Loading...
HomeMy WebLinkAbout09-12-16 CC Mtg - C6. Contract Agrmnt - Brycer - Fire Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Josh Waldo, Fire Chief Chris Kukulski, City Manager SUBJECT: Contract Agreement with Brycer LLC to provide electronic records submission for fire inspection reports. MEETING DATE: September 12, 2016 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize City Manager to sign contract with Brycer LLC to provide electronic records submission for fire inspection reports. BACKGROUND: The Compliance Engine is a simple, web-based service for Fire Prevention Bureaus to track and drive code compliance, reduce false alarm activity, and provide safer communities through third party inspection reporting and maintenance. The Fire Department currently receives paper reports from contractors who provide test, maintenance, and inspection services on fire alarms, sprinkler systems, and commercial cooking hoods as required by the fire code. Brycer LLC provides an electronic submission service where contractors submit their reports and the reports are then forwarded to the Fire Department in an electronic format which will improve efficiency and free up time for Fire Inspectors to perform other task with the reduction in data entry time. There is no charge for this service to the City as the contractors pay a twelve dollar fee to Brycer LLC for each report submission. Brycer will also provide electronic notification of system deficiencies to the Fire Department as well as reminders to business owners of systems that are due for service. This service has been reviewed and approved by both City Information Technology and City Legal departments. ALTERNATIVES: As suggested by the City Commission FISCAL EFFECTS: None Attachments: Contract Agreement Brycer LLC Report compiled on: August 29, 2016 69 2232885/3/13399.000 BRYCER, LLC 4355 Weaver Parkway Suite 330 Warrenville, IL 60555 July 25, 2016 Bozeman Fire Department 34 N Rouse Ave Bozeman, MT 59715 Attn: Fire Chief Josh Waldo Re: “The Compliance Engine” Dear: Josh Waldo We look forward to providing you with “The Compliance Engine” (the “Solution”). This proposal letter provides the basic terms by which Brycer, LLC (“Brycer”) will provide you, Bozeman Fire Department(“Client”), with the Solution. The use of the Solution and all matters between Brycer and Client will be subject to the standard “Terms and Conditions” attached to this proposal as Exhibit A. The basic terms are as follows: 1. Term: Brycer will provide Client with the Solution for three years, commencing _________________ (the “Initial Term”). Thereafter, the Term shall automatically renew for successive three year period unless terminated by Brycer or Client in writing at least 90 days prior to the expiration of the then current Term (each, a “Renewal Term” and together with the Initial Term, the “Term”). Following the expiration or termination of the Term (as provided in the Terms and Conditions), Client shall stop using the Solution; provided, however, Brycer shall make available, and Client shall have the right to download, Client’s data from the Solution for a period of 60 days after the expiration or termination of the Term. Client shall have the right to terminate this agreement upon giving 90 days written notice to Brycer. 2. Fees: Client shall not pay any fees for use of the Solution. Brycer will collect all fees due and payable by third party inspectors in connection with activities relating to the Solution. 3. Brycer Responsibilities: During the Term, Brycer shall be responsible for the following in connection with Client’s use of the Solution:  Availability. Brycer shall make the Solution available to Client as set forth on Exhibit B. The maintenance schedule and minimum service levels for the Solution are set forth on Exhibit B.  Service Level. Brycer shall provide commercially reasonable levels of customer service with respect to the Solution to all third parties who transact business with Client and access the Solution.  Backup. Brycer shall backup the database used in connection with the Solution to a separate server located in the United States within the same web hosting firm which the Solution is being hosted on a real time basis. Upon request by Client (which can be no more than once a month) or made prior to or within 60 days after the effective date of termination of the Term, Brycer will make available to Client a complete and secure (i.e. 70 2232885/3/13399.000 encrypted and appropriately authenticated) download file of Client data in XML format including all schema and attachments in their native format. Brycer shall maintain industry standard administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client data. Brycer shall not (a) modify Client data or (b) disclose Client data except as required by law.  Retention of Information. Brycer will maintain all information entered into the database by third party inspectors for at least five (5) years from the time such information is entered into the database.  Notices. Brycer will be responsible for generating and delivering the following notices to third parties in connection with the Solution: (a) reminders of upcoming inspections that are due; (b) notices that an inspection is past due; and (c) notices of completed inspection reports which contain one or more deficiencies.  Call Center Phone calls by Brycer on behalf of the Client to the property for EACH life-safety system overdue for service based on dates automatically tracked within the TCE database. Brycer is not an agent of the Client and all scripts for the overdue calls will be approved by the Client.  Updates and Enhancements. In the event Brycer releases any updates, corrections, or enhancements to the Solution during the Term, Brycer shall promptly provide such updates or corrections to Client free of any charge or fee. 4. Client Responsibilities: During the Term, Client shall be responsible for the following in connection with Client’s use of the Solution:  Operating System. Client shall be solely responsible for providing a proper operating environment, including computer hardware or other equipment and software, for any portion of the Solution installed on the Client’s equipment (the “Client Access Software”) and for the installation of network connections to the Internet. In addition to any other Client Access Software requirements, Client must use version Internet Explorer 11.0, Edge, Firefox version 37, Chrome 40 or Safari 7.1 (or more recent versions), in addition to having a .pdf reader installed on machines to view attachments.  Training. Client shall allow Brycer at Client’s facilities to train all applicable personnel of Client on the use of the Solution.  Information. Client shall promptly provide Brycer with all appropriate information necessary for Brycer to create the database for the Solution, including without limitation: (a) all commercial building addresses within the City of Bozeman’s jurisdiction for Brycer’s initial upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion.  Enforcement. Client shall take all actions necessary to require in writing (e.g. resolution, ordinance, fire policy, code amendment) the use of the Solution by third party inspection companies.  Reports. Client will require all compliant and deficient test results to be submitted. 5. Ownership of Data. Client owns all the data provided by Client and received from third party contractors for Client. Brycer shall maintain industry standard administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client’s data. Please acknowledge your acceptance of this proposal and our standard Terms and Conditions by counter-signing this proposal below. We look forward to a long-term and mutually beneficial relationship with you. 71 2232885/3/13399.000 Brycer, LLC By: Its: President Acknowledged and Agreed to this ___ day of ___________, 20____: [CLIENT] By: Its: 72 2232885/3/13399.000 Exhibit A Terms and Conditions Any capitalized terms not defined in these Terms and Conditions shall have the meaning assigned to it in that certain Letter Agreement attached hereto by and between Brycer, LLC and Client (the “Agreement). 1. Restrictions on Use. Client shall not copy, distribute, create derivative works of or modify the Solution in any way. Client agrees that: (a) it shall only permit its officers and employees (collectively, the “Authorized Users”) to use the Solution for the benefit of Client; (b) it shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of the Solution; (c) it shall not sell, resell, rent or lease the Solution; (d) it shall not use the Solution to store or transmit infringing or otherwise unlawful or tortious material, or to store or transmit material in violation of third party rights; (e) it shall not interfere with or disrupt the integrity or performance of the Solution or third-party data contained therein; and (f) it shall not reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Solution. Client is responsible for all actions taken by the Authorized Users in connection with the Solution. 2. Proprietary Rights. All right, title and interest in and to the Solution and any and all derivative works or modifications thereof (the “Derivative Works”), and any accompanying documentation, manuals or other materials used or supplied under this Agreement or with respect to the Solution or Derivative Works (the “Documentation”), and any reproductions works made thereof, remain with Brycer. Client shall not remove any product identification or notices of such proprietary rights from the Solution. Client acknowledges and agrees that, except for the limited use rights established hereunder, Client has no right, title or interest in the Solution, the Derivative Works or the Documentation. 3. Independent Contractor. Nothing in the Agreement may be construed or interpreted as constituting either party hereto as the agent, principal, employee or joint venturer of the other. Brycer is an independent contractor. Neither party has the authority to bind or obligate the other party and neither party may represent that it has such authority. 4. Reservation of Rights. Brycer reserves the right, in its sole discretion and with prior notice to Client, to discontinue, add, adapt, or otherwise modify any design or specification of the Solution and/or Brycer’s policies, procedures, and requirements specified or related hereto. All rights not expressly granted to Client are reserved to Brycer, including the right to provide all or any part of the Solution to other parties. 5. Use of Logos. During the term of this Agreement, Brycer shall have the right to use Client’s logos only for the purpose of providing the Solution to Client. 6. Confidential Information. Brycer and Client acknowledge and agree that in providing the Solution, Brycer and Client, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information ("Confidential Information"). Confidential Information may include, but is not limited to, the Solution, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. Confidential Information excludes information: (a) that is or becomes generally available to the public through no fault of the receiving party; (b) that is rightfully received by the receiving party from a third party without limitation as to its use; or (c) that is independently developed by receiving party without use of any Confidential Information. At the termination of this Agreement, each party will return the other party all Confidential Information of the other party. Each party also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any Confidential Information of the other party or any firmware, circuit board or software provided therewith. Notwithstanding the foregoing, the parties acknowledge that Client shall be permitted to comply with any all federal and state laws concerning disclosure, including Montana’s public records laws. 7. Brycer Warranty. Brycer represents and warrants to Client that Brycer has all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Solution, and that Brycer is duly authorized to enter into this Agreement and provide the Solution to Client pursuant to this Agreement. 8. Disclaimer. All information entered into Brycer’s database is produced by third party inspectors and their agents. THEREFORE, BRYCER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ENTERED INTO BRYCER’S DATABASE BY EITHER CLIENT OR THIRD PARTY INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7, BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY OTHER INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. LIMITATION ON DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR SYSTEM DOWNTIME. 10. Risks Inherent to Internet. Client acknowledges that: (a) the Internet is a worldwide network of computers, (b) communication on the Internet may not be secure, (c) the Internet is beyond the control of Brycer, and (d) Brycer does not own, operate or manage the Internet. Client hereby assumes the risk, and Brycer shall have no responsibility or liability of any kind hereunder, for: (1) errors in the Solution resulting from misuse, negligence, revision, modification, or improper use of all or any part of the Solution by Client; (2) any version of the Solution other than the then-current unmodified version provided to Client; (3) Client's failure to timely or correctly install any updates to the Client Access Software; (4) problems caused by connecting or failure to connect to the Internet; (5) failure to provide and maintain the technical and connectivity configurations for the use and operation of the Solution that meet Brycer’s recommended requirements; (6) nonconformities resulting from or problems to or caused by non-Brycer products or services; or (7) data or data input, output, accuracy, and suitability, which shall be deemed under Client’s exclusive control. 11. Indemnity. Brycer will defend and indemnify the Client against any damages, losses, liabilities, causes of action, costs or expenses (including reasonable attorneys’ fees) arising from or in connection with Brycer’s breach of this Agreement, gross negligence or intentional misconduct, or any actual or alleged 73 2232885/3/13399.000 infringement or violation of any proprietary right of any third person, including copyright, patent, trademark, or misappropriation of trade secret,. 12. Insurance. Brycer shall at Brycer’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in Section 11. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by Brycer. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Brycer shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to Brycer commencing work. Brycer shall notify City within two (2) business days of Brycer’s receipt of notice that any required insurance coverage will be terminated or Brycer’s decision to terminate any required insurance coverage for any reason. 13. Breach. Brycer shall have the right to terminate or suspend this Agreement, and all of Client’s rights hereunder, immediately upon delivering written notice to Client detailing Client’s breach of any provision of this Agreement. If Client cures such breach within 5 days of receiving written notice thereof, Brycer shall restore the Solution and Client shall pay any fees or costs incurred by Brycer in connection with the restoration of the Solution. 14. Illegal Payments. Client acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or anything of value from any employee or agent of Brycer in connection with the Agreement. 15. Nondiscrimination. Brycer agrees that all hiring by Brycer of persons performing this Agreement shall be on the basis of merit and qualifications. Brycer will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Brycer will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Brycer shall require these nondiscrimination terms of its subcontractors providing services under this agreement. 16. Beneficiaries. There are no third party beneficiaries to the Agreement. 17. Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, blackouts, accidents, or strikes. In the event of any such delay, any applicable period of time for action by said party may be deferred for a period of time equal to the time of such delay, except that a party's failure to make any payment when due hereunder shall not be so excused. 18. Notices. All notices required in the Agreement shall be effective: (a) if given personally, upon receipt; (b) if given by facsimile or electronic mail, when such notice is transmitted and confirmation of receipt obtained; (c) if mailed by certified mail, postage prepaid, to the last known address of each party, three business days after mailing; or (d) if delivered to a nationally recognized overnight courier service, one business day after delivery. Notices will be sent to: City of Bozeman Attn: Fire Chief P.O. Box 1230 Bozeman, MT 59771-1230 BRYCER, LLC Attn: Matthew B. Rice 4355 Weaver Parkway Suite 330 Warrenville, IL 60555 19. Assignment. The Agreement may not be assigned or transferred by Client without the prior written consent of Brycer and any purported transfer in violation of this section shall be null and void. The Agreement shall be binding upon and inure to the benefit of the parties thereto and their respective successors and representatives. 20. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE LAWS OF THE STATE OF MONTANA WITHOUT REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF SUCH STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THE AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED WITHIN THE STATE OF MONTANA. THE PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID STATE. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 21. Attorneys’ Fees. The prevailing party in any proceeding in connection with the Agreement shall be entitled to recover from the non-prevailing party all costs and expenses, including without limitation, reasonable attorneys’ and paralegals’ fees and costs incurred by such party in connection with any such proceeding. 22. Entire Agreement. The Agreement sets out the entire agreement between the parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. 23. Amendment. The Agreement may not be altered or modified, except by written amendment which expressly refers to the Agreement and which is duly executed by authorized representatives of both parties. The waiver or failure by either 74 2232885/3/13399.000 party to exercise or enforce any right provided for in the Agreement shall not be deemed a waiver of any further right under the Agreement. Any provision of the Agreement held to be invalid under applicable law shall not render the Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law. The Agreement may be executed by facsimile and in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 24. Expiration. The rights and obligations contained in these Terms and Conditions shall survive any expiration or termination of the Agreement. 75 Exhibit B Maintenance Schedule and Minimum Service Levels 1. Uptime and Maintenance. The Solution shall be available 24 hours per day during the term of this Agreement. The Solution shall be fully functional, timely and accessible by Client at least 99.5% of the time or better and Brycer shall use reasonable efforts to provide Client with advance notice of any unscheduled downtime. 2. Response Time. Developer shall respond to telephone calls from Client within two hours of the call and/or message and all emails from Client within two hours of the receipt of the email. 3. Customer Support Customer support hours are 24/7/365. The toll free number is 1-855-279-2371 Brycer will assign client a dedicated customer representative with direct access to their email and work number. 76