry manage their homeownership programs and track
the impact of their programs in their communities; and
(b) “HomeKeeper for Housing Counseling,” which is a client management system (“CMS”)
designed for use by participants in the Housing Counseling Program, 24 CFR part 214 (the “Housing
Counseling Program”), of the United States Department of Housing and Urban Development (“HUD”)
that automates portions of the counseling processes, including data transfers to HUD’s Housing
Counseling System;
WHEREAS, in furtherance of the tax-exempt purposes of the Company, the Company has also developed
a database that will be used to aggregate and analyze data collected through HomeKeeper for
Homeownership and generate sector-wide performance reports that are based on such data (the
“HomeKeeper National Data Hub”);
WHEREAS, in furtherance of the tax-exempt purposes of the Company, the Company has entered into
similar types of agreements with affordable housing industry participants who wish to utilize
HomeKeeper to manage their homeownership programs and/or support their participation in the
Housing Counseling Program, track the impact of their programs in their communities, and/or
contribute data to the HomeKeeper National Data Hub in order to improve the depth and quality of the
industry data available to participants (collectively, “HomeKeeper Participants”);
WHEREAS, the Participating Organization wishes to become a HomeKeeper Participant on the terms and
subject to the conditions set forth herein;
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows.
AGREEMENT
1. HomeKeeper Participation. Subject to the payment of the fees described in Section 5 hereof,
the Participating Organization will, upon the execution of this Agreement, become a HomeKeeper
Participant with respect to the HomeKeeper Package(s) specified in Exhibit A hereto and will be entitled
to receive the benefits described in Section 2 hereof with respect to such HomeKeeper Package(s). As
used herein, the term “Homeownership HK Participant” refers to a HomeKeeper Participant authorized
to use HomeKeeper for Homeownership, and “Housing Counseling HK Participant” refers to a
HomeKeeper Participant authorized to use HomeKeeper for Housing Counseling.
2. Benefits Available to Participants. As a HomeKeeper Participant, the Participating Organization
will be granted access to and authorized to use a standardized, object code version of the applicable
HomeKeeper Package(s), have the opportunity to provide input to the Company with regard to the
standardization of national, affordable housing reporting metrics, collaborate on future updates and
improvements to HomeKeeper and, if the Participating Organization is a Homeownership HK Participant,
have access to the sector-wide performance reports that are generated by the HomeKeeper National
Data Hub.
(a) Managed Software Package.
(i) Software. HomeKeeper will be available to the Participating Organization
through Salesforce.com.
(ii) Maintenance. The Company will maintain HomeKeeper by:
a. Performing bug fixes as needed within a reasonable timeframe; and
b. Updating the software to include new features and functionality from
time to time at the Company’s discretion based on input from
HomeKeeper Participants.
(b) Support. The Company will support HomeKeeper, and provide training to HomeKeeper
Participants, as described on the then current Training and Support Services Schedule
posted on the Company’s website at MyHomeKeeper.org, as such schedule may be
updated and modified from time to time by the Company (the “Training / Support
Schedule”). Although the Company wishes to provide a seamless user experience to
HomeKeeper Participants, it may be necessary or desirable for HomeKeeper Participants
to interact directly with the Company’s third party technology service providers from
time to time to obtain certain support services as described on the Training / Support
Schedule. In addition, the Participating Organization understands and agrees that, in the
event that fees collected from HomeKeeper Participants are insufficient to cover all
training and support costs, the Company may scale training and support back to a level
that is achievable with available funding. Except as noted on the Training / Support
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Schedule, the cost of third party support is included in the fees that are payable to the
Company pursuant to Section 5.
(c) HomeKeeper National Data Hub. HomeKeeper for Homeownership is designed to
transfer data from certain data fields selected by the Company from each HomeKeeper
for Homeownership user account to the HomeKeeper National Data Hub, where the
data will be aggregated and analyzed and ultimately used as a basis for industry sector
performance reports in furtherance of the Company’s tax-exempt purposes. Additional
data may be collected through surveys of Homeownership HK Participants conducted by
the Company from time to time (“Program Surveys”); Program Survey data will also be
stored in and analyzed through the HomeKeeper National Data Hub. The Company will
furnish the Participating Organization with a copy of, or access to, all reports containing
aggregated affordable housing industry data that are generated by the Company
through the HomeKeeper National Data Hub which are intended for general distribution
to Homeownership HK Participants. These reports may include measurements of the
overall performance and affordability of the affordable homeownership model, and the
impact of the affordable homeownership program model as demonstrated by return on
community investment, homeowner mobility and foreclosure rates. For clarity, the
benefits described in this Paragraph (b) shall apply only if the Participating Organization
is a Homeownership HK Participant.
(d) HomeKeeper Participant Meetings. The Company will organize a meeting of
HomeKeeper Participants at least once each year to discuss potential improvements to
HomeKeeper, the reports generated through the HomeKeeper National Data Hub and
other topics that may be of interest to HomeKeeper Participants. The Company will
schedule such meetings, prepare and distribute materials that will be referenced during
the meetings, and host the meetings.
3. Responsibilities of Participating Organization. Subject to Paragraph (f) below, as a condition to
receiving the benefits available to HomeKeeper Participants described in Section 2 above, the
Participating Organization shall fulfill the responsibilities set forth in this Section 3.
(a) HomeKeeper Package Features. The Participating Organization shall limit its use of
HomeKeeper to those features of the HomeKeeper Package(s) with respect to which it is
a HomeKeeper Participant under this Agreement (e.g., if the Participating Organization
is a Homeownership HK Participant only, it shall not use the features that are specific to
HomeKeeper for Housing Counseling, and vice versa).
(b) Cooperation. The Participating Organization shall use its best efforts to cooperate with
the Company and third parties identified by the Company as may be reasonably
necessary so as to enable the Company to facilitate: (i) the activities of HomeKeeper
Participants with respect to HomeKeeper; and (ii) the implementation, maintenance and
support of HomeKeeper, including identification of a primary contact for
implementation, maintenance and support. If the Participating Organization is a
Homeownership HK Participant, such cooperation shall include facilitating the
implementation, maintenance and support of the HomeKeeper National Data Hub as
well as the data collection, aggregation, reporting and analytics for the HomeKeeper
National Data Hub; furnishing information and materials regarding the Participating
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Organization’s affordable homeownership programs and related transactions to the
Company in a timely, accurate and complete fashion; entering all current and past
property and homebuyer files for then current homeowners; completing all required
data fields as indicated within HomeKeeper for Homeownership; making Participating
Organization’s personnel reasonably available to the Company upon request; and
completing Program Surveys upon request.
(c) Salesforce.com Account and Additional Technology Services. The Participating
Organization must have a Salesforce.com account in order to access and use
HomeKeeper. The Participating Organization is solely responsible for establishing the
account and paying the fees charged by Salesforce.com in connection with the account,
including set up and account administration fees (if any). One of the Salesforce.com user
licenses acquired by the Participating Organization must be allocated to the Company so
that the Company may access the Participating Organization’s Salesforce.com account in
order to transfer data to the HomeKeeper National Data Hub and collection of usage
data. If Salesforce.com or any other third-party offers products or services that are not
specified on the Training / Support Schedule to the Participating Organization and the
Participating Organization elects to purchase such products and services, the
Participating Organization is solely responsible for paying the fees charged by
Salesforce.com or any third-party with respect to such products and services.
(d) HomeKeeper National Data Hub. If the Participating Organization is a Homeownership
HK Participant, it agrees to contribute the data described in Section 2(b) above to the
HomeKeeper National Data Hub throughout the Term of this Agreement. The Company
will have a non-exclusive, unrestricted, fully paid up, transferable, sub-licensable,
perpetual right and license to use, distribute and create derivative works of all such data
contributed by or on behalf of the Participating Organization to the HomeKeeper
National Data Hub (collectively, “Participating Organization HomeKeeper National Data
Hub Data”), provided that the Company will not distribute or otherwise disclose
Participating Organization HomeKeeper National Data Hub Data that has not been
aggregated (“Raw Data”), or performance metrics based on Participating Organization
HomeKeeper National Data Hub Data that are specific to the Participating Organization,
to any unaffiliated third party unless the third party has entered into an agreement with
the Company containing protections against the unauthorized disclosure of the Raw
Data or organization-specific performance metrics. The foregoing license shall survive
the termination of this Agreement for any reason. For the avoidance of doubt, following
the termination of this Agreement for any reason the Company shall have the right
under the foregoing license to retain and use, distribute and create derivative works of
all Participating Organization HomeKeeper National Data Hub Data collected prior to the
termination of this Agreement; however, the Participating Organization shall not have
an ongoing obligation to continue to contribute additional Participating Organization
HomeKeeper National Data Hub Data following the termination of this Agreement.
(e) HomeKeeper Usage Data. The Participating Organization acknowledges and agrees that
the Company, in its discretion, may collect and use data concerning the frequency,
volume and types of uses of HomeKeeper by the Participating Organization and other
HomeKeeper Participants (“HomeKeeper Usage Data”); provided, however, the
Company will not distribute or otherwise disclose HomeKeeper Usage Data that is
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specific to the Participating Organization to any unaffiliated third party unless the third
party has entered into an agreement with the Company containing protections against
the unauthorized disclosure of such HomeKeeper Usage Data.
(f) Exceptions. The Company recognizes that, due to the nature of their organization or
other circumstances, certain HomeKeeper Participants may not be in a position to fulfill
all of the responsibilities set forth in this Section 3. If requested by the Participating
Organization, the Company, in its discretion, may agree to certain exceptions to these
responsibilities for the Participating Organization and, in light of such exceptions, may
elect to exclude or limit certain of the benefits described in Section 2 above that will be
made available to the Participating Organization. Any such exceptions, exclusions and
limitations will be as agreed in writing by the parties and attached as an Exhibit to this
Agreement.
4. Term and Termination.
(a) Term. The term of this Agreement will commence on the Effective Date and will
continue in effect for a one year term (the “Initial Term”). This Agreement will
automatically renew for additional, consecutive one (1) year periods (each, a “Renewal
Term” and, together with the Initial Term, the “Term”), until such time as the Company
or the Participating Organization notifies the other party of its intent not to renew or
this Agreement is otherwise terminated as described in subsection (b) below.
(b) Termination. Either party may terminate this Agreement:
(i) without cause by providing thirty (30) days prior written notice to the other
party;
(ii) immediately at the conclusion of a thirty (30) day cure period, if the other party
breaches any material term of this Agreement (including any payment
obligation), and the breach remains uncured for a period of thirty (30) days
following written notice thereof; or
(iii) immediately upon written notice to the other party, if the other party shall: (a)
apply for or consent to the appointment of a receiver, trustee, or liquidator of
all or a substantial portion of its assets; (b) file a voluntary petition in
bankruptcy, or admit in writing its inability to pay its debts as they come due; (c)
make a general assignment for the benefit of creditors; (d) file a petition or an
answer seeking reorganization or arrangement with creditors or take advantage
of any insolvency law or file an answer admitting the material allegations of a
petition filed against it in any bankruptcy, reorganization or insolvency
proceedings; or (e) if an order, judgment, or decree shall be entered by any
court of competent jurisdiction, on the application of a creditor, adjudicating it a
bankrupt or insolvent or approving a petition seeking reorganization of it or
appointing a receiver, trustee, or liquidator of all or a substantial portion of its
assets and such order, judgment, or decree shall continue unstayed and in
effect for a period of at least sixty (60) consecutive days.
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(c) Effect of and Obligations upon Termination. Subject to the Participating Organization’s
obligation to pay all fees then due and owing to the Company, and the parties
continuing obligations referenced in Section 13(l), upon the termination of this
Agreement: (i) the rights and obligations of the parties under this Agreement will cease
(including, but not limited to, the Participating Organization’s right to enjoy the benefits
described in Section 2 hereof, and the Company’s right to collect additional data relating
to the Participating Organization’s programs for HomeKeeper National Data Hub),
provided that the rights and licenses under Section 3(d) and 3(e) above shall survive the
termination of this Agreement for any reason; and (ii) each party will promptly return or
destroy all Confidential Information (defined below) of the other party that is then in its
possession or control other than any Confidential Information that is the subject of any
right or license that survives the termination of this Agreement. In addition, in the
event that either party terminates this Agreement without cause pursuant to the last
sentence of Section 4(b) above or the Participating Organization terminates this
Agreement pursuant to Section 4(b)(iii) above, the Company will return to the
Participating Organization a pro rata portion of the Participation Fee for the then-
current Term (i.e. based on the percentage of the 12-month period remaining after
termination); otherwise, no fees or expenses paid or payable under this Agreement shall
be subject to refund or return.
5. Financial Terms.
(a) Fees. The Participating Organization shall pay to the Company: (i) a one-time
enrollment fee (the “Enrollment Fee”); and (ii) a recurring, participation fee (the
“Participation Fee”), in each case in the amounts specified in the schedule attached
hereto and incorporated herein by this reference as Exhibit A. The Enrollment Fee and
the Participation Fee for the Initial Term shall be due and payable on or before the
Effective Date of this Agreement. Participation Fees may be increased as of the
commencement of each Renewal Term in the Company’s discretion upon at least one
hundred twenty (120) days’ written notice to the Participating Organization. If the
Participating Organization objects to any increase, the Participating Organization may
elect to terminate this Agreement without cause pursuant to Section 4(b)(i). The
Company will use reasonable efforts to send an invoice reminding the Participating
Organization of the commencement of a new Term and setting forth the Participation
Fee for the new Term at least forty-five (45) days before the commencement of the new
Term. The Participation Fee attributable to each Renewal Term following the Initial
Term shall be due and payable on the later to occur of (i) the commencement of the
new Term or (ii) thirty (30) days after receipt of an invoice from the Company setting
forth the Participation Fee for the new Term. Notwithstanding anything to the contrary
contained in this Agreement, Participating Organization shall have no obligations under
this Agreement after, nor shall any payments be made to Company in respect of any
period after December 31 of any year, without an appropriation therefor by the
Participating Organization in accordance with a budget adopted by the Board of the
Participating Organization in compliance with Article 25, title 30 of the Colorado Revised
Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR
Amendment (Colorado Constitution, Article X, Sec. 20).
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(b) Invoices. The Company will submit invoices to the Participating Organization for all fees
authorized hereunder. All invoices will be submitted to the physical or electronic
address or addresses specified by the Participating Organization from time to time.
Except as otherwise provided in this Agreement, invoices shall be payable by the
Participating Organization within thirty (30) days of its receipt of the invoice. At the
Company’s option, payments may be made by check or by electronic funds transfer to
the Company’s bank account. In the event of an overpayment, the Company shall
promptly issue a refund to the Participating Organization by means acceptable to both
parties.
6. Representations, Warranties and Covenants.
(a) By the Company. The Company makes the following representations, warranties and
covenants to the Participating Organization, in each case as of the Effective Date of this
Agreement and, where the context requires, on a continuous and uninterrupted basis
throughout the Term of this Agreement.
(i) Authority. The Company is duly formed, validly existing and in good standing in
the jurisdiction in which it was incorporated. The Company has the legal power
and authority to conduct its business and operations as currently conducted and
as proposed to be conducted, and to execute, deliver and perform this
Agreement.
(ii) Compliance with Laws. The Company is in compliance, and will comply, with all
federal, state and local laws, rules and regulations applicable to its business and
operations. The Company does not, and will not, discriminate on the basis of
race, color, national origin, age, sex, sexual orientation, marital status, creed,
religion, citizenship, ancestry, political affiliation, or any other protected class.
(iii) Insurance. At all times during the Term of this Agreement and, to the extent
that any insurance is carried on a claims made basis, for such period thereafter
that claims may be legally made with respect to occurrences during the Term,
the Company shall maintain insurance against all risks of the kinds customarily
insured against, in amounts customarily carried, by entities engaged in a similar
business in the same geographical area as the Company.
(b) By the Participating Organization. The Participating Organization makes the following
representations, warranties and covenants to the Company, in each case as of the
Effective Date of this Agreement and, where the context requires, on a continuous and
uninterrupted basis throughout the Term of this Agreement.
(i) Authority. The Participating Organization is duly formed, validly existing and in
good standing in the jurisdiction in which it was incorporated. The Participating
Organization has the legal power and authority to conduct its business and
operations as currently conducted and as proposed to be conducted, and to
execute, deliver and perform this Agreement.
(ii) Compliance with Laws. The Participating Organization is in compliance, and will
comply, with all Federal, state and local laws, rules and regulations applicable to
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its business and operations. In furtherance, and not in limitation of, the
foregoing, the Participating Organization acknowledges and agrees that it is
solely responsible for obtaining all third party consents that may be required by
applicable privacy laws in connection with the collection, retention and
dissemination of data relating to its use of HomeKeeper. The Participating
Organization does not, and will not, discriminate on the basis of race, color,
national origin, age, sex, sexual orientation, marital status, creed, religion,
citizenship, ancestry, political affiliation, or any other protected class.
(iii) Insurance. At all times during the Term of this Agreement and, to the extent
that any insurance is carried on a claims made basis, for such period thereafter
that claims may be legally made with respect to occurrences during the Term,
the Participating Organization shall maintain insurance against all risks of the
kinds customarily insured against, in amounts customarily carried, by entities
engaged in a similar business in the same geographical area as the Participating
Organization.
(iv) Database Integrity. The integrity of the HomeKeeper National Data Hub and the
reports generated through the HomeKeeper National Data Hub are entirely
dependent upon the reliability and accuracy of the data furnished by
Homeownership HK Participants through HomeKeeper for Homeownership and
Program Surveys. Accordingly, the Participating Organization represents and
warrants to the Company that any data it furnishes through HomeKeeper for
Homeownership is, and will be, accurate, up to date and complete. The
Participating Organization covenants that it will update the data that it stores in
HomeKeeper for Homeownership on at least a quarterly basis, and that it will
notify the Company promptly upon its discovery of any errors in data previously
uploaded to HomeKeeper for Homeownership.
7. Confidentiality. If a party to this Agreement (the “receiving party”) obtains access to Confidential
Information (defined below) of the other party to this Agreement (the “disclosing party”), the receiving
party agrees to use the Confidential Information only as reasonably necessary to perform its obligations
under this Agreement. The receiving party shall use at least the same degree of care to protect the
Confidential Information of the disclosing party from unauthorized disclosure or use that the receiving
party uses to protect its own Confidential Information, but not less than reasonable care.
The foregoing restrictions on the use and disclosure of Confidential Information shall not apply: (a) if the
information was previously known to the receiving party free of any obligation to keep it confidential
and through no wrongful act of the receiving party; (b) if the information is available to the public
through no wrongful act of the receiving party; (c) if the information is independently developed by the
receiving party without reference to the Confidential Information of the disclosing party; (d) if the
information is subject to disclosure pursuant to applicable law or regulation, subpoena, or judicial order,
provided that the receiving party has given the disclosing party sufficient prior notice of such order or
requirement so as to permit the disclosing party a reasonable opportunity to seek a protective order or
other appropriate remedy; (e) if the information is disclosed by the receiving party to: (i) its legal and
financial advisors who have a need to know the information in order to provide legal or financial advice
to the receiving party, or (ii) its officers, directors, employees, independent contractors and agents who
have a need to know the information in order to support the receiving party in performing its
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obligations hereunder, provided, that such advisors and personnel are under a confidentiality obligation
to the receiving party that is similar in scope to the confidentiality obligation described hereunder; and
(f) in the case of information disclosed by the Participating Organization, if the information is: (i)
Participating Organization HomeKeeper National Data Hub Data (subject to the restrictions set forth in
Section 3(d) above regarding Raw Data and performance metrics), (ii) HomeKeeper Usage Data (subject
to the restrictions set forth in Section 3(e) above regarding HomeKeeper Usage Data that is specific to
the Participant Organization); (iii) information disclosed in connection with HomeKeeper Participant
activities (including Program Surveys), or (iv) information disclosed for the general purpose of furthering
industry data collection or market research, or for the purpose of participating in other collaborative
learning activities. For the avoidance of doubt, subject to the restrictions set forth in Sections 3(d) and
3(e) above, the parties expressly agree that performance reports and analyses that are based on data
processed by or through HomeKeeper or HomeKeeper National Data Hub, or other similar Company-
sponsored applications or platforms, are not confidential and may be disclosed by the Company to the
public in furtherance of its mission and that Raw Data collected through the HomeKeeper National Data
Hub and HomeKeeper Usage Data may be disclosed to The Urban Institute and other third parties for
further industry research and analysis.
The term “Confidential Information” means: (a) information that is not a matter of public knowledge or
which is specifically designated as confidential, including, but not limited to, business development
strategies, corporate assessments and plans, product pricing, financial and statistical information,
accounting information, software, business processes, designs, financial and other business models, and
algorithms; (b) non-public personally identifying information subject to protection under federal or state
privacy laws; and (c) compilation or summary information or data that contains or is based on
information of the type described in subsections (a) or (b).
8. Ownership. As between the Company and the Participating Organization, the Company will own
all Intellectual Property Rights in: (a) HomeKeeper, including all source code, object code,
documentation, training manuals and other materials relating thereto; (b) all reports created or
generated through the HomeKeeper National Data Hub and other similar Company-sponsored platforms
that are prepared by or on behalf of the Company for use by Homeownership HK Participants and/or
Housing Counseling HK Participants generally (“HomeKeeper Reports”); (c) the selection, arrangement,
compilation and original expression by the Company of all data (including Participating Organization
HomeKeeper National Data Hub Data) that is contained in the HomeKeeper National Data Hub at any
time, provided that the Participating Organization will continue to own all Intellectual Property Rights in
the individual data elements that comprise the Participating Organization HomeKeeper National Data
Hub Data subject to the Company’s license thereto under Section 3(c) above; and (d) HomeKeeper
Usage Data, including the selection, arrangement, compilation and expression thereof. The Participating
Organization will have a non-exclusive, fully paid up, non-transferable, perpetual right and license to use
any HomeKeeper Report furnished by the Company to the Participating Organization under this
Agreement. Notwithstanding anything to the contrary in this Agreement or in any Prior Agreement (as
defined in Section 13(c) below): (a) the Participating Organization’s right to access and use HomeKeeper
(including any software code and related documentation comprising HomeKeeper) is limited to the then
current object code version of the HomeKeeper Package(s) with respect to which it is a HomeKeeper
Participant under this Agreement that is made generally available to HomeKeeper Participants by the
Company, and such right of access and use of Homekeeper shall terminate immediately upon expiration
or termination of this Agreement for any reason; (b) unless otherwise agreed in writing by the Company
on a case-by-case basis, the Participating Organization will have no right to access or use the source
code for HomeKeeper or any portion thereof; and (c) the Participating Organization may use
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HomeKeeper solely in accordance with the documentation therefor provided by the Company to the
Participating Organization and shall not take any actions with respect to HomeKeeper that adversely
impacts the Company’s ability to support HomeKeeper or collect HomeKeeper Usage Data or data for
the HomeKeeper National Data Hub. The term “Intellectual Property Rights” means copyrights, patents,
trademarks, service marks, trade secrets, moral rights and all other proprietary and intellectual property
rights of any nature whatsoever.
9. Publicity. The Participating Organization shall not use the Company’s name, logos, or trademarks
in advertisements, marketing materials, or other publications of any kind without the prior written
consent of the Company. The Company shall not use the Participating Organization’s name, logos, or
trademarks in any advertisements, marketing materials, or other publications of any kind without the
prior written consent of the Participating Organization, provided, however, the Participating
Organization hereby expressly consents to the disclosure of its use of HomeKeeper to the public, and the
inclusion of its name, logos and trademarks in industry publications and sector performance reports for
attribution and in marketing materials relating specifically to HomeKeeper, the HomeKeeper National
Data Hub and HomeKeeper Participants.
10. Intentionally Omitted.
11. Disclaimer. The Participating Organization acknowledges that the Company is not in the business
of developing technology or providing technology support to end users and has developed and operates
HomeKeeper solely as a public benefit in furtherance of its mission to support affordable
homeownership programs, housing counseling assistance, and related industry best practices. The
Participating Organization further acknowledges that the Company is not responsible for any products
or services provided by independent, third party service providers. Further, notwithstanding anything to
the contrary in this Agreement, the Participating Organization acknowledges and agrees that the
Company shall have no obligation to be or remain on HUD’s list of CMS compliant vendors or otherwise
in compliance with HUD specifications and requirements for Client Management Systems under the
Housing Counseling Program. ACCORDINGLY, THE COMPANY MAKES NO REPRESENTATION OR
WARRANTY REGARDING THE SUITABILITY OF HOMEKEEPER FOR THE PARTICIPATING ORGANIZATION’S
BUSINESS, THE ACCURACY AND COMPLETENESS OF ANY INFORMATION OR MATERIALS MADE
AVAILABLE TO THE PARTICIPATING ORGANIZATION UNDER THIS AGREEMENT, COMPLIANCE WITH HUD
REQUIREMENTS, OR THE TECHNOLOGY OR TECHNOLOGY SERVICES PROVIDED TO THE PARTICIPATING
ORGANIZATION UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE COMPANY EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
12. Limitation of Liability. IN NO EVENT SHALL THE PARTICIPATING ORGANIZATION, THE COMPANY,
OR ANY THIRD PARTY SERVICE PROVIDERS BE LIABLE TO ONE ANOTHER FOR DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES
OF ANY KIND OR NATURE RESULTING FROM, ARISING OUT OF, OR INCIDENTAL TO THIS AGREEMENT
UNDER ANY LEGAL THEORY WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND REGARDLESS OF WHETHER OR NOT THE DAMAGES WERE REASONABLY FORESEEABLE.
13. Miscellaneous.
(a) Independence of Parties; No Joint Venture. In carrying out their respective duties
hereunder, each party shall at all times be independent of the other. The Company’s
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personnel and the Participating Organization’s personnel shall be, and shall remain at all
times, employees or independent contractors of the Company or the Participating
Organization, respectively, and shall not be deemed to be employees or independent
contractors of the other party under any circumstances for any purpose whatsoever.
Each party is responsible for the payment of wages and other amounts due, and the
provision of all benefits required by law, to its personnel. Nothing in this Agreement
shall constitute or be construed as a partnership, joint venture, or other similar
relationship between the Company and the Participating Organization.
(b) Governing Law. This Agreement shall be governed by the laws of the State of Colorado
without regard to its conflicts of law provisions. Both parties hereby consent to the
personal jurisdiction of the courts of the State of Colorado, and agree that any action
related to or arising under this Agreement shall exclusively be brought in a state or
federal court with appropriate subject matter jurisdiction in Eagle County 5th judicial
district. Each party waives any objection it has or may have in the future with respect to
the previous sentence.
(c) Entire Agreement. This Agreement, including all documents incorporated herein by
reference, evidences the entire agreement of the parties, and supersedes all prior
agreements and representations of the parties, whether written or oral, with respect to
the subject matter hereof. If the Company and the Participating Organization entered
into a HomeKeeper Membership Agreement or other similar agreement (each, a “Prior
Agreement”) prior to the Effective Date of this Agreement, the parties agree that each
such Prior Agreement (including all licenses granted to the Participating Organization
thereunder) is hereby terminated, effective as of the Effective Date of this Agreement,
and that each such Prior Agreement is superseded and replaced in its entirety by the
terms and conditions hereof.
(d) Amendments. This Agreement may be amended or modified only by a specific written
instrument signed by the Company and the Participating Organization.
(e) No Implied Waiver. No failure to contest a breach of any term of this Agreement shall be
deemed to waive such breach, unless such waiver shall be in a specific written
instrument signed by the waiving party. Any waiver of a particular breach of this
Agreement shall not constitute a waiver of any other different or subsequent breach.
(f) Severability. If any term or provision of this Agreement is held to be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each
other term or provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
(g) Notices. All notices required or permitted to be given hereunder shall be in writing. All
such notices shall be: (i) personally delivered; (ii) sent by confirmed facsimile; or (iii) sent
by mail as follows:
If to the Company: If to the Participating Organization:
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P.O. Box 42255
Portland, Oregon 97242
25 Mill Loft Suite 200
Edwards, Colorado 81632
Facsimile: 503.493.1004 Facsimile: (866)611-7237
Attn: Rachel Silver, Chief Operating
Officer
Copy to: Tiffany Eng, Program Director
Attn: Kim Bell Williams, Housing Director
All such notices shall be deemed to have been given on the date of receipt or refusal if
delivered personally, by facsimile, or by overnight carrier, or three (3) days after the
date of posting if transmitted by mail. Either party may change its address or contact by
providing written notice of the change to the other party as specified herein.
(h) Assignments. Either party may not assign its rights or obligations under this Agreement
to any other party without the other party’s prior written consent. This Agreement shall
be binding on and shall inure to the benefit of the successors and permitted assigns of
the Company and the Participating Organization.
(i) Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
(j) Form of Signature. This Agreement may be executed in writing or by electronic
(including digital) means; electronic signatures that are adopted by a person with the
intent to sign this Agreement shall be legally effective and enforceable against the party
represented by such person.
(k) Name and Trademark Usage. If, during the term of this Agreement, the Company re-
brands the managed package known as HomeKeeper or the database known as the
HomeKeeper National Data Hub, the terms HomeKeeper and HomeKeeper National
Data Hub, and all other terms comprised of, or defined with reference to, the word
“HomeKeeper” hereunder, shall be deemed to instead be comprised of, or defined with
reference to, the replacement name(s) and/or mark(s) designated by the Company,
without any further action on the part of the parties hereto.
(l) Survival. Any provisions of this Agreement that contemplate their continuing
effectiveness, including, but not limited to, Sections 3(c), 3(d), 3(e), 4(c), 5(b), 7, 8, 9, 10,
11, 12, and 13, shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the Company and the Participating Organization, intending to be legally bound,
have executed this Agreement, effective as of the Effective Date.
The Company: National Community Land
Trust Network d/b/a Grounded Solutions
Network
The Participating Organization: The Valley Home
Store, LLC By and through Eagle County Housing and
Development Authority, it's member
By: _____________________________
By: _______________________________
Name: Tiffany Eng
Name: Kim Bell Williams
Title: Program Director, HomeKeeper Title: Executive Director
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EXHIBIT A
FEE SCHEDULE
Initial Term:
For the period starting: 1/1/2018 through: 12/31/2018
HomeKeeper Packages:
The Participating Organization shall become a HomeKeeper Participant during the Term with respect to the
following HomeKeeper Package(s):
HomeKeeper for Homeownership
Enrollment Fee:
$7,000 (Not due - Participating Organization has already paid at enrollment in 2016)
Participation Fee – Initial Term:
$10,000
This participation fee shall not increase in 2019 or 2020.
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