HomeMy WebLinkAboutCAG2019-402 - Original - Rental Housing Inspection Program Software KENO Records Management Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253-856-5725.
Vendor Name:
BRYCER, LLC
Vendor Number ()DE): No money transaction no vendor number needed
Contract Number (City Clerk):
Category: -Software agreement
Sub-Category (if applicable): None
Project Name: Rental Housing Inspection Program Software
Contract Execution Date: 4/18/2019 Termination Date: 5/01/2022
Contract Manager: Erin George Department: ECD
Contract Amount: $0
Budgeted: 1-1 Grant?
Part of NEW Budget: ❑ Local: State: ❑ Federal:
Related to a New Position: ❑ Notice required prior to public disclosure? No
Basis for Selection of Contractor? Direct Negotiation
Approval Authority: ❑✓ Director Mayor ❑ City Council
Other Details:
BRYCER,LLC
4355 Weaver Parkway
Suite 230
Warrenville,IL 60555
March 151h,2019
City of Kent Economic&Community Development Department
400 West Gowe
Kent,WA 98032
Re: "The Compliance Engine"
Dear City of Kent Economic&Community Development Department:
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 Kent Economic
& Community Development 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 May 111,
2019(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 Solution;
provided, however, Brycer shall make available,and Client shall have the right to download, Client's data
from the Solution for a period of 60 days after the expiration or termination of the Term. Client shall have
the right to terminate this agreement upon giving 90 days written notice to Brycer.
2. Fees: Client shall not pay any fees for use of the Solution. Brycer will collect all fees due
and payable by third party inspectors in connection with activities relating to the Solution. The fee collected
by Brycer shall not change during the Initial Term,and Brycer shall notify Client of any anticipated change
in the fee at least 120 days prior to the end of the Initial Term and at least 120 days prior to the end of any
subsequent Term.
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 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,
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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 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 (March 151, June I s, September 111); (b) notices that an inspection is past due; (c)
notices of completed inspection reports which contain one or more deficiencies;;and(d)
notice of failure to correct deficient items(30 or 60 days depending on deficient items).
• 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, if deemed necessary by client.
• 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 I multifamily building addresses within (jurisdiction] for Brycer's initial upload;
and(b)quarterly updates to addresses in a format acceptable to Brycer in its discretion.
• Enforcement. Client shall take all actions necessary to require(including but not limited
too; resolution, ordinance, fire policy, code amendment) the use of the Solution by third
party inspection companies.
• Reports. Client will require all inspection 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.
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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 —
By:
Its: Oir.c
Acknowledged and Agreed tot is
day of,± ( 20 19
[CLIENT]
By:
Its: lov
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Exhibit A
Terms and Conditions
Any capitalized terms not defined in these Terms and Conditions shall have the meaning assigned to it in that certain Letter Agreement
attached hereto by and between Brycer,LLC and Client(the"Agreement).
1. Restrictions on Use. Client shall not copy,distribute,create derivative excludes information: (a)that is or becomes generally available to the
works of or modify the Solution in any way. Client agrees that:(a)it public through no fault of the receiving patty; (b)that is rightfully
shall only permit its officers and employees (collectively, the received by the receiving party from a third party without limitation as
"Authorized Users")to use the Solution for the benefit of Client;(b)it to its use; or(c)that is independently developed by receiving party
shall use commercially reasonable efforts to prevent the unauthorized without use of any Confidential Information. At the termination of this
use or disclosure of the Solution;(c)it shall not sell,resell,rent or lease Agreement, each party will return the other party all Confidential
the Solution; (d) it shall not use the Solution to store or transmit Information of the other party. Each party also agrees that it shall not
infringing or otherwise unlawful or tortious material,or to store or duplicate,translate,modify,copy,printout,disassemble,dccompilc or
transmit material in violation of third party rights; (c) it shall not otherwise tamper with any Confidential Information of the other party
interfere with or disrupt the integrity or performance of the Solution or or any firmware,circuit board or software provided therewith.
third-party data contained therein; (f) it shall not reverse engineer,
translate,disassemble,decompile or otherwise attempt to create any 7. Brycer Warranty. Brycer represents and warrants to Client that Brycer
source code which is derived from the Solution(g)it shall not permit has all rights necessary in and to any patent, copyright, trademark,
anyone other than the Authorized Users to view or use the Solution and service mark or other intellectual property right used in,or associated
any screen shots of the Solution and(h)it shall not disclose the features with,the Solution,and that Brycer is duly authorized to enter into this
of the Solution to anyone other than the Authorized Users. Client is Agreement and provide the Solution to Client pursuant to this
responsible for all actions taken by the Authorized Users in connection Agreement.
with the Solution.
S. Disclaimer. All information entered into Brycer's database is produced
'_. Proprietary Rights. All right,title and interest in and to the Solution, by third party inspectors and their agents.THEREFORE,BRYCER
the features of the Solution and images of the Solution as well any and SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
all derivative works or modifications thereof(the*'Derivative Works7, WARRANTY AS TO THE ACCURACY OR COMPLETENESS
and any accompanying documentation. manuals or other materials OF ANY INFORMATION ENTERED INTO BRYCER'S
used or supplied under this Agreement or with respect to the Solution DATABASE BY EITHER CLIENT OR THIRD PARTY
or Derivative Works(the-Documentation'),and any reproductions INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7,
works made thereof,remain with Brycer. Client shall not remove any BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR
product identification or notices of such proprietary rights from the IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY
Solution. Client acknowledges and agrees that,except for the limited OTHER INFORMATION AND ALL OTHER WARRANTIES,
use rights established hereunder,Client has no right,title or interest in WHETHER EXPRESS OR IMPLIED, ARE HEREBY
the Solution,the Derivative Works or the Documentation. DISCLAIMED, INCLUDING,WITHOUT LIMITATION,THE
]IMPLIED WARRANTIES OF MERCHANTABILITY AND
3. Independent Contractor. Nothing in the Agreement may be construed FITNESS FOR A PARTICULAR PURPOSE. BRYCER'S SOLE
or interpreted as constituting either party hereto as the agent,principal, LIABILITY FOR BREACH OF THE REPRESENTATION AND
employee or joint venturer of the other. Each of Client and Brycer is WARRANTY SET FORTH IN SECTION 7, AND CLIENT'S
an independent contractor. Neither may assume, either directly or SOLE REMEDY, SHALL BE THAT BRYCER SHALL
indirectly,any liability of or for the other party. Neither party has the INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM
authority to bind or obligate the other patty and neither party may AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR
represent that it has such authority. DEFENSE ARISING OUT OF BREACH OF THE
REPRESENTATION AND WARRANTY.
d. Reservation of Rights. Brycer reserves the right,in its sole discretion
and with prior notice to Client,to discontinue,add,adapt,or otherwise 9. LI 1TATION ON DAMAGES. BRYCER SHALL ONLY BE
modify any design or specification of the Solution and/or Brycer's LIABLE TO CLIENT FOR DIRECT DAMAGES PURSUANT
policies,procedures,and requirements specified or related hereto. All TO THE AGREEMENT. EXCEPT AS OTHERWISE
rights not expressly granted to Client are reserved to Brycer,including PROVIDED IN,SECTION 7, IN NO EVENT SHALL BRYCER
the right to provide all or any part of the Solution to other parties. BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR
SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES,
5. Use of Lo&s. During the term of this Agreement,Brycer shall have INCLUDING,BUT NOT LIMITED TO,LOSS OF USE,LOSS
the right to use Client's logos for the purpose of providing the Solution OF PROFITS OR SYSTEM DOWNTIME, CLIENT
to Client. ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL
BRYCER'S LIABILITY FOR ANY LOSS OF DATA OR DATA
6. Confidential Information. Bryccr and Client acknowledge and agree INTEGRITY EXCEED THE REPLACEMENT COST OF THE
that in providing the Solution,Brycer and Client,as the case may be, MEDIA ON WHICH THE DATA WAS STORED.
may disclose to the other party certain confidential,proprietary trade
secret information ("Confidential Information"). Confidential 10. Ricks inherent to Internet. Client acknowledges that:(a)the Internet is
Information may include,but is not limited to,the Solution,computer a worldwide network of computers,(b)communication on the Internet
programs, flowcharts, diagrams, manuals, schematics, development may trot be secure,(c)the Internet is beyond the control of Brycer,and
tools, specifications, design documents, marketing information, (d)Brycer does not own,operate or manage the Internet. Client also
financial information or business plans. Each party agrees that it will acknowledges that there are inherent risks associated with using the
not, without the express prior written consent of the other party, Solution,including but not limited to the risk of breach of security,the
disclose any Confidential information or any part thereof to any third risk of exposure to computer viruses and the risk of interception,
party. Notwithstanding the foregoing,the parties acknowledge that distortion, or loss of communications. Client assumes these risks
Client and Brycer shall be permitted to comply with any all federal and knowingly and voluntarily releases Brycer from all liability from all
state laws concerning disclosure shots. The disclosing party shall such risks. Not in limitation of the foregoing,Client hereby assumes
provide prior written notice of any required disclosure of the the risk,and Brycer shall have no responsibility or liability of any kind
nondiselosing party's Confidential Information to the nondisclosing hereunder, for: (1) errors in the Solution resulting from misuse.
party and shall disclose only the information that is required to be negligence,revision,modification,or improper use of all or any part of
disclosed by law. In the event that Client requests from Brycer any the Solution by any entity other than Brycer or its authorized
reportsor other information for purposesof complying with federal and representatives;(2) any version of the Solution other than the then-
state disclosure laws,Brycer shall provide such information within five current unmodified version provided to Client.(3)Client's failure to
business day following such request. Confidential Information timely or correctly install any updates to the Client Access Software;
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(4)problems caused by connecting or failure to connect to the Internet; obtained;(c)if mailed by certified mail,postage prepaid,to the last
(5) failure to provide and maintain the technical and connectivity known address of each party,three business days after mailing.or(d)
configurations for the use and operation of the Solution that meet if delivered to a nationally recognized overnight courier service,one
Brycer's recommended requirements; (6) ronconformities resulting business day after delivery.
from or problems to or caused by non-Brycer products or services;or
(7)data or data input,output,accuracy,and suitability,which shall be 17. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE
deemed under Client's exclusive control. GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE
11. Wernnity. Brycer (the "Indemnifying Part)') will defend and LAWS OF THE STATE IN WHICH CLIENT EXISTS APPLICABLE
indemnify Client against any damages, losses, liabilities, causes of TO CONTRACTS MADE IN SUCH STATE AND THAT ARE TO
action, costs or expenses arising from Brycer's breach of this BE WHOLLY PERFORMED IN SUCH STATE WITHOUT
Agreement, gross negligence or intentional misconduct. Client will REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF SUCH
defend and indemnify Brycer against any damages,losses,liabilities, STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL
costs or expenses(including reasonable attorneys' fees)arising from ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR
Client's breach of this Agreement, gross negligence or intentional RESPECT ARISING OUT OF OR FROM OR RELATED TO THE
misconduct. Client acknowledges that Brycer does not create any of AGREEMENT SHALL BE LITIGATED ONLY IN COURTS
the data and information included in the Solution and is not responsible LOCATED WITHIN THE STATE IN WHICH CLIENT EXISTS.
for and does not assess or make any suggestions or recommendations THE PARTIES HEREBY CONSENT AND SUBMIT TO THE
with respect to any such data or information. Client will defend and EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR
indemnify Brycer against any damages, losses, liabilities, costs or FEDERAL COURT LOCATED WITHIN SAID STATE. THE
expenses(including reasonable attorneys'fees),claims,demands,suits PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
or proceedings made or brought against Brycer by a third party in TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR
connection with Client's or an Authorized User's use of the Solution. PROCEEDING ARISING OUT OF OR RELATING TO THIS
or any action or inaction taken by a third party, including, but not AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL
limited to,third party inspectors,in connection with such third party BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR
providing services for Client or otherwise at Client's or an Authorized DEFEND ANY RIGHTS UNDER THE. AGREEMENT, AND
User's request or direction. AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
12. Breach. Bryccr shall have the right to terminate or suspend this
Agreement, and all of Client's rights hereunder, immediately upon 18. Attornevs Fees. The prevailing party in any proceeding in connection
delivering written notice to Client detailing Client's breach of any with the Agreement shall be entitled to recover from the ran-prevailing
provision ofthis Agreement. If Client cures such breach within 5 days party all costs and expenses,including without limitation,reasonable
of receiving written notice thereof, Brycer shall restore the Solution attorneys' and paralegals' fees and costs incurred by such party in
and Client shall pay any fees or costs incurred by Brycer in connection connection with any such proceeding.
with the restoration of the Solution.
19. Entire Agreement. The Agreement sets out the entire agreement
13. llleeal Paymentts. Client acknowledges and agrees that it has not between the parties relative to the subject matter hereofand supersedes
received or been offered any illegal or improper bribe, kickback, all prior or contemporaneous agreements or representations, oral or
payment, gift or anything of value from any employee or agent of written.
Brycer in connection with the Agreement.
20. Amendment. The Agreement may not be altered or modified,except
14. Beneficiaries There are no third party beneficiaries to the Agreement. by%written amendment which expressly refers to the Agreement and
which is duly executed by authorized representatives of both parties
15. ,Force Maicure. Neither party shall be responsible for any failure to The waiver or failure by either party to exercise or enforce any right
perform due to unforeseen,ton-commercial circumstances beyond its provided for in the Agreement shall not be deemed a waiver of any
reasonable control,including but not limited to acts of God,war,riot, further right under the Agreement. Any provision of the Agreement
embargoes, acts of civil or military authorities, fire. floods, held to be invalid under applicable law shall not render the Agreement
earthquakes,blackouts,accidents,or strikes. In the event ofany such invalid as a whole, and in such an event, such provision shall be
delay,any applicable period of time for action by said party may be interpreted so as to best accomplish the intent of the parties within the
deferred for a period of time equal to the time of such delay,except limits law. The Agreement may be executed by facsimile
that a party's failure to make any payment when due hereunder shall and in counterparts,each of which shall be deemed an original,and all
not be so excused. of which together shall constitute one and the same instrument.
16. Notices All notices required in the Agreement shall be effective:(a) 21, Eoiration. The rights and obligations contained in these Terms and
if given personally,upon receipt;(b)if given by facsimile or electronic Conditions shall survive any expiration or termination of the
trail, when such notice is transmitted and confirmation of receipt Agreement.
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Exhibit B
Maintenance Schedule and Minimum Service Levels
1. Lptime and Maintenance.
The Solution shall be available 24 hours per day during the term of this Agreement. The
Solution shall be fully functional, timely and accessible by Client at least 99.5% of the
time or better and Brycer shall use reasonable efforts to provide Client with advance
notice of any unscheduled downtime.
2. Response Time.
Developer shall respond to telephone calls from Client within two hours of the call andf 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.
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