HomeMy WebLinkAboutC2017-173 - 5/23/2017 - Approved BRYCER,LLC
4355 Weaver Parkway
Suite 330
Warrenville,IL 60555
January 19,2017
City of Corpus Christi Fire Department
2406 Leopard, Suite#300
Corpus Christi,TX 78408
Attn: Fire Chief Robert Rocha
Re: "The Compliance Engine"
Dear: Chief Rocha
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, City of
Corpus Christi 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 one year, commencing
(the "Initial Term"). Thereafter, the Term shall automatically renew for successive
one 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
by third party inspectors in connection with activities relating to the Solution, which may be amended
from time to time upon the written agreement of Brycer and Client.Please see Exhibit C for fee schedule.
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 within the same web hosting firm which the Solution is being
2017-173
5/23/17
Ord. 031155 DED
Brycer,LLC
hosted on a real time basis. Upon request by Client 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 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 [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 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.
2232885/3/13399.000
Brycer, LLC
By:
Its: 8 c.(•.v/
Acknowledged and Agreed to this
day of I ,20�:
[CLIENT]
By: Lh- C '
Its: A
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ATTEST: K.
P�ti 1�� yirtT-
REBECCA HUERTA
CITY SECRETARY
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Approved as to form: y
By6i t(( Dyt tti
Assistant City Attorney
For City Attorney
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 developed by receiving party without use of,any Confidential
derivative works of or modify the Solution in any way. Client Information. At the termination of this Agreement,each party
agrees that: (a) it shall only permit its officers and employees will return the other party all Confidential Information of the
(collectively,the"Authorized Users")to use the Solution for the other party. Each party also agrees that it shall not duplicate,
benefit of Client; (b) it shall use commercially reasonable translate, modify, copy, printout, disassemble, decompile or
efforts to prevent the unauthorized use or disclosure of the otherwise tamper with any Confidential Information of the other
Solution; (c) it shall not sell,resell, rent or lease the Solution; party or any firmware, circuit board or software provided
(d)it shall not use the Solution to store or transmit infringing or therewith. Notwithstanding the foregoing, the parties
otherwise unlawful or tortious material, or to store or transmit acknowledge that Client shall be permitted to comply with any
material in violation of third party rights; (e) it shall not all federal and state laws concerning disclosure.
interfere with or disrupt the integrity or performance of the
Solution or third-party data contained therein;and(f)it shall not 7. Brycer Warranty. Brycer represents and warrants to Client that
reverse engineer,translate,disassemble,decompile or otherwise Brycer has all rights necessary in and to any patent,copyright,
attempt to create any source code which is derived from the trademark,service mark or other intellectual property right used
Solution. Client is responsible for all actions taken by the in, or associated with, the Solution, and that Brycer is duly
Authorized Users in connection with the Solution. authorized to enter into this Agreement and provide the Solution
to Client pursuant to this Agreement.
2. Proprietary Rights. All right, title and interest in and to the
Solution and any and all derivative works or modifications 8. Disclaimer. All information entered into Brycer's database is
thereof (the "Derivative Works"), and any accompanying produced by third party inspectors and their agents.
documentation, manuals or other materials used or supplied THEREFORE, BRYCER SPECIFICALLY DISCLAIMS
under this Agreement or with respect to the Solution or ANY REPRESENTATION OR WARRANTY AS TO THE
Derivative Works (the "Documentation"), and any ACCURACY OR COMPLETENESS OF ANY
reproductions works made thereof,remain with Brycer. Client INFORMATION ENTERED INTO BRYCER'S
shall not remove any product identification or notices of such DATABASE BY EITHER CLIENT OR THIRD PARTY
proprietary rights from the Solution. Client acknowledges and INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7,
agrees that, except for the limited use rights established BRYCER MAKES NO OTHER WARRANTY, EXPRESS
hereunder, Client has no right, title or interest in the Solution, OR IMPLIED,WITH RESPECT TO THE SOLUTION OR
the Derivative Works or the Documentation. ANY OTHER INFORMATION AND ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED,
3. Independent Contractor. Nothing in the Agreement may be ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT
construed or interpreted as constituting either party hereto as the LIMITATION, THE IMPLIED WARRANTIES OF
agent,principal,employee or joint venturer of the other. Each MERCHANTABILITY AND FITNESS FOR A
of Client and Brycer is an independent contractor. Neither may PARTICULAR PURPOSE. BRYCER'S SOLE LIABILITY
assume, either directly or indirectly, any liability of or for the FOR BREACH OF THE REPRESENTATION AND
other party. Neither party has the authority to bind or obligate WARRANTY SET FORTH IN SECTION 7, AND
the other party and neither party may represent that it has such CLIENT'S SOLE REMEDY,SHALL BE THAT BRYCER
authority. SHALL INDEMNIFY AND HOLD RECIPIENT
HARMLESS FROM AND AGAINST ANY LOSS, SUIT,
4. Reservation of Rights. Brycer reserves the right, in its sole DAMAGE, CLAIM OR DEFENSE ARISING OUT OF
discretion and with prior notice to Client, to discontinue, add, BREACH OF THE REPRESENTATION AND
adapt, or otherwise modify any design or specification of the WARRANTY.
Solution and/or Brycer's policies,procedures,and requirements
specified or related hereto. All rights not expressly granted to 9. LIMITATION ON DAMAGES. EXCEPT AS
Client are reserved to Brycer,including the right to provide all OTHERWISE PROVIDED IN SECTION 7,IN NO EVENT
or any part of the Solution to other parties. SHALL BRYCER BE LIABLE FOR OR OBLIGATED IN
ANY MANNER FOR SPECIAL, CONSEQUENTIAL, OR
5. Use of Logos. During the term of this Agreement,Brycer shall INDIRECT DAMAGES, INCLUDING, BUT NOT
have the right to use Client's logos for the purpose of providing LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR
the Solution to Client. SYSTEM DOWNTIME. CLIENT ACKNOWLEDGES
AND AGREES THAT IN NO CASE SHALL BRYCER'S
6. Confidential Information. Brycer and Client acknowledge and LIABILITY FOR ANY LOSS OF DATA OR DATA
agree that in providing the Solution,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. Risks Inherent to Internet. Client acknowledges that: (a) the
limited to, the Solution, 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 Solution,
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
public through no fault of the receiving party; (b) that is risks knowingly and voluntarily and indemnifies and holds
rightfully received by the receiving party from a third party Brycer harmless from all liability from all such risks. Not in
without limitation as to its use; or (c) that is independently limitation of the foregoing,Client hereby assumes the risk,and
2232885/3/13399.000
Brycer shall have no responsibility or liability of any kind benefit of the parties thereto and their respective successors and
hereunder,for: (1)errors in the Solution resulting from misuse, representatives.
negligence,revision,modification,or improper use of all or any
part of the Solution by any entity other than Brycer or its 18. JURISDICTION AND VENUE. THE AGREEMENT SHALL
authorized representatives;(2)any version of the Solution other BE GOVERNED BY,CONSTRUED AND INTERPRETED IN
than the then-current unmodified version provided to Client;(3) ACCORDANCE WITH, AND ENFORCEABLE UNDER,
Client's failure to timely or correctly install any updates to the THE LAWS OF THE STATE OF TEXAS. THE PARTIES
Client Access Software; (4)problems caused by connecting or IRREVOCABLY AGREE THAT ALL ACTIONS OR
failure to connect to the Internet; (5) failure to provide and PROCEEDINGS IN ANY WAY, MANNER OR RESPECT
maintain the technical and connectivity configurations for the ARISING OUT OF OR FROM OR RELATED TO THE
use and operation of the Solution that meet Brycer's AGREEMENT SHALL BE LITIGATED ONLY IN COURTS
recommended requirements;(6)nonconformities resulting from LOCATED WITHIN NUECES COUNTY, STATE OF
or problems to or caused by non-Brycer products or services;or TEXAS,. THE PARTIES HEREBY CONSENT AND
(7) data or data input,output, accuracy, and suitability, which SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY
shall be deemed under Client's exclusive control. LOCAL,STATE OR FEDERAL COURT LOCATED WITHIN
SAID STATE AND COUNTY. THE PARTIES HEREBY
11. Indemnity. Brycer(the"Indemnifying Party")will defend and WAIVE ANY RIGHTS THEY MAY HAVE TO TRANSFER
indemnify the Client against any damages, losses, liabilities, OR CHANGE VENUE OF ANY SUCH ACTION OR
causes of action, costs or expenses (including reasonable PROCEEDING ARISING OUT OF OR RELATING TO THIS
attorneys' fees) arising from the Brycer's breach of this AGREEMENT. . •
Agreement,gross negligence or intentional misconduct. Brycer
will defend and indemnify Client against any damages, losses, 19. Attorneys' Fees. The prevailing party in any proceeding in
liabilities, costs or expenses (including reasonable attorneys' connection with the Agreement shall be entitled to recover from
fees), claims, demands, suits or proceedings made or brought the non-prevailing party all costs and expenses, including
against Client by a third party in connection with Client's or an without limitation, reasonable attorneys' and paralegals' fees
Authorized User's use of the Solution,or any action or inaction and costs incurred by such party in connection with any such
taken by a third party,including,but not limited to,third party proceeding.
inspectors, in connection with such third party providing
services for Client or otherwise at Client's or an Authorized 20. Entire Agreement. The Agreement sets out the entire agreement
User's request or direction between the parties relative to the subject matter hereof and
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. Amendment. 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 Solution 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
Solution. under the Agreement. Any provision of the Agreement held to
be invalid under applicable law shall not render the Agreement
13. Illegal Payments. Client acknowledges and agrees that it has invalid as a whole,and in such an event,such provision shall be
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
be deemed an original,and all of which together shall constitute
14. Beneficiaries. There are no third party beneficiaries to the one and the same instrument.
Agreement.
22. Expiration. The rights and obligations contained in these Terms
15. Force Majeure. Neither party shall be responsible for any and Conditions shall survive any expiration or termination of
failure to perform due to unforeseen, non-commercial the Agreement.
circumstances beyond its reasonable control, including but not
limited to acts of God, war, riot, embargoes, acts of civil or 23. Certificate of Interested Parties. Consultant agrees to comply
military authorities, fire, floods, earthquakes, blackouts, with Texas Government Code section 2252.908 and complete
accidents, or strikes. In the event of any such delay, any Form 1295 Certificate of Interested Parties as part of this
applicable period of time for action by said party may be agreement.
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 Form 1295 requires disclosure of "interested parties" with
hereunder shall not be so excused. respect to entities that enter contracts with cities. These
interested parties include:
16. Notices. All notices required in the Agreement shall be (1) persons with a "controlling interest" in the entity, which
effective: (a) if,given personally,upon receipt; (b) if given by includes:
facsimile or electronic mail,when such notice is transmitted and a. :an ownership interest or participating interest
confirmation of receipt obtained;(c)if mailed by certified mail, in a business entity by virtue of units,percentage,shares,stock
postage prepaid,to the last known address of each party,three or otherwise that exceeds 10 percent;
business days after mailing; or(d) if delivered to a nationally b. membership on the board of directors or other
recognized overnight courier service, one business day after governing body of a business entity of which the board or other
delivery. governing body is composed of not more than 10 members;or
c. service as an officer of a business entity that
17. Assignment. The Agreement may not be assigned or transferred has four or fewer officers,or service as one of the four officers
by Client without the prior written consent of Brycer and any most highly compensated by a business entity that has more
purported transfer in violation of this section shall be null and than four officers
void. The Agreement shall be binding upon and inure to the
2232885/3/13399.000
(2).a person who actively participates in facilitating a contract
or negotiating the terms of a contract with a governmental entity
or state agency, including a broker, intermediary, adviser or 24. Conflict of Interest. Consultant agrees to comply
attorney for the business entity. with Chapter 176 of the Texas Local Government
Code and file Form CIQ with the City Secretary's
Form 1295 must be electronically filed with the Texas Ethics Office, if required. For more information and to
Commission at determine if you need to file a Form CIQ, please
https://www.ethics.state.tx.us/whatsnew/elf info forml295.htm review the information on the City Secretary's
The form must then be printed,signed,notarized and filed with website at http://www.cctexas.com/government/city-
the City. For more information,please review the Texas Ethics secretary/conflict-disclosure/index
Commission Rules at
https://www.ethics.state.tx.us/legal/ch46.html.
2232885/3/13399.000
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.
Brycer 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.
BR CER PRICING MODEL ill
To ANCE
ENGINE
°°"'E`er ay BatER
System Type Submittal Option Price Billing
Frequency
Active Smoke Control System Annual $12.00 Annual
Automatic Closing Fire Assemblies (Fire Door) Annual $12.00 Annual
Automatic Fire Sprinkler System Annual, Quarterly, Monthly $12.00 Annual
Clean Agent Annual, Semi-Annual $12.00 Per Submittal
Annual, Semi-Annual Quarterly,
Commercial Kitchen Exhaust System (Cleaning) Monthly $12.00 Per Submittal
Commercial Kitchen Hood Suppression System Semi-Annual $12.00 Per Submittal
Emergency Generator Annual $12.00 Annual
Emergency Responder Radio Amplifier Annual $12.00 Annual
Fire Alarm System Annual, Quarterly, Monthly $12.00 Annual
Fire Escape Annual, 5-Year $12.00 Annual
Fire Pump Annual, Quarterly, Monthly $12.00 Annual
Private Hydrant System Annual $12.00 Annual
Special Suppression System Annual, Semi-Annual $12.00 Per Submittal
Spray Booth Annual, Semi-Annual $12.00 Per Submittal
Standpipe Annual, 5-Year $12.00 Annual
Exhibit C
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business.
2017-179802
BRYCER, LLC
Warrenville, IL United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form Is 03/17/2017
being filed.
City of Corpus Christi Fire Department Date Acknowledged:
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
171073
Web based compliance software
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
MDR Capital,LLC Wheaton, IL United States X
Bryan,Schultz Warrenville, IL United States X
Matthew,Rice Warrenville, IL United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
OFFICIAL SEAL
NICOLE HORNER :"�44'.
OF
NOTARY PUBLIC-STATE OF It l fNO1S
MY COMMISSION EXPIRES:03/05/19 Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE /� t�,, j March
(,,
Sworn to and subscribed before me by the said tvla4 -Ket� QiC.e, ,this the i 7 day of i" a r t..1'!
20_�� ,to certify which,witness my hand and seal of office.
.111/C/04_414k04( Nieblf +10610( 01.4 kadA7f-
Signature of officer administer ng oath Pr nted name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277