Loading...
HomeMy WebLinkAboutAgreement with Brycer, LLC for Compliance Engine PurchaseBRYCM I -LC 4355 Weaver Parkway Suite 100 Warrenville IL 60555 Maroh 17, 2015 Meridian Fire Department 33 E Broadway Ave Meridian, ID 83642 Attn: Fire Chief Mark Niemeyer Re: "The Compliance Engine" We look forward to providing you with "The Compliance Engine" (the "Solution"). This proposal letter provides the basic terms by which Brycer, LLC ("Brycer") wil I provide you, the Meridian 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 MVLt?M t-7,7-015 (the "Initial Tenn'). 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 30 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. 3. Brycer Responsibilities: During the Term, Brycer shall be responsible for the following in connection with Client's use of the Solution: • AvallabMily. Brycer shall make the Solution available to Client asset 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 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. 1190293/4113399.000 • Retention offitformation. 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. Information older than (5) years may be archived and available within 24hrs per request. No information will be removed without approval by the Client • 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. • 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 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. • T wining. 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 Meridian Fire Department's jurisdiction for Bryoer's initial upload; and (b) quarterly updates to 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. Please acknowledge your acceptance of this proposal and our standard Terms and Conditions by countor-signing this proposal below. We look forward to a long-term and mutually beneficial relationship with you. Acknowledged and greed to this Vmay of _(Lnl�_. , 20_19�: City of Meridian 33 E Broadway Ave 1VIeridia83642 " /' ^ -� By: SGC �/ Its: Mayor I I A0293/4/13399.000 Brycer, LLC By: Bryan Schultz Its: Managing Director Exhibit A Terns Bnd Conditions Any capitalized terms not defined in these Terns mid Conditions shall hove the meaning assigned to it in that certain Letter Agreement attached hereto by and between Brycer, LLC and Client (the "Agreement). Restrictions on Use. Client shall not copy, distribute, create derivative works of or modify the Solution in any wry. Client agrees [hill: (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 una liorind 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 lortious material, or to store or transmit material in violation of third party rights; (e) it shall not interfere with nr disrupt tire integrity or perfommnoc of the Solution or Third -party data contained ttemin; and (I) it slall not reverse engineer, translate, disassemble, decompile or otherwise atlenrpt 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. Propriclary Rights. All right, tide 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 "I7acumenlallan"), and any reproductions works made thereof, remain with Brycer. Client shall not remove any product identification or nUtreLS 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. Each of Client and Brycer is an independent contractor. Neillher may assume, oitrer directly or indirectly, any liability of or for the other party. Neither party has the authority to bind or obligate the other party and neither party may represeat that it has such authority. 4. Reservation of Rights. Brycer reserves the right, in its sole discretion and with prior notice to Chant, to discontinue, add, adapt, or otherwise modify any design or specification of the Solution and/or Brycei 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 nil or any part of rhe Solution to other parties. 5. Use of Loans. During the teen of this Agreement, Brycer shall have fire right to use Clicnt's logos for the purpose of providing the Solution to Client. G. Confidential fulmination. Brycci• and Client acknowledge and agree that in providing the Solution, Brycer and Clicnt, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information ("Confidential Infommtioa")- Confidential Information may include, but is Out limned to, the Solution, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, finonclal information or business plans. Each party agrees [hat it will not, without the express prior written consent of the other party, disclose any Confidential Information or any pan thereof to any third party. Confidential Infoarr ion excludes Information: (a) that is or becomes generally available to the 1180293/4/13399.000 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 lamination, 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, Imnslate, modify, copy, printout, disassemble, decompile or Otherwise tamper with any Confidential Information of the other Party or any firmware, circuit board or soflwarc provided therewith. Notwithstanding the foregoing, the parties acknowledge that Client shall he permitted to comply with any all federal and stale laws concerning disclosure. 7. Brycer Warmnrv. Brycor represents and warrants to Client that Brycer has all rights necessary in and to any patent, copyright, Imdemark, service mark or other intellectual property right used in, or associated with, the Solution, and that Brycer is duly autorized to enter into this Agreement and provide the Solution to Client pursuant to this Agreement. S. Disclaimer. All information entered into Brycer's database is produced by third potty inspectors and their agents. THEREFORE, BRYCER SPECITICALLY 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 MARES 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. BRYCER'S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 7, AND CLIENT'S SOLE REMEDY, SHALL BE THAT BRYCER SHALL INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY. LIMITATION ON DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7, IN NO EVENT SHALL BRYCER 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. CLIENT ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL, BRYCER IS LIABILITY FOR ANY LASS OF DATA OR DATA INTEGRITY EXCEED THE REPLACEMENT COST OF THE MEDIA ON WHICH THE DATA WAS STORED. Ig. 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, aperale or manage the Internet Client also acknowledges Thal them am inherent risks associated with using the Solution, including but not limited to the risk of breach of security, the risk of exposure to computer viruses and the risk of interception, distortion, or loss of communications. Client assumes these risks knowingly and voluntarily and indemnifies and holds Brycer harmless from all liability from all such risks. Not in limitation of the foregoing, 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 any entity other than Brycer or its authorized representatives; (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 Soflware; (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) nonconfonnities 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 he deemed under Client's exclusive control. Indemnity. Brycer (the "Indemnifying Party") will defend and indemnify, the non -indemnifying party against any damages, losses, liabilities, causes of action, costs or expenses (including reasonable attorneys' fees) arising from the hrdemnifying Party's breach of this Agreement, gross negligence or intentional misconduct. Client will hold Brycer harmless against any damages, losses, liabilities, costs or expenses, claims, demands, suits or proceedings made or brought against Brycer by a third party in connection with Client's or an Authorized User's use of the Solution, or any action or inaction taken by a third party, including, but not limited to, third party inspectors, in connection with such third party providing services for Client or otherwise at Client's or an Authorized User's request or direction. 12. 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. 13. 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. 14. Beneficiaries. There are no third party beneficiaries to the Agreement. 15. Force Marieure. 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. 16. 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, 1180293/4/13399.000 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. 17. Assignment The Agreement may not be assigned or transferred by either party without the prior written consent of the other and any purported transfer in violation of this section shall be null and void. The Agreement shall be binding upon and more to the benefit of the parties thereto and their respective successors and representatives. 18. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE LAWS OF THE STATE OF IDAHO APPLICABLE TO CONTRACTS MADE IN IDAHO AND THAT ARE TO BE WHOLLY PERFORMED IN IDAHO WITHOUT REFERENCE TO THE CHOICE -OF -LAW PRINCIPLES OF IDAHO. 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 ADA COUNTY, STATE OF IDAHO. I'HE PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY AND 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 THAI' ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 19. 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. 20. 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. 21. 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 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 Ally 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. 22. Expiration. The rights and obligations contained in these Terms and Conditions shall survive any expiration or termination of the Agreement. Compliance Engine presentation for recommended adoption BACKGROUND/NEED IDENTIFIED • Testing requirements for hood systems found in IFC; Testing recommendations for alarm panels and sprinkler systems found within NFPA 72 referenced by the IFC • Reporting/records retention requirements found inIFC and NFPA72 RECEIVED • current inspection timelines: MAR I � 20±5 o Sprinkler system inspected annually o Fire Alarm system inspected annually o Hood system inspected twice/year E KS OFFICE • FEDS (Fire Equipment Dealers) and AHJ (Authority Having Jurisdiction) agree a reporting tool that connects FEDS to AHJ needs to be implemented to ensure proper communication and compliance with regards to the testing and repair of alarm systems, sprinkler systems, and commercial cooking hood systems • Fire Departments have historically been re -active in ensuring compliance; need identified for a pro -active solution PRESENTATIONS DONE • August and December 2013 to FEDS (Fire Equipment Dealers) • March 2014 to FEDS and Property Owners (over 40 in attendance)- Agreed on the need for 3rd party reporting tool • April and August 2014 to IFPF (Idaho Fire Protection Forum)- Agreed on the need for 3rd party reporting tool • November 2014- City Council • February lath 2014- Presentation to FEDS on alternate solution. Concerns: o Two versions- PING and SONAR- PING basic package that mirrors what is currently free with a current compliance of approximately 25%, SONAR full version for higher cost - somewhat comparable to Compliance Engine o Many functions not able to be demonstrated for AHJ needs- automatic notification, dashboard, etc. o "Appearance" of conflict with Taylor Brothers o Software tool not currently being used anywhere- Beta test site not desirable COMPLIANCE ENGINE RECOMMENDATION POINTS • No cost to the City; requires no IT support- program is web -based • Tool is proven: Compliance Engine has been in operation for4 years • Compliance Engine used in 37 States; roughly 1000 AHJ's using; Los Angeles County recently signed on • 1 % year project has been in collaboration with Nampa and Boise to ensure consistency among AHJ's; benefits FEDS by requiring one consistent tool standard for reporting (Deputy Chief Jervais Boise Fire and Deputy Fire Marshall Johnson Nampa Fire)- all are in agreement with Compliance Engine as the adopted reporting tool • Consistent pricing that is fair to all FEDS regardless of size: set pricing for 3 years of contract. Contract can be opted out of with 90 day's notice. Compliance Engine Points—March 2015 • Automated 30 -day advanced notices to building owners on AHJ letterhead • Tracks & clears deficiencies automatically • Auto alerts by email critical fails • Is compatible with Mobile Eyes to ensure proper/standardized addressing and occupancy data • Has a very functional dashboard that allows AHJ to easily monitor compliance and repairs ACCESS/SECURITY • AHJ has access to all records • FED has access only to their client information • Building owner can request records through AHJ COST • $10 per system per address (FED to determine cost allocation based on their business model/plan) • Example: McDonald's who has an alarm system, a sprinkler system, and a hood system o Annual Sprinkler system test- $10 o Annual Alarm system test -$10 o BI -annual hood system test- $10 x 2 o TOTAL COST ANNUALLY FOR McDonalds = $40 ENDORSEMENTS • Currently endorsed by the Western Fire Chiefs Association (see announcement below) Dashboard for ease of tracking compliance: HrB.IE 1.1Y Wli �� CO-WAgit$ FftFA115F; I fFEI:$3ACK �� L.(.M 4n MVSIU : 011 ONlrlenl Tommolon premises Own companies compllool OefidarKV Tracking Reports Logapl Noiilketlons . Compliance Engine Points — March 2015 Brycer & Western Fire Chiefs Association Partner to Deliver Life Safety Posted on October 1, 2013 published by Da& Dispatch: 1010112013 author: Jeffrey D. Johnson CEO Western Fire Chiefs Association The Western Fire Chiefs Association (WFCA) is excited to announce a strategic partnership with The Compliance Engine (TCE), powered by Brycer LLC. Code compliance is a critical component of Fire Prevention in terms of reducing risk for our communities and fellow firefighters. In light of the greater demands for all of us to do more for life safety with fewer resources, we, of the Western Fire Chiefs Association, are confident this innovative service, which is zero cost to AHJs, will revolutionize your approach to code compliance and risk reduction. The Compliance Engine is a simple, internet based tool for Fire Prevention Bureaus to track and drive code compliance, reduce false alarm activity, and provide a safer community. It provides a secure cloud environment in which third party contractors that inspect, test, and maintain fire protection systems, can submit their reports via Brycer s web portal direct to the Authority Having Jurisdiction, facilitating a more efficient review, tracking, and follow-up process with occupants to correct deficiencies and maintain systems. Brycer also provides a proactive service, in addition to the web -based technology, that includes hard and soft copy notifications to help increase testing and maintenance activity in a given jurisdiction. The end result is a comprehensive and accurate aggregation of data around which buildings have what types of systems, when they were last tested, and if there are any open deficiencies that could jeopardize their successful deployment in the event of an incident. With The Compliance Engine, Fire Prevention Bureaus will be better equipped in their mission to drive 100% code compliance with life safely laws. As a result of this strategic partnership, WFCA wishes to help Brycer increase awareness of their technology and service. The purpose of this agreement is to ensure access to the latesl technology benefiting fire officials. Chief Jeffrey D. Johnson (Ret.) CEO, Western Fire Chiefs Association Compliance Engine Points — March 2015 EPODGIM 12917 Fitzwater Drive • Nokesville, VA 20181 571-229-9258 office 571-229-9260 fax OPEN RECORDS REQUEST March 23, 2015 Meridian, ID - Deputy City Clerk Attn: Ms Jacy Jones Fax: (208) 888-4218 Dear Ms Jones: We request certain records pertaining to all outstanding checks or other negotiable instruments, the amounts for which have not yet been paid to the payees listed thereon, that were drawn or issued by the Municipality more than six (6) months prior to the date of this letter (collectively, the "Outstanding Payments"). We further request certain records pertaining to all unclaimed funds otherwise in the possession of the Municipality (the "Unclaimed Funds"). Outstanding Payments and Unclaimed Funds are collectively referred to herein as "Unpaid Amounts" and each as an "Unpaid Amount". We request that you provide copies of such records that show as much of the following information pertaining to each Unpaid Amount as are in the possession of the Municipality: 1) the name of the payee or person entitled to the funds; 2) the date of the check or negotiable instrument or the date the amount otherwise became due from the Municipality; 3) the amount; 4) the address of the payee or person entitled to the funds; and 5) any notes of the Municipality's officers or staff concerning the Unpaid Amounts. This request excludes all records pertaining to Unpaid Amounts that have escheated to the state. It further excludes all records pertaining to Unpaid Amounts of less than $1,000 unless the sum of an Unpaid Amount of less than $1,000 and all other Unpaid Amounts payable to the same payee collectively exceed $1,000. Please provide the requested records in electronic form, if feasible. In lieu of the records requested, we will accept an excel spreadsheet detailing all of the above-described information (or as much thereof as is retrievable from the Municipality's records) pertaining to the Unpaid Amounts. We are prepared to pay any fees and charges assessable to our firm in connection with this request, up to the amount of $50.00. If the Municipality's fees for fulfilling this request exceed that amount, please contact the undersigned to discuss this matter. Sincerely, Allie Mayrovitz avaine@edgepoint.biz