HomeMy WebLinkAbout2018-013-Service Agreement for Solution Services
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G:Uegal\DEPARTMENTS\Contracting\FORMS\Legal Doc Transmittal - KLB.doex
SERVICE AGREEMENT FOR SOLUTION SERVICES
This Service Agreement (hereinafter referred to as the "Agreement") is made and entered into by and
between Brycer, LLC, (hereinafter referred to as "Brycer"), and the City of Ashland, Oregon, a municipal
corporation (hereinafter referred to as "Client"), and sets forth the basic terms by which Brycer will
provide Client with "The Compliance Engine" (hereinafter referred to as the "Solution"). The use of the
Solution by Client will be subject to the standard "Terms and Conditions" which are attached to this
Agreement as Exhibit A and incorporated herein by this reference.
1. Term: Brycer will provide Client with the Solution for three years, commencing January 1,
2018 (the "Initial Term"). Thereafter, the Term shall automatically renew for successive one-year periods
unless terminated by Brycer or Client in writing at least thirty (30) 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 this Agreement, 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 sixty (60) days after the expiration or termination of this Agreement. Client shall have the right
to terminate this Agreement for any reason whatsoever upon giving not less than sixty (60) days' prior
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 of this Agreement, 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 in Exhibit B
which is attached hereto and incorporated herein by this reference. The maintenance
schedule and minimum service levels for the Solution are set forth in 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 in which the Solution is being
hosted on a real time basis. Upon written request by Client at any time, or within sixty (60)
days after the expiration or termination of this Agreement, Brycer will make available to
Client a complete and secure (i.e. encrypted and appropriately authenticated) electronic 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 all Client data. Brycer shall not:
(a) modify Client data, or (b) disclose Client data, except as expressly required by law.
• Retention oflnformation. Brycer will maintain all information entered into the Solution's
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 Brycer shall make all possible phone calls on behalf of the Client to the
property for EACH life-safety system overdue for service based on dates automatically
tracked within the Solution's TCE database Brycer is not an agent of the Client and all
scripts for the overdue calls will be approved by the Client.
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• Updates and Enhancements. In the event Brycer releases any updates, corrections, or
enhancements to the Solution during the Term of this Agreement, Brycer shall promptly
provide such updates or corrections to Client free of any charge or fee.
4. Client Responsibilities: During the Term of this Agreement, 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 Client's jurisdiction for Brycer's initial
upload; and (b) quarterly updates in a format acceptable to Brycer.
• Enforcement. Client shall take all actions necessary to enable (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 on behalf of Client. Brycer shall maintain appropriate administrative, physical, and
technical safeguards for the protection of the security, confidentiality, and integrity of Client's and Client
contractor's data.
IN WITNESS WIIEREOF, the parties have caused this Agreement to be signed in their respective names
by their duly authorized representatives as of the dates set forth below:
(Client) (Brycer)
CITY OF ASHLAND, OREGON BRYCER, LLC
20 East Main 4355 Weaver Parkway
Ashland, OR 97520 Suite 330
Warrenville, IL 60555
By: r -
By:
Printed Name: Z1CGC/ S/ , .a /
Printed Name:
Its: 6' C~-
Its:
Acknowledged and
Agreed to this day of 20_/__,' Acknowledged and
Agreed to this Z7day of C6i , 20 17
APPROYED AS O~F RM
Ashland Asst. City Attomey -
Pa e 2 of 8
EXMIT A
TERMS AND CONDITIONS
Any capitalized term not defined in these Terms and Conditions shall have the meaning assigned
to it in that certain Service Agreement by and between Brycer, LLC and Client (the "Agreement), to which
this Exhibit A is attached.
1. Restrictions on Use. Client shall not copy, independent contractor. Neither may assume,
distribute, create derivative works of or modify either directly or indirectly, any liability of or
the Solution in any way. Client agrees that: (a) for the other party. Neither party has the
it shall only permit its officers and employees authority to bind or obligate the other party and
(collectively, the "Authorized Users") to use neither party may represent that it has such
the Solution for the benefit of Client; (b) it shall authority.
use commercially reasonable efforts to prevent
the unauthorized use or disclosure of the 4. Reservation of Rights. Brycer reserves the
Solution; (c) it shall not sell, resell, rent or lease right, in its sole discretion and with prior
the Solution; (d) it shall not use the Solution to written notice to Client, to discontinue, add,
store or transmit infringing or otherwise adapt, or otherwise modify any design or
unlawful or tortious material, or to store or specification of the Solution and/or Brycer's
transmit material in violation of third party policies, procedures, and requirements
rights; (e) it shall not interfere with or disrupt specified or related hereto. All rights not
the integrity or performance of the Solution or expressly granted to Client are reserved to
third-party data contained therein; and (f) it Brycer, including the right to provide all or any
shall not reverse engineer, translate, part of the Solution to other parties.
disassemble, decompile or otherwise attempt to
create any source code which is derived from 5. Use of Logos. During the term of this
the Solution. Client is responsible for all Agreement, Brycer shall have the right to use
actions taken by the Authorized Users in Client's logos for the sole purpose of providing
connection with the Solution. the Solution to Client.
2. Proprietary Rights. All right, title and interest 6. Confidential Information. Brycer and Client
in and to the Solution and any and all derivative acknowledge and agree that in providing the
works or modifications thereof (the "Derivative Solution, Brycer and Client, as the case may be,
Works"), and any accompanying may disclose to the other party certain
documentation, manuals or other materials confidential, proprietary, or trade secret
used or supplied under this Agreement or with information ("Confidential Information").
respect to the Solution or Derivative Works (the Confidential Information may include, but is
"Documentation"), and any reproductions not limited to, the Solution, computer
works made thereof, remain with Brycer. programs, flowcharts, diagrams, manuals,
Client shall not remove any product schematics, development tools, specifications, -
identification or notices of such proprietary design documents, marketing information,
rights from the Solution. Client acknowledges financial information or business plans. Each
and agrees that, except forthe limited use rights party agrees that it will not, without the express
established hereunder, Client has no right, title prior written consent of the other party, disclose
or interest in the Solution, the Derivative any Confidential Information or any part
Works or the Documentation. thereof to any third party. Confidential
Information excludes information: (a) that is or
3. Independent Contractor. Nothing in the becomes generally available to the public
Agreement may be construed or interpreted as through no fault of the receiving party; (b) that
constituting either party hereto as the agent, is rightfully received by the receiving party
principal, employee or joint venturer of the from a third party without limitation as to its
other. Each of Client and Brycer is an use; or (c) that is independently developed by
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receiving party without use of any Confidential RECIPIENT HARMLESS FROM AND
Information. At the expiration or termination AGAINST ANY LOSS, SUIT, DAMAGE,
of this Agreement, each party will return the CLAIM OR DEFENSE ARISING OUT OF
other party all Confidential Information of the BREACH OF THE REPRESENTATION
other party. Each party also agrees that it shall AND WARRAN'T'Y.
not duplicate, translate, modify, copy, printout,
disassemble, decompile or otherwise tamper 9. LIMITATION ON DAMAGES. EXCEPT
with any Confidential Information of the other AS OTHERWISE PROVIDED IN
party or any firmware, circuit board or software SECTION 71 IN NO EVENT SHALL
provided therewith. Notwithstanding the BRYCER BE LIABLE FOR OR
foregoing, the parties acknowledge that Client OBLIGATED IN ANY MANNER FOR
shall be permitted to comply with any all SPECIAL, CONSEQUENTIAL, OR
federal and state laws concerning disclosure. INDIRECT DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF USE,
7. Brvcer Warranty. Brycer represents and LOSS OF PROFITS OR SYSTEM
warrants to Client that Brycer has all rights DOWNTIME. CLIENT
necessary in and to any patent, copyright, ACKNOWLEDGES AND AGREES THAT
trademark, service mark or other intellectual IN NO CASE SHALL BRYCER 'S
property right used in, or associated with, the LIABILITY FOR ANY LOSS OF DATA
Solution, and that Brycer is duly authorized to OR DATA INTEGRITY EXCEED THE
enter into this Agreement and provide the REPLACEMENT COST OF THE MEDIA
Solution to Client pursuant to this Agreement. ON WHICH THE DATA WAS STORED.
8. Disclaimer. All information entered into 10. Risks Inherent to Internet. Client
Brycer's database is produced by third party acknowledges that: (a) the Internet is a
inspectors and their agents. THEREFORE, worldwide network of computers, (b)
BRYCER SPECIFICALLY DISCLAIMS communication on the Internet may not be
ANY REPRESENTATION OR secure, (c) the Internet is beyond the control of
WARRANTY AS TO THE ACCURACY Brycer, and (d) Brycer does not own, operate or
OR COMPLETENESS OF ANY manage the Internet. Client also acknowledges
INFORMATION ENTERED INTO that there are inherent risks associated with
BRYCER'S DATABASE BY EITHER using the Solution, including but not limited to
CLIENT OR THIRD PARTY the risk of breach of security, the risk of
INSPECTORS. EXCEPT ASSET FORTH exposure to computer viruses and the risk of
IN SECTION 71 BRYCER MAKES NO interception, distortion, or loss of
OTHER WARRANTY, EXPRESS OR communications. Client assumes these risks
IMPLIED, WITH RESPECT TO THE knowingly and voluntarily and indemnifies and
SOLUTION OR ANY OTHER holds Brycer harmless from all liability from all
INFORMATION AND ALL OTHER such risks. Not in limitation of the foregoing,
WARRANTIES, WHETHER EXPRESS Client hereby assumes the risk, and Brycer
OR LVIPLIED, ARE HEREBY shall have no responsibility or liability of any
DISCLAIMED, INCLUDING, WITHOUT kind hereunder, for: (1) errors in the Solution
LIMITATION, THE IMPLIED resulting from misuse, negligence, revision,
WARRANTIES OF modification, or improper use of all or any part
MERCHANTABILITY AND FITNESS of the Solution by any entity other than Brycer
FOR A PARTICULAR PURPOSE. or its authorized representatives; (2) any
BRYCER'S SOLE LIABILITY FOR version of the Solution other than the then-
BREACH OF THE REPRESENTATION current unmodified version provided to Client;
AND WARRANTY SET FORTH IN (3) Client's failure to timely or correctly install
SECTION 7, AND CLIENT'S SOLE any updates to the Client Access Software; (4)
REMEDY, SHALL BE THAT BRYCER problems caused by connecting or failure to
SHALL INDEMNIFY AND HOLD connect to the Internet; (5) failure to provide
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and maintain the technical and connectivity 15. Force Majeure. Neither party shall be
configurations for the use and operation of the responsible for any failure to perform due to
Solution that meet Brycer's recommended unforeseen, non-commercial circumstances
requirements; (6) nonconformities resulting beyond its reasonable control, including but not
from or problems to or caused by non-Brycer limited to acts of God, war, riot, embargoes,
products or services; or (7) data or data input, acts of civil or military authorities, fire, floods,
output, accuracy, and suitability, which shall be earthquakes, blackouts, accidents, or strikes. In
deemed under Client's exclusive control. the event of any such delay, any applicable
period of time for action by said party may be
11. Indemni . Each party (the "Indemnifying deferred for a period of time equal to the time
Party") will defend and indemnify the non- of such delay, except that a party's failure to
indemnifying party against any damages, make any payment when due hereunder shall
losses, liabilities, causes of action, costs or not be so excused.
expenses (including reasonable attorneys' fees)
arising from the Indemnifying Party's breach of 16. Notices. All notices required in the Agreement
this Agreement, gross negligence or intentional shall be given as follows:
misconduct. Client will defend and indemnify
Brycer against any damages, losses, liabilities, If to Brycer:
costs or expenses (including reasonable 4355 Weaver Parkway
attorneys' fees), claims, demands, suits or Suite 330
proceedings made or brought against Brycer by Warrenville, IL 60555
a third party in connection with Client's or an
Authorized User's use of the Solution, or any If to Client:
action or inaction taken by a third party, CITY OF ASHLAND, OREGON
including, but not limited to, third party 20 East Main
inspectors, in connection with such third party Ashland, OR 97520
providing services for Client or otherwise at
Client's or an Authorized User's request or All notice shall be effective: (a) if given
direction personally, upon receipt; (b) if given by
facsimile or electronic mail, when such notice
is transmitted and confirmation of receipt
12. Breach. Brycer shall have the right to terminate obtained; (c) if mailed by certified mail,
or suspend this Agreement, and all of Client's postage prepaid, to the last known address of
rights hereunder, immediately upon delivering each party, three business days after mailing; or
written notice to Client detailing Client's (d) if delivered to a nationally recognized
breach of any provision of this Agreement. If overnight courier service, one business day
Client cures such breach within five (5) after delivery.
business days of receiving written notice
thereof, Brycer shall restore the Solution and 17. Assignment. This Agreement may not, be
Client shall pay any fees or costs incurred by assigned or transferred by Client without the
Brycer in connection with the restoration of the prior, written consent of Brycer and any
Solution. purported transfer in violation of this section
shall be null and void. This Agreement shall be
13. Illegal Payments. Client acknowledges and binding upon and inure to the benefit of the
agrees that it has not received or been offered parties thereto and their respective successors
any illegal or improper bribe, kickback, and representatives.
payment, gift or anything of value from any
employee or agent of Brycer in connection with 18. JURISDICTION AND VENUE. THE
this Agreement. AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND INTERPRETED IN
14. Beneficiaries. There are no third party ACCORDANCE WITH, AND
beneficiaries to this Agreement. ENFORCEABLE UNDER, THE LAWS OF
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THE STATE OF OREGON. EXCLUSIVE the Agreement held to be invalid under
VENUE FOR LITIGATION OF ANY applicable law shall not render the Agreement
ACTION ARISING UNDER THIS invalid as a whole, and in such an event, such
AGREEMENT SHALL BE IN THE CIRCUIT provision shall be interpreted so as to best
COURT OF THE STATE OF OREGON FOR accomplish the intent of the parties within the
JACKSON COUNTY UNLESS EXCLUSIVE limits of applicable law. The Agreement may
JURISDICTION IS IN FEDERAL COURT, be executed in counterparts, each ofwhich shall
IN WHICH CASE EXCLUSIVE VENUE be deemed an original, and all of which
SHALL BE IN THE FEDERAL DISTRICT together shall constitute one and the same
COURT FOR THE DISTRICT OF OREGON. instrument.
EACH PARTY EXPRESSLY WAIVES ANY
AND ALL RIGHTS TO MAINTAIN AN 22. Expiration. The rights and obligations
ACTION UNDER THIS AGREEMENT IN contained in these Terms and Conditions shall
ANY OTHER VENUE, AND EXPRESSLY survive any expiration or termination of this
CONSENTS THAT, UPON MOTION OF Agreement.
THE OTHER PARTY, ANY CASE MAY BE
DISMISSED OR ITS VENUE 23. The following laws of the State of Oregon are
TRANSFERRED, AS APPROPRIATE, SO hereby incorporated by reference into this
AS TO EFFECTUATE THIS CHOICE OF Agreement: ORS 279B.220, ORS 279B.230,
VENUE. THE PARTIES WAIVE ANY and ORS 279B.235.
RIGHT TO TRIAL BY JURY ON ANY
ACTION OR PROCEEDING TO ENFORCE 24. Brycer shall obtain and maintain in effect at its
OR DEFEND ANY RIGHTS UNDER THE sole expense during the Term of this
AGREEMENT, AND AGREE THAT ANY Agreement a policy or policies of liability
SUCH ACTION OR PROCEEDING SHALL insurance including commercial general
BE TRIED BEFORE A COURT AND NOT liability insurance with a combined single limit,
BEFORE A JURY. or the equivalent, of not less than $1,000,000
(one million dollars) per occurrence for Bodily
19. Attorneys' Fees. The prevailing parry in any Injury and Property Damage. Such insurance
proceeding in connection with this Agreement shall include personal injury, contractual
shall be entitled to recover from the non- liability, and products/completed operations
prevailing party all costs and expenses, coverage.
including without limitation, reasonable
attorneys' and paralegals' fees and costs 25. Brycer agrees that no person shall, on the
incurred by such party in connection with any grounds of race, color, religion, creed, sex,
such proceeding. marital status, familial status or domestic
partnership, national origin, age, mental or
20. Entire Agreement. This Agreement sets out the physical disability, sexual orientation, gender
entire agreement between the parties relative to identity or source of income, suffer
the subject matter hereof and supersedes all discrimination in the performance of this
prior or contemporaneous agreements or Agreement when employed by Brycer. Brycer
representations, oral or written. agrees to comply with all applicable
requirements of federal and state civil rights
21. Amendment. This Agreement may not be and rehabilitation statutes, rules and
altered or modified, except by written regulations. Further, Brycer agrees not to
amendment which expressly refers to the discriminate against a disadvantaged business
Agreement and which is duly executed by enterprise, minority-owned business, woman-
authorized representatives of both parties. The owned business, a business that a service-
waiver or failure by either party to exercise or disabled veteran owns or an emerging small
enforce any right provided for in the Agreement business enterprise certified under ORS
shall not be deemed a waiver of any further 200.055, in awarding subcontracts as required
right under the Agreement. Any provision of by ORS 279A.110
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26. Brycer's compliance with Tax Law:
(2) Brycer represents and warrants that, for a
(1) Brycer represents and warrants to the Client period of no fewer than six (6) calendar years
that Brycer shall, throughout the term of this preceding the Effective Date of this Agreement, it
Agreement, including any extensions has faithfully complied with:
hereof, comply with: (i) All tax laws of the State of Oregon, including but
(i) All tax laws of the State of Oregon, not limited to ORS 305.620 and ORS chapters 316,
including but not limited to ORS 305.620 317, and 318;
and ORS Chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political
(ii) Any tax provisions imposed by a subdivision of the State of Oregon applicable to
political subdivision of the State of Oregon Brycer; and
applicable to Brycer; and (iii) Any rules, regulations, charter provisions, or
(iii) Any rules, regulations, charter ordinances that implement or enforce any of the
provisions, or ordinances that implement or foregoing tax laws or provisions.
enforce any of the foregoing tax laws
or provisions.
r
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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 (2) hours of the call and/or
message and all emails from Client within two (2) 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.
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