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CONTRACT 5240 Other Agreement No. 5240 BRYCER,LLC 4355 Weaver Parkway Suite 330 Warrenville,IL 60555 12/13/16 El Segundo Fire Department 314 Main St. El Segundo, CA 90245 Re: "Tbe Ccamnliance Enajnj,: Dear Mr. Carver: We look forward to providing you with "The Compliance Engine" (the "Service"). This proposal letter provides the basic terms by which Brycer, LLC, a Delaware limited liability company ("Brycer") will provide the City of El Segundo, a California general law city and municipal corporation ("Client"), with the Service. The use of the Service 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 Service for three years, commencing January 1, 2017 (the "Initial Term"). Thereafter, the Term shall automatically renew for successive three year periods 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 Service; provided, however, Brycer shall make available, and Client shall have the right to download, Client's data from the Service 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 to Brycer for use of the Service. Brycer will collect all fees due and payable by third party inspectors in connection with activities relating to the Service. 3. i3rvicer Iles votjs it)ilities: During the Term, Brycer shall be responsible for the following in connection with Client's use of the Service: Availability. Brycer shall make the Service available to Client as set forth on Exhibit B. The maintenance schedule and minimum service levels for the Service are set forth on Exhibit B.1216 1 Agreement No. 5240 Service Level. Brycer shall provide commercially reasonable levels of customer service with respect to the Service to all third parties who transact business with Client and access the Service. Backup. Brycer shall backup the database used in connection with the Service to a separate server located within the same web hosting firm which the Service 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. encrypted and appropriately authenticated) download file of Client data in XML format including all schema and attachments in their native format. Brycer shall maintain appropriate 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 Service: (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 Service during the Term, Brycer shall promptly provide such updates or corrections to Client free of any charge or fee. 4. Client Iles ponsibilities: During the Term, Client shall be responsible for the following in connection with Client's use of the Service: + 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 Service 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 7.0, Firefox version 3, Chrome 2 or Safari 4 (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 Service. Information. Client shall promptly provide Brycer with all appropriate information necessary for Brycer to create the database for the Service, including without limitation: (a) all commercial building addresses within the City of El Segundo for Brycer's initial upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion. 2 Agreement No. 5240 Enforcement. Client shall take all actions necessary to require in writing (e.g. reService, ordinance, fire policy, code amendment) the use of the Service by third party inspection companies. 0 Reports. Client will require all compliant and deficient test results to be submitted. 5. Ownersliiv of Matti. Client owns all the data provided by Client and received from third party contractors for Client. Brycer shall maintain appropriate 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. Brycer, LLC Its: President Acknowledged and Agreed to this _��"L'""' day of Vic'h h / , 20 b ) CITY OF EL SEGUNDO, a California general law city and aunicipal corporation G r" g rpen'tc City is iaager A"1_°1' ,ST: i ................ .`� : ..... Tracy... .eater, C,'ity Clerk 'I'V APPROVED AS TO FORM: __.VJ T'` for Mark D. Hensley City Attorney 3 Agreement No. 5240 Exhibit A Terms and Conditions Any capitalized terns 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"). p. Itwtrj ,l,ianr, ,,,c,ae� �,lww ,. Client shall not copy, distribute, create public through no fault of the receiving party; (b) that is derivative works of or modify the Service in any way. Client rightfully received by the receiving party from a third party agrees that: (a) it shall only permit its officers and employees without limitation as to its use; or (c) that is independently (collectively,the"Authorized Users")to use the Service for the developed by receiving party without use of any Confidential benefit of Client; (b) it shall use commercially reasonable Information, At the termination of this Agreement,each party efforts to prevent the unauthorized use or disclosure of the will return the other party all Confidential Information of the Service;(c)it shall not sell,resell,rent or lease the Service;(d) other party. Each party also agrees that it shall not duplicate, it shall not use the Service to store or transmit infringing or translate, modify, copy, printout, disassemble, decompile or otherwise unlawful or tortious material, or to store or transmit otherwise tamper with any Confidential Information of the other material in violation of third party rights; (e) it shall not party or any firmware, circuit board or software provided interfere with or disrupt the integrity or performance of the therewith. Notwithstanding the foregoing, the parties Service or third-party data contained therein;and(f)it shall not acknowledge that Client shall be permitted to comply with any reverse engineer,translate,disassemble,decompile or otherwise all federal and state laws concerning disclosure. attempt to create any source code which is derived from the Service. Client is responsible for all actions taken by the 7. 11ry cer Worraanty. Brycer represents and warrants to Client that Authorized Users in connection with the Service. Brycer has all rights necessary in and to any patent, copyright, trademark,service mark or other intellectual property right used 2. Pronrietary Itatalus". All right, title and interest in and to the in, or associated with, the Service, and that Brycer is duly Service and any and all derivative works or modifications authorized to enter into this Agreement and provide the Service thereof (the "Derivative Works"), and any accompanying to Client pursuant to this Agreement. documentation, manuals or other materials used or supplied under this Agreement or with respect to the Service or 8, I)fsclaainacr. All information entered into Brycer's database is Derivative Works (the "Documentation"), and any produced by third party inspectors and their agents. reproductions works made thereof,remain with Brycer. Client THEREFORE, BRYCER SPECIFICALLY DISCLAIMS shall not remove any product identification or notices of such ANY REPRESENTATION OR WARRANTY AS TO THE proprietary rights from the Service. Client acknowledges and ACCURACY OR COMPLETENESS OF ANY agrees that, except for the limited use rights established INFORMATION ENTERED INTO BRYCER'S hereunder,Client has no right,title or interest in the Service,the DATABASE BY EITHER CLIENT OR THIRD PARTY Derivative Works or the Documentation. INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7. BRYCER MAKES NO OTHER WARRANTY, EXPRESS 3 Indenandent Conlr'oom. Nothing in the Agreement may be OR IMPLIED,WITH RESPECT TO THE SERVICE OR construed or interpreted as constituting either party hereto as the ANY OTHER INFORMATION AND ALL OTHER agent,principal,employee or joint venturer of the other. Each WARRANTIES, WHETHER EXPRESS OR IMPLIED, of Client and Brycer is an independent contractor. Neither may ARE HEREBY DISCLAIMED,INCLUDING, WITHOUT assume, either directly or indirectly, any liability of or for the LIMITATION, THE IMPLIED WARRANTIES OF other party. Neither party has the authority to bind or obligate MERCHANTABILITY AND FITNESS FOR A the other party and neither party may represent that it has such PARTICULAR PURPOSE. BRYCER'S SOLE LIABILITY authority. FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 7, AND 4. )teservaalion ail" llt;?,2hts. Brycer reserves the right, in its sole CLIENT'S SOLE REMEDY,SHALL BE THAT BRYCER discretion and with prior notice to Client, to discontinue, add, SHALL INDEMNIFY AND HOLD CLIENT HARMLESS adapt, or otherwise modify any design or specification of the FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, Service and/or Brycer's policies, procedures, and requirements CLAIM OR DEFENSE ARISING OUT OF BREACH OF specified or related hereto All rights not expressly granted to THE REPRESENTATION AND WARRANTY. Client are reserved to Brycer, including the right to provide all or any part of the Service to other parties. 9 LINI ffATION" ON IIANl; GES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7,IN NO EVENT 5. k,tsammmdlt,mm,mlt},L ROw,. During the term of this Agreement, Client SHALL BRYCER BE LIABLE FOR OR OBLIGATED IN authorizes Brycer to use Client's logos for the purpose of ANY MANNER FOR SPECIAL, CONSEQUENTIAL,OR providing the Service to Client. Any unauthorized use of INDIRECT DAMAGES, INCLUDING, BUT NOT Client's logos, for Brycer marketing purposes or otherwise, is LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR prohibited without Client's express written consent. SYSTEM DOWNTIME. CLIENT ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL BRYCER'S 6. Configc,9,en li,aiN 9,ap,laygma,7a,at9,pgaip„ Brycer and Client acknowledge and LIABILITY FOR ANY LOSS OF DATA OR DATA agree that in providing the Service, Brycer and Client, as the INTEGRITY EXCEED THE REPLACEMENT COST OF case may be, may disclose to the other party certain THE MEDIA ON WHICH THE DATA WAS STORED. confidential,proprietary trade secret information ("Confidential Information"). Confidential Information may include,but is not 10. (,CiskaInherent to Interim. Client acknowledges that: (a) the limited to, the Service, computer programs, flowcharts, Internet is a worldwide network of computers, (b) diagrams, manuals, schematics, development tools, communication on the Internet may not be secure, (c) the specifications, design documents, marketing information, Internet is beyond the control of Brycer,and(d)Brycer does not financial information or business plans. Each party agrees that own,operate or manage the Internet. Client also acknowledges it will not,without the express prior written consent of the other that there are inherent risks associated with using the Service, party,disclose any Confidential Information or any part thereof including but not limited to the risk of breach of security, the to any third party. Confidential Information excludes risk of exposure to computer viruses and the risk of interception, information: (a) that is or becomes generally available to the distortion, or loss of communications. Client assumes these 4 Agreement No. 5240 risks knowingly and voluntarily and indemnities and holds 14. 11 lwjkLaL s There are no third party beneficiaries to the Brycer harmless from all liability from all such risks, Not in Agreement limitation of the foregoing,Client hereby assumes the risk,and Brycer shall have no responsibility or liability of any kind 15. [ory3; qtr�, Neither party shall be responsible for any _JN1q hereunder, for: (1)errors in the Service resulting from misuse, failure to perform due to unforeseen, non-commercial negligence,revision,modification,or improper use of all or any circumstances beyond its reasonable control, including but not part of the Service by any entity other than Brycer or its limited to acts of God, war, riot, embargoes, acts of civil or authorized representatives;(2)any version of the Service other military authorities, fire, floods, earthquakes, blackouts, than the then-current unmodified version provided to Client;(3) accidents, or strikes. In the event of any such delay, any Client's failure to timely or correctly install any updates to the applicable period of time for action by said party may be Client Access Software;(4)problems caused by connecting or deferred for a period of time equal to the time of such delay, failure to connect to the Internet; (5) failure to provide and except that a party's failure to make any payment when due maintain the technical and connectivity configurations for the hereunder shall not be so excused. use and operation of the Service that meet Brycer's recommended requirements;(6)nonconformities resulting from 16. All notices required in the Agreement shall be .... ......I or problems to or caused by non-Brycer products or services;or effective: (a) if given personally, upon receipt; (b) if given by (7) data or data input, output, accuracy, and suitability, which facsimile or electronic mail,when such notice is transmitted and shall be deemed under Client's exclusive control. confirmation of receipt obtained;(c)if mailed by certified mail, postage prepaid,to the last known address of each party,three Each party(the"Indemnifying Party")will defend business days after mailing; or(d) if delivered to a nationally and indemnify the non-indemnifying party against any damages, recognized overnight courier service, one business day after losses,liabilities,causes of action, costs or expenses(including delivery. reasonable attorneys' fees) arising from the Indemnifying Party's breach of this Agreement, gross negligence or 17. A,5,winvnl. The Agreement may not be assigned or transferred intentional misconduct, Client will defend and indemnify by Client without the prior written consent of Brycer and any Brycer against any damages,losses,liabilities,costs or expenses purported transfer in violation of this section shall be null and (including reasonable attorneys'fees),claims,demands,suits or void. The Agreement shall be binding upon and inure to the proceedings made or brought against Brycer by a third party in benefit of the parties thereto and their respective successors and connection with Client's or an Authorized User's use of the representatives. Service, or any action or inaction taken by a third party, including, but not limited to, third party inspectors, in 18. A IRISDICHON AND VFN_1JF. THE AGREEMENT SHALL connection with such third party providing services for Client or BE GOVERNED BY,CONSTRUED AND INTERPRETED IN otherwise at Client's or an Authorized User's request or ACCORDANCE WITH, AND ENFORCEABLE UNDER, direction THE LAWS OF CALIFORNIA. THE PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR lnjdl gjual Proncrtv Notwithstanding any PROCEEDINGS IN ANY WAY, MANNER OR RESPECT provision to the contrary, Brycer will, at its own expense, ARISING OUT OF OR FROM OR RELATED TO THE indemnify and defend Client against any claim that the Service AGREEMENT SHALL BE LITIGATED ONLY IN COURTS infringes a patent or copyright in the United States or Puerto LOCATED WITHIN CALIFORNIA. THE PARTIES Rico. In such event, Brycer will pay all costs damages and HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE attorney's fees that a court finally awards as a result of such JURISDICTION OF ANY LOCAL, STATE OR FEDERAL claim, To qualify for such defense and payment,Client must(a) COURT LOCATED WITHIN SAID STATE. THE PARTIES give Brycer prompt written notice of any such claim; and (b) HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO allow Brycer to control,and fully cooperate with Brycer in the TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION defense and all related settlement negotiations. Client agrees OR PROCEEDING ARISING OUT OF OR RELATING TO that if the use of the Service, or Brycer believes is likely to THIS AGREEMENT. become, the subject of such an intellectual property claim, Client will permit Brycer, at its option and expense, either to 19, Attorney........!:'egs. The prevailing party in any proceeding in secure the right for Client to continue using the Service or to connection with the Agreement shall be entitled to recover from replace it with comparable services and work product, the non-prevailing party all costs and expenses, including Notwithstanding the foregoing,in no event shall Bryer have any without limitation, reasonable attorneys' and paralegals' fees liability of any kind whatsoever, whether infringement or and costs incurred by such party in connection with any such otherwise,with respect to the accuracy of the information that is proceeding. provided by any third party. Client acknowledges and agrees that Brycer makes no representations, warranties or covenants 20 f)ifire Agq;p greli Lvj. The Agreement sets out the entire agreement of any kind whatsoever regarding any information that is between the parties relative to the subject matter hereof and provided to Bryer by any third party. supersedes all prior or contemporaneous agreements or representations,oral or written. 12. Breach. Brycer shall have the right to terminate or suspend this Agreement, and all of Client's rights hereunder, immediately 21. Amendrucol. The Agreement may not be altered or modified, upon delivering written notice to Client detailing Client's except by written amendment which expressly refers to the breach of any provision of this Agreement If Client cures such Agreement and which is duly executed by authorized breach within 5 days of receiving written notice thereof,Brycer representatives of both parties. The waiver or failure by either shall restore the Service and Client shall pay any fees or costs party to exercise or enforce any right provided for in the incurred by Brycer in connection with the restoration of the Agreement shall not be deemed a waiver of any further right Service. under the Agreement. Any provision of the Agreement held to be invalid under applicable law shall not render the Agreement 13. 111 al 'a iewk,�, Client acknowledges and agrees that it has invalid as a whole,and in such an event,such provision shall be A" Lamn_..... not received or been offered any illegal or improper bribe, interpreted so as to best accomplish the intent of the parties kickback,payment,gift or anything of value from any employee within the limits of applicable law. The Agreement may be or agent of Brycer in connection with the Agreement. executed by facsimile and in counterparts, each of which shall 5 Agreement No. 5240 be deemed an original,and all of which together shall constitute Client will be excess thereto. Such insurance will be on an one and the same instrument. "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty(30)days' 22. 1.!%Wiqqj m The rights and obligations contained in these Terms prior written notice to Client. and Conditions shall survive any expiration or tennination of the Agreement. Professional liability coverage will be on an"occurrence basis" if such coverage is available,or on a"claims made"basis if not 23. Before commencing performance under this available. When coverage is provided on a "claims made Agreement, and at all other times this Agreement is effective, basis,"Brycer will continue to maintain the insurance in effect Brycer will procure and maintain the following types of for a period of three(3)years after this Agreement expires or is insurance with coverage limits complying,at a minimum,with terminated ("extended insurance") Such extended insurance the limits set forth below: will have the same coverage and limits as the policy that was in effect during the term of this Agreement,and will cover Brycer Type of friqirance for all claims made by Client arising out of any errors or Limits(combined single) omissions of Brycer,or its officers,employees or agents during Commercial general liability: the time this Agreement was in effect. $1,000,000 Professional Liability: $1,000,000 Brycer will furnish to Client duly authenticated Certificates of Auto Liability: $1,000,000 Insurance evidencing maintenance of the insurance required Workers compensation: under this Agreement, endorsements as required herein, and Statutory requirement, such other evidence of insurance or copies of policies as may be reasonably required by Client from time to time, Insurance Commercial general liability insurance will meet or exceed the must be placed with insurers with a current A.M.Best Company requirements of the most current ISO-CGL Form. The amount Rating equivalent to at least a Rating of"A:VII." of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property Should Brycer, for any reason, fail to obtain and maintain the damage for the policy coverage. Liability policies will be insurance required by this Agreement, Client may obtain such endorsed to name City of El Segundo, its officials, and coverage at Brycer's expense and deduct the cost of such employees as "additional insureds" under said insurance insurance from payments due to Client under this Agreement or coverage and to state that such insurance will be deemed terminate. "primary"such that any other insurance that may be carried by Agreement No. 5240 Exhibit B Maintenance Schedule and Minimum Service Levels I Untime and Maintenance. The Service shall be available 24 hours per day during the term of this Agreement. The Service 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. llcsnonse "mc 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 Stivvort 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.