HomeMy WebLinkAbout21-1215 Brycer LLCPURCHASE AGREEMENT
THIS AGREEMENT is hereby made and entered into this %J`*day of
2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as
"City") and Brycer, LLC, a Delaware limited liability company, (hereinafter referred to as "Brycer"
or "Seller").
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby
agree as follows:
1. TERM. This Agreement shall commence upon execution by both parties and shall terminate
December 31, 2024 (the "Initial Term"). Thereafter, the Term shall automatically renew for
successive one year periods unless terminated by either party hereto in writing as provided for herein.
The City shall have the right to terminate this Agreement at any time at the City's sole discretion
without penalty by giving by giving ninety (90) days written noticeto Brycer. Following the Initial
Term, each term shall hereinafter be referred to as a "Renewal Term", and together with the Initial
Term shall be hereinafter collectively referred to as the "Term". Following the expiration or
termination of the Term the City shall cease using the Solution; provided, however, Brycer shall
make available, and the City shall have the right to download -the City's data from the Solution for
a period of 60 days after the expiration or termination of the Term.
2. PURCHASE. Brycer shall provide to the City "the Compliance Engine" ("Solution"). The
use of the Solution and all matters between Brycer and the City will be subject to this Agreement
and Attachments A and B hereof, attached hereto and made a part hereof:
3. FEES. City 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. Cityshall not
pay any fees for use of the Solution.
4. TERMS. This Agreement shall be subject to and governed by the terms and provisions of
Exhibits A and B.
5. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois.
Venue for the resolution of any disputes or the enforcement of any rights arising out of or inconnection
with this agreement shall be the Circuit Court of Kane County, Illinois. Brycer hereby irrevocably
consents to the jurisdiction of the Circuit Court of Kane County, Illinois for theenforcement of any
rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this
agreement or the subject matter hereof; and Brycer agrees that service by first class U.S. mail to
Brycer LLC, 4355 Weaver Parkway, Suite 230, Warrrenville, IL 60555 shallconstitute effective
service. Both parties hereto waive any rights to a jury.
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6. NO MODIFICATION. There shall be no modification of this agreement, except in writing
and executed with the same formalities as the original.
7. MERGER. This agreement embodies the whole agreement of the parties. There are no
promises, terms, conditions or obligations other than those contained herein, and this agreement shall
supersede all previous communications, representations or agreements, either verbal, written or
implied between the parties hereto.
8. INTEREST. Brycer hereby waives any and all claims or rights to interest on money claimed
to be due pursuant to this agreement, and waives any and all such rights to interest to which it may
otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government
Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS
205/1, et seq. ), as amended. The provisions of this paragraph shall survive any expiration, completion
and/or termination of this agreement.
9. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the
terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any
reason, the remainder of this agreement shall remain in full force and effect.
10. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is
expressly agreed and understood that in connection with the performance of this agreement, Brycer
shall comply with all applicable federal, state, city and other requirements of law, including, but not
limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety
and legal status of employees. Without limiting the foregoing, Brycer hereby certifies, represents and
warrants to the City that all of Brycer's employees and/or agents who willbe providing products
and/or services with respect to this agreement shall be legally authorized to work in the United States.
Brycer shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give
all notices necessary and incident to the due and lawful prosecution ofthe work, and/or the products
and/or services to be provided for in this agreement. The City shall have the right to audit any records
in the possession or control of Brycer to determine Brycer's compliance with the provisions of this
section. In the event the City proceeds with such an audit, Brycer shall make available to the City
Brycer's relevant records at no cost to the City. City shall pay any and all costs associated with any
such audit.
11. EXECUTION. This agreement may be executed in counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement. For the purposes ofexecuting
this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be
treated in all manners and respects as an original document. The signature of any party ona copy of
this agreement transmitted by fax machine or e-mail shall be considered for thesepurposes as an
original signature and shall have the same legal effect as an original signature. Any such faxed or e-
mailed copy of this agreement shall be considered to have the same binding legal effect as an original
document. At the request of either party any fax or e-mail copy of this agreement shall be re -executed
by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-
mail as a defense to this agreement and shall forever waive such defense.
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12. CONFLICT. In the event of any conflict between the terms and provisions of this purchase
agreement and Attachments A and B hereto, the terns and provisions of this purchase agreement shall
supersede and control. In the event of any conflict between the terms and provisions of Attachments
A and B hereto, the terms and provisions of Attachment B shall supersede and control.
13. DELIVERY. Training shall commence on December 15, 2021, and the Solution shall "go
live" on January 1, 2022.
14. INDEMNIFICATION. Rrycer agrees to and shall indemnify, defend and hold harmless the
City, its officers, employees, boards and commissions from and against any and all claims, suits,
judgments, costs, attorney's fees, damages or any and all other relief or liability as set forth in
Attachment A. In the event of any action against the City, its officers, employees, agents, boards or
commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall
be defended by legal counsel of the City's choosing.
15. BRYCER RESPONSIBILITIES. Brycer shall be responsible for the following in
connection with City's use of the Solution:
Availability. Brycer shall make the Solution available to the City as set forth in Attachment B.
The maintenance schedule and minimum service levels for the Solution are as set forth in
Attachment 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 City 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 City (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 City a complete and secure (i.e. encrypted and appropriately authenticated)
download file of City 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 City data. Brycer shall not (a)
modify City data or (b) disclose City 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. No information shall be deleted or destroyed by Brycer unless prior written notice
thereof has been provided to the City and the City has had the opportunity to download and
retain such information.
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
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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 City 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 City -and all scripts for the overdue callswill be
approved by the City.
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 City free of any charge or fee.
16. CITY RESPONSIBILITIES: City shall be responsible for thefollowing in connection with
City's use of the Solution:
• Operating System. City 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 City's equipment (the "City Access Software") and for the
installation of network connections to the Internet. In addition to any other City Access
Software requirements, City must use version Edge, Firefox version76, Chrome 60 or Safari
(or more recent versions), in addition to having a .pdf reader installed on machines to view
attachments.
• Training. City shall allow Brycer at City's facilities to train all applicable personnel of City
on the use of the Solution.
• Information. City shall promptly provide Brycer with all appropriate information necessary
for Brycer to create the database for the Solution, including without limitation: (a) all building
addresses utilized by the City's Fire Department] for Brycer's initialupload; and (b) quarterly
updates to in a format acceptable to Brycer in its discretion.
• Enforcement. City shall take all actions necessary to require (e.g. resolution, ordinance, fire
policy, code amendment) the use of the Solution by third party inspection companies.
• Reports. City will require all compliant and deficient test results to be submitted.
17. OWNERSHIP OF DATA. City owns all the data provided by City and received from third party
contractors for City. Brycer shall maintain appropriate administrative, physical and technical safeguards for
protection of the security, confidentiality and integrity of City's data.
18. LIMITATION OF ACTIONS. The parties hereto agree that any action by Brycer arising
out of this Agreement must be filed within one (1) year of the date the alleged cause of action arose
or the same will be time barred. The provisions of this section shall survive any expiration, completion
and/or termination of this Agreement.
19. NO SPECIAL OR OTHER DUTY. No special duties or obligations are intended and shall
not be deemed or construed to be created by this agreement. Notwithstanding anything to the contrary
in this agreement, it is agreed and understood that no third party beneficiaries are intended or shall be
construed to be created by the provisions of this agreement and it is the intention of the parties hereto
that no action may be commenced by any person or entity against the City and/or Brycer and/or their
respective officials, officers, employees, agents and/or other related persons or entities for monetary
damages for any alleged breach or failure to provide services described in this
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agreement. The provisions of this section shall survive any expiration and/or termination of this
agreement.
20. ENTIRE AGREEMENT. This Agreement sets out the entire agreement between the parties
relative to the subject matter hereof and supersedes all prior or contemporaneous agreementsor
representations, oral or written.
The person signing this Agreement certifies that s/he has been authorized by the Seller to commit
the Seller contractually and has been authorized to execute this Agreement on its behalf.
IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above
written.
BRYCER,LLC
aw
Print Name
Signature
Pfrt&r
Title
6138363/ll13399.000
Attachment A
Terms and Conditions
Restrictions on Use. City shall not copy, distribute, create derivative
works of or modify the Solution in any way. City agrees that: (a) it shall
only permit its officers and employees (collectively, the "Authorized
Users") to use the Solution for the benefit of City; (b) it shall use
commercially reasonable efforts to prevent the unauthorized use or
disclosure of the Solution; (c) it shall not sell, resell, rent or lease the
Solution. (d) it shall not use the Solutionto store or transmit infringing
or otherwise unlawful or tortious material, or to store or transmit
material in violation of third party rights; (e) it shall not interfere with
or disrupt the integrity or performance of the Solution or third -party
data contained therein; (f) it shall not reverse engineer, translate,
disassemble, decompile or otherwise attempt to create any source code
which is derived from theSolution (g) it shall not permit anyone other
than the Authorized Usersto view or use the Solution and any screen
shots of the Solution and (h)ii shall not disclose the features of the
Solution to anyone other than the Authorized Users. City is responsible
for hll actions taken bythe Authorized Users in connection with the
Solution. , ,
Proprietary Rights. All right, title and interest in and to the Solution,
the features of the Solution and images of the Solution as well 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 "Documentation'), and any reproductions
works made thereof, remain with Brycer aty shall not remove any
product identification or notices of such proprietary rights from the
Solution.City acknowledges and agrees that, except for the limited use
rights established hereunder, City has no right, title or interest in the
Solution, the Derivative Works orthe 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 City and Bryceris an
independent contractor. Neither may assume, either directly or
indirectly, any liability of or for the other party, Neither party has the
authority to bind or obligate the other parry and neither party may
represent that it has such authority.
4. Reservation of Ri_ .ts. Brycer reserves the right, in its sole discretion
and with prior notice to City, to discontinue, add, adapt, or otherwise
modify any design or specification of the Solution and/or Brycer's
policies, procedures, and requirements specified or related hereto. All
rights not expressly granted to City are reserved to Brycer, including
the right to provide all or any part of the Solution toother parties.
5. Use of Loos. During the term of this Agreement, Brycer shall have
the right to use City's logos for the purpose of providing the Solution
to City_
6. Confidential Information. Brycer and City acknowledge and agree
that in providing the Solution, Brycer and City, as the case may be,
may disclose to the other party certain confidential, proprietary trade
secret information ("Confidential Information"). Confidential
Information shall include, but is not limited to, the Solution, computer
programs, screen shots, flowcharts, diagrams, manuals, schematics,
development tools, specifications, design documents, marketing
information, financial information or business plans. Each party
agrees that it will use commercially reasonable efforts not to disclose
any Confidential Information or any part thereof to any third party.
Notwithstanding the foregoing, the parties acknowledge that City and
Brycer shall be permitted to comply with any all federal and state laws
concerning disclosure. The disclosing party shall provide prior
written notice of any required disclosure of the nondisclosing party's
Confidential Information to the nondisclosing party and shall disclose
only the information that is required to be disclosed by law. In the
event that City requests from Brycer any reports or other information
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for purposes of complying with federal and state disclosure laws,
Brycer shall provide such information within five business day
following such request. Confidential Information excludes
information: (a) that is or becomes generally available to the 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 parry without use
of any Confidential Information. At the termination 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,
translate, modify, copy, printout, disassemble, decompile or otherwise
tamper with any Confidential Information of the other party or any
firmware, circuit board or software provided therewith.
Notwithstanding anything to the contrary provided for herein, the
City's good faith compliance with the Illinois Freedom of Information
Act (5 ILCS 140/1, et seq) shall not be construed as, and shall not can
statute a breach of this Agreement, and the City shall not incur any
penalty arising out of or in connection with its good faith compliance
with the aforementioned Freedom of Information Act; provided,
however; that the City shall in all instances treat Brycer's screen shots
as trade secrets.
Brycer Warranty. Brycer represents and warrants to City that Brycer
has all rights necessary in and to any patent, copyright, trademark,
service mark or other intellectual property right used in, orassociated
with, the Solution, and that Brycer is duly authorized to enter into this
Agreement and provide the Solution to City pursuant to this
Agreement.
Disclaimer. All information entered into Brycer's database is produced
by third party inspectors and their agents. THEREFORE, BRYCER
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY AS TO THE ACCURACY OR COMPLETENESS
OF ANY INFORMATION ENTERED INTO BRYCER'S
DATABASE BY EITHER CITY OR THIRD PARTY
INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7,
BRYCER MAKES 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 CITY'S SOLE
REMEDY, SHALL BE THAT BRYCER SHALL INDEMNIFY
AND HOLD RECIPIENT HARMLESSFROM AND AGAINST
ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING
OUT OF BREACH OF THE REPRESENTATION AND
WARRANTY.
9. LIMITATION ON DAMAGES. BOTH PARTIES SHALL ONLY
BE LIABLE TO THE OTHER PARTY FOR DIRECT
DAMAGES PURSUANT TO THE AGREEMENT. EXCEPT AS
OTHERWISE PROVIDED IN SECTION 7, IN NO EVENT
SHALL NEITHER PARTY BE LIABLE FOR OR OBLIGATED
IN ANY MANNER FOR SPECIAL, CONSEQUENTIAL, OR
INDIRECT DAMAGES
10. Rids Inherent to Internet. City 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, operate or manage the Internet. City also
acknowledges that there are inherent risks associated with using the
Solution, including but not limited to the risk of breachof security, the
risk of exposure to computer viruses and the risk of interception,
distortion, or loss of communications. City assumes these risks
knowingly and voluntarily releases Brycer from allliability from all
such risks. Not in limitation of the foregoing, City 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 die then -
current unmodified version provided to City; (3) City's failure to timely
or correctly install any updates to the City Access Software; (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) nonconformities resulting
from or problems to or caused by non-Brycerproducts or services; or (7)
data or data input, output, accuracy, and suitability, which shall be
deemed under City's exclusive control.
11. Indemnity. Brycer (the "Indemnifying Party") will defend and
indemnify City against any damages, losses, liabilities, causes ofaction,
costs or expenses arising from Brycer's breach of this Agreement,
gross negligence or intentional misconduct. City shall defend and
indemnify and hold Brycer harmless against any damages, losses,
liabilities, costs or expenses (excluding reasonable attorneys' fees)
arising from City's material_breach of this Agreement, gross
negligence or intentional misconduct. City acknowledges that Brycer
does not create any of the data and information included in the Solution
and is not responsible for and doesnot assess or make any suggestions
or recommendations with respect to any such data or infbrmation. City
shall defend and indemnify and hold Brycer harmless against any
damages, losses, liabilities, costs or expenses (excluding reasonable
attorneys' fees), claims, demands, suits or proceedings made orhrought
against Brycer by a third party in connection with City'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 City or
otherwise at City'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 CiVs rights hereunder, immediately upon
delivering written notice to City detailing City's breach of any
provision of this Agreement. If City cures such breach within 5 days of
receiving written notice thereof. Brycer shall restore the Solution and
City shall pay any fees or costs incurred by Brycer in connection with
the restoration of the Solution.
13. Illegal Payments, City 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 Majeure. 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, except that
a party's failure to make any payment when due hereunder shall not be
so excused.
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16. Naticos. 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 first class U.S. mail, postage prepaid, to the
last known address of each party, three business days slier mailing; or
(d) if delivered to a nationally recognized overnight courier service, one
business day after delivery.
17 Amen men . The Agreement may not be altered or modified, except
by written amendment which expressly refers to the Agreementand
which is duly executed by authorized representatives of both parties.
The waiver or failure by either party to exercise or enforce anyright
provided for in the Agreement shall not be deemed a waiver of any
further right under the Agreement. Any provision of the Agreement
held to be invalid under applicable law shall not render theAgreement
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 al I
of which together shall constitute one and the same instrument.
Attachment B
Maintenance Schedule and Minimum Service Levels
1. U time 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 City at least 99.5% of the time
or better and Brycer shall use reasonable efforts to provide City with advance notice of
any unscheduled downtime.
2. Response Time.
Brycer shall respond to telephone calls from City within two hours of the call and/or
message and all en -tails from City within two hours of the receipt of theemail.
3. Customer Support
Customer support hours are 24/7/365. The toll free number is 1-855-279-2371
Brycer will assign City a dedicated customer representative with direct access totheir
email and work dumber.
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