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HomeMy WebLinkAboutC2019-015 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND BRYCER,LLC THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into as of January 1, 2019 between the Town of Fountain Hills, an Arizona municipal corporation (the "Town")and Brycer, LLC, a(n)Delaware limited liability company (the"Vendor"). RECITALS A. The Vendor is the creator and provider of The Compliance Engine, which is a web-based technology service and analytic tool for fire prevention bureaus to track and drive inspection and testing code compliance, reduce false alarm activity, and provide a safer community(the "Services"). B. The Services are offered at no cost to the Town and are instead paid for by third- party service providers. C. Pursuant to Section 5.4 of the Town Procurement Policy, no-cost contracts must be awarded using a competitive process that is appropriate to the value,complexity and profile of the business opportunity. D. No entity other than Vendor exists that could provide the Services in a manner or method similar to that of the Vendor, and therefore no competitive procurement process is possible under the circumstances. E. The Town desires to enter into an Agreement with the Vendor to perform the Services at no cost to the Town, as more particularly set forth below. AGREEMENT NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which are incorporated herein by reference, the following mutual covenants and conditions, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and the Vendor hereby agree as follows: 1. Term of Agreement. This Agreement shall be effective as of the date first set forth above and shall remain in full force and effect until January 1, 2022 (the "Initial Term"), unless terminated as otherwise provided in this Agreement. After the expiration of the Initial Term, this Agreement may be renewed for up to two successive three-year terms (each, a "Renewal Term") if(i) it is deemed in the best interests of the Town, (ii) at least 30 days prior to the end of the then-current term of this Agreement,the Vendor requests, in writing,to extend this Agreement for an additional three-year term and (iii) the Town approves the additional three- year term in writing, as evidenced by the Town Manager's signature thereon, which approval may be withheld by the Town for any reason. The Vendor's failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of the then-current term of this Agreement; provided, however, that the Town may, at its discretion and with the agreement of the Vendor, elect to waive this requirement and renew this Agreement. The Initial Term and any Renewal Term(s) are collectively referred to herein as the "Term." Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. 2. Scope of Work. Vendor shall provide the Services as set forth in the Scope of Work, attached hereto as Exhibit A and incorporated herein by reference. 3. Compensation. The Vendor shall provide the Services at no cost to the Town. Vendor will collect all fees from third-party inspectors in connection with activities relating to the Services. 4. [Omitted]. 5. Documents, Restrictions on Use, Confidential and Proprietary Information. 5.1 Documents. All documents, prepared and submitted by the Town pursuant to this Agreement shall be and remain the property of the Town. 5.2 Restrictions on Use. The Town agrees that it shall not copy, distribute, create derivative works of or modify the Services in any way. The Town agrees that: (a) it shall permit only its officers and employees (collectively, the "Authorized Users") to use the Services for the benefit of the Town; (b) it shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of the Services; (c) it shall not sell, resell, rent or lease the Services; (d) it shall not use the Services to 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 Services 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 the Services; (g) it shall not permit anyone other than the Authorized Users to view or use the Services and any screen shots of the Solution; and (h) it shall not disclose the features of the Services to anyone other than the Authorized Users. The Town is responsible for all actions taken by the Authorized Users in connection with the Services. 5.3 Proprietary Rights. All right, title and interest in and to the Services 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 Services or Derivative Works (the "Documentation"), and any reproductions works made thereof, remain with the Vendor. The Town shall not remove any product identification or notices of such proprietary rights from the Services. The Town acknowledges and agrees that, except for the limited use rights established hereunder, the Town has no right,title or interest in the Services,the Derivative Works, or the Documentation. 5.4 Reservation of Rights. Vendor reserves the right, in its sole discretion and with prior notice to The Town, to discontinue, add, adapt, or otherwise modify any design or specification of the Services and/or Vendor's policies, procedures, and requirements specified or related hereto. All rights not expressly granted to the Town are reserved to Vendor, including the right to provide all or any part of the Services to other parties. 5.5 Use of Logos. During the term of this Agreement, Vendor shall have the right to use the Town's logos for the purpose of providing the Services. 5.6 Confidential Information. Vendor and the Town acknowledge and agree that in providing the Services, Vendor and the Town, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information ("Confidential Information"). Confidential Information may include, but is not limited to, the Services, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. 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 party 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 the foregoing, the parties acknowledge that the Town shall be permitted to comply with any all federal and state laws concerning disclosure, which will not include screen shots. 5.7 Vendor Warranty. Vendor represents and warrants to the Town that Vendor has all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Services, and that Vendor is duly authorized to enter into this Agreement and provide the Services to the Town pursuant to this Agreement. 5.8 Disclaimer. All information entered into Vendor's database is produced by third party inspectors and their agents. THEREFORE, VENDOR SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ENTERED INTO VENDOR'S DATABASE BY EITHER THE TOWN OR THIRD PARTY INSPECTORS. EXCEPT AS SET FORTH HEREIN, VENDOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES 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. VENDOR'S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH HEREIN, AND THE TOWN'S SOLE REMEDY, SHALL BE THAT VENDOR A 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,AS SET FORTH IN SECTION 10. 5.9 Limitation on Damages. Except as otherwise provided in Section 5.7, in no event shall Vendor 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. The Town acknowledges and agrees that in no case shall Vendor's liability for any loss of data or data integrity exceed the replacement cost of the media on which the data was stored. 5.10 Risks Inherent to the Internet. The Town 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 Vendor, and (d) Vendor does not own, operate or manage the Internet. The Town also acknowledges that there are inherent risks associated with using the Services, 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. The Town assumes these risks knowingly and voluntarily and releases Vendor from all liability from all such risks. Not in limitation of the foregoing, the Town hereby assumes the risk, and Vendor shall have no responsibility or liability of any kind hereunder, for: (1) errors in the Services resulting from misuse, negligence, revision, modification, or improper use of all or any part of the Services by any entity other than Vendor or its authorized representatives; (2) any version of the Services other than the then-current unmodified version provided to the Town; (3) the Town's failure to timely or correctly install any updates to the Town's 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 Services that meet Vendor's recommended requirements; (6) nonconformities resulting from or problems to or caused by non-Vendor products or services; or(7) data or data input, output, accuracy, and suitability, which shall be deemed under the Town's exclusive control. 6. Vendor Personnel. Vendor shall provide adequate, experienced personnel, capable of and devoted to the successful performance of the Services under this Agreement. Vendor agrees to assign specific individuals to key positions. If deemed qualified, the Vendor is encouraged to hire Town residents to fill vacant positions at all levels. Vendor agrees that, upon commencement of the Services to be performed under this Agreement, key personnel shall not be removed or replaced without prior written notice to the Town. If key personnel are not available to perform the Services for a continuous period exceeding 30 calendar days, or are expected to devote substantially less effort to the Services than initially anticipated, Vendor shall immediately notify the Town of same and shall, subject to the concurrence of the Town, replace such personnel with personnel possessing substantially equal ability and qualifications. 7. {Omitted]. 8. Licenses; Materials. Vendor shall maintain in current status all federal, state and local licenses and permits required for the operation of the business conducted by the Vendor. The Town has no obligation to provide Vendor, its employees or subcontractors any business registrations or licenses required to perform the specific services set forth in this Agreement. The Town has no obligation to provide tools, equipment or material to Vendor. 9. Performance Warranty. Vendor warrants that the Services rendered will conform to the requirements of this Agreement and with the care and skill ordinarily used by members of the same profession practicing under similar circumstances at the same time and in the same locality. 10. Indemnification. To the fullest extent permitted by law, the Vendor shall indemnify, defend and hold harmless the Town and each council member, officer, employee or agent thereof(the Town and any such person being herein called an "Indemnified Party"), for, from and against any and all losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees, court costs and the costs of appellate proceedings) to which any such Indemnified Party may become subject, under any theory of liability whatsoever ("Claims"), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or omissions, breach of contract, in connection with the work or services of the Vendor, its officers, employees, agents, or any tier of subcontractor in the performance of this Agreement. The amount and type of insurance coverage requirements set forth below will in no way be construed as limiting the scope of the indemnity in this Section. II. Insurance. 11.1 General. A. Insurer Qualifications. Without limiting any obligations or liabilities of Vendor, Vendor shall purchase and maintain, at its own expense, hereinafter stipulated minimum insurance with insurance companies authorized to do business in the State of Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the Town. Failure to maintain insurance as specified herein may result in termination of this Agreement at the Town's option. B. No Representation of Coverage Adequacy. By requiring insurance herein, the Town does not represent that coverage and limits will be adequate to protect Vendor. No action or inaction by the Town shall relieve Vendor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. C. Additional Insured. All insurance coverage, except Workers' Compensation insurance and Professional Liability insurance, if applicable, shall name, to the fullest extent permitted by law for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees as Additional Insured as specified under the respective coverage sections of this Agreement. D. Coverage Term. All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement are satisfactorily performed, completed and formally accepted by the Town,unless specified otherwise in this Agreement. E. Primary Insurance. Vendor's insurance shall be primary insurance with respect to performance of this Agreement and in the protection of the Town as an Additional Insured. F. Claims Made. In the event any insurance policies required by this Agreement are written on a"claims made"basis, coverage shall extend, either by keeping coverage in force or purchasing an extended reporting option, for three years past completion and acceptance of the services. Such continuing coverage shall be evidenced by submission of annual Certificates of Insurance citing applicable coverage is in force and contains the provisions as required herein for the three-year period. G. Waiver. All policies, except for Professional Liability, including Workers' Compensation insurance, shall contain a waiver of rights of recovery (subrogation) against the Town, its agents, representatives, officials, officers and employees for any claims arising out of the work or services of Vendor. Vendor shall arrange to have such subrogation waivers incorporated into each policy via formal written endorsement thereto. H. Policy Deductibles and/or Self-Insured Retentions. The policies set forth in these requirements may provide coverage that contains deductibles or self- insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the Town. Vendor shall be solely responsible for any such deductible or self-insured retention amount. I. Use of Subcontractors. If any work under this Agreement is subcontracted in any way; Vendor shall execute written agreements with its subcontractors containing the indemnification provisions set forth in this Agreement and insurance requirements set forth herein protecting the Town and Vendor. Vendor shall be responsible for executing any agreements with its subcontractors and obtaining certificates of insurance verifying the insurance requirements. J. Evidence of Insurance. Prior to commencing any work or services under this Agreement, Vendor will provide the Town with suitable evidence of insurance in the form of certificates of insurance as required by this Agreement, issued by Vendor's insurance insurer(s) as evidence that policies are placed with acceptable insurers as specified herein and provide the required coverages, conditions and limits of coverage specified in this Agreement and that such coverage and provisions are in full force and effect. The Town shall reasonably rely upon the certificates of insurance as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Agreement. If any of the policies required by this Agreement expire during the life of this Agreement, it shall be Vendor's responsibility to forward renewal certificates to the Town 30 days prior to the expiration date. Certificates of insurance shall specifically include the following provisions: (1) The Town, its agents, representatives, officers, directors, officials and employees are Additional Insureds as follows: (a) Commercial General Liability — Under Insurance Services Office, Inc., ("ISO") Form CG 20 10 03 97 or equivalent. (b) Auto Liability — Under ISO Form CA 20 48 or equivalent. (c) Excess Liability — Follow Form to underlying insurance. (2) Vendor's insurance shall be primary insurance with respect to performance of this Agreement. (3) All policies, except for Professional Liability, including Workers' Compensation, waive rights of recovery (subrogation) against Town, its agents, representatives, officers, officials and employees for any claims arising out of work or services performed by Vendor under this Agreement. (4) ACORD certificate of insurance form 25 (2014/01) is preferred. If ACORD certificate of insurance form 25 (2001/08) is used, the phrases in the cancellation provision "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives" shall be deleted. Certificate forms other than ACORD form shall have similar restrictive language deleted. 11.2 Required Insurance Coverage. A. Commercial General Liability. Vendor shall maintain "occurrence" form Commercial General Liability insurance with an unimpaired limit of not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual Aggregate and a $2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products- completed operations, personal injury and advertising injury. Coverage under the policy will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including but not limited to, separation of insured's clause. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement,the Town, its agents, representatives, officers, officials and employees shall be cited as an Additional Insured under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10 03 97, or equivalent, which shall read "Who is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you." If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be "follow form" equal or broader in coverage scope than underlying insurance. B. Vehicle Liability. Vendor shall maintain Business Automobile Liability insurance with a limit of$1,000,000 each occurrence on Vendor's owned, hired and non-owned vehicles assigned to or used in the performance of the Vendor's work or services under this Agreement. Coverage will be at least as broad as ISO coverage code "1" "any auto" policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the Town, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be "follow form" equal or broader in coverage scope than underlying insurance. C. Professional Liability. If this Agreement is the subject of any professional services or work, or if the Vendor engages in any professional services or work in any way related to performing the work under this Agreement, the Vendor shall maintain Professional Liability insurance covering negligent errors and omissions arising out of the Services performed by the Vendor, or anyone employed by the Vendor, or anyone for whose negligent acts, mistakes, errors and omissions the Vendor is legally liable, with an unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual aggregate. D. Workers' Compensation Insurance. Vendor shall maintain Workers' Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Vendor's employees engaged in the performance of work or services under this Agreement and shall also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit. 11.3 Cancellation and Expiration Notice. Insurance required herein shall not expire, be canceled, or be materially changed without 30 days' prior written notice to the Town. 12. Termination: Cancellation. 12.1 For Town's Convenience. This Agreement is for the convenience of the Town and, as such, may be terminated without cause and within 90 days after receipt by Vendor of written notice by the Town. Upon termination for convenience, Vendor shall be paid for all undisputed services performed to the termination date. 12.2 For Cause. If either party fails to perform any obligation pursuant to this Agreement and such party fails to cure its nonperformance within 30 days after notice of nonperformance is given by the non-defaulting party, such party will be in default. In the event of such default, the non-defaulting party may terminate this Agreement immediately for cause and will have all remedies that are available to it at law or in equity including, without limitation, the remedy of specific performance. If the nature of the defaulting party's nonperformance is such that it cannot reasonably be cured within 30 days, then the defaulting party will have such additional periods of time as may be reasonably necessary under the circumstances, provided the defaulting party immediately (A) provides written notice to the non-defaulting party and (B) commences to cure its nonperformance and thereafter diligently continues to completion the cure of its nonperformance. In no event shall any such cure period exceed 90 days. In the event the Town takes any action that might seriously impair or compromise the provision of the Services, the Vendor shall have the right to terminate or suspend this Agreement upon delivery of written notice to the Town detailing the problem. If the Town cures the problem within 15 days of receiving written notice thereof, the Vendor shall restore the Services. 12.3 Due to Work Stoppage. This Agreement may be terminated by the Town upon 30 days' written notice to Vendor in the event that the Services are permanently abandoned. 12.4 Conflict of Interest. This Agreement is subject to the provisions of ARiz. REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its departments or agencies is, at any time while this Agreement or any extension of this Agreement is in effect, an employee of any other party to this Agreement in any capacity or a Vendor to any other party of this Agreement with respect to the subject matter of this Agreement. 12.5 Gratuities. The Town may, by written notice to the Vendor, cancel this Agreement if it is found by the Town that gratuities, in the form of economic opportunity, future employment, entertainment, gifts or otherwise, were offered or given by the Vendor or any agent or representative of the Vendor to any officer, agent or employee of the Town for the purpose of securing this Agreement. In the event this Agreement is canceled by the Town pursuant to this provision,the Town shall be entitled, in addition to any other rights and remedies, to recover and withhold from the Vendor an amount equal to 150%of the gratuity. 13. Miscellaneous. 13.1 Independent Contractor. It is clearly understood that each party will act in its individual capacity and not as an agent, employee, partner,joint venturer, or associate of the other. An employee or agent of one party shall not be deemed or construed to be the employee or agent of the other for any purpose whatsoever. The Vendor acknowledges and agrees that the Services provided under this Agreement are being provided as an independent contractor, not as an employee or agent of the Town. Vendor, its employees and subcontractors are not entitled to workers' compensation benefits from the Town. The Town does not have the authority to supervise or control the actual work of Vendor, its employees or subcontractors. The Vendor, and not the Town, shall determine the time of its performance of the services provided under this Agreement so long as Vendor meets the requirements of its agreed Scope of Work as set forth in Section 2 above and Exhibit B. Vendor is neither prohibited from entering into other contracts nor prohibited from practicing its profession elsewhere. Town and Vendor do not intend to nor will they combine business operations under this Agreement. 13.2 Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Arizona and suit pertaining to this Agreement may be brought only in courts in Maricopa County, Arizona. 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 THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 13.3 Laws and Regulations. Vendor shall keep fully informed and shall at all times during the performance of its duties under this Agreement ensure that it and any person for whom the Vendor is responsible abides by, and remains in compliance with, all rules, regulations, ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A)existing and future Town and County ordinances and regulations; (B) existing and future State and Federal laws; and (C) existing and future Occupational Safety and Health Administration standards. 13.4 Amendments. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the Town and the Vendor. 13.5 Provisions Required by Law. Each and every provision of law and any clause required by law to be in this Agreement will be read and enforced as though it were included herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either party, this Agreement will promptly be physically amended to make such insertion or correction. 13.6 Severability. The provisions of this Agreement are severable to the extent that any provision or application held to be invalid by a Court of competent jurisdiction shall not affect any other provision or application of this Agreement which may remain in effect without the invalid provision or application. 13.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement represents the entire agreement of the parties with respect to its subject matter, and all previous agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and superseded by this Agreement. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Agreement. This Agreement shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting this Agreement. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Agreement. 13.8 Assignment; Delegation. No right or interest in this Agreement shall be assigned or delegated by the Town without the written permission of the Vendor, signed by an authorized representative of the Vendor. Any purported assignment or delegation in violation of this section shall be null and void. The Agreement shall be binding upon and inure to the benefit of the parties thereto and their respective successors and representatives. 13.9 [Omitted]. 13.10 Rights and Remedies. No provision in this Agreement shall be construed, expressly or by implication, as waiver by the Town of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Agreement. The failure of the Town to insist upon the strict performance of any term or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the Town's acceptance of services, shall not release the Vendor from any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the Town to insist upon the strict performance of this Agreement. 13.11 Attorneys' Fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Agreement or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys' fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforced whether or not such action is prosecuted through judgment. 13.12 Liens. All materials or services shall be free of all liens and, if the Town requests, a formal release of all liens shall be delivered to the Town. 13.13 Offset. A. Offset for Damages. In addition to all other remedies at law or equity, the Town may offset from any money due to the Vendor any amounts Vendor owes to the Town for damages resulting from breach or deficiencies in performance or breach of any obligation under this Agreement. B. Offset for Delinquent Fees or Taxes. The Town may offset from any money due to the Vendor any amounts Vendor owes to the Town for delinquent fees, transaction privilege taxes and property taxes, including any interest or penalties. 13.14 Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if(A) delivered to the party at the address set forth below, (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below or (C) given to a recognized and reputable overnight delivery service, to the address set forth below: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills,Arizona 85268 Attn: Grady E. Miller, Town Manager With copy to: Pierce Coleman PLLC 4711 East Falcon Drive, Suite 111 Mesa,Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Vendor: Brycer, LLC 4355 Weaver Parkway, Suite 330 Warrenville, Illinois 60555 Attn: Nicholas Immekus or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received (A) when delivered to the party, (B) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage or (C) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 13.15 Confidentiality of Records. The Vendor shall establish and maintain procedures and controls that are acceptable to the Town for the purpose of ensuring that information contained in its records or obtained from the Town or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform Vendor's duties under this Agreement. Persons requesting such information should be referred to the Town. Vendor also agrees that any information pertaining to individual persons shall not be divulged other than to employees or officers of Vendor as needed for the performance of duties under this Agreement. 13.16 Records and Audit Rights. To ensure that the Vendor and its subcontractors are complying with the warranty under subsection 13.17 below, Vendor's and its subcontractor's books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Agreement, including the papers of any Vendor and its subcontractors' employees who perform any work or services pursuant to this Agreement (all of the foregoing hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on Vendor's and its subcontractors' actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the Vendor's and its subcontractors' compliance with the Arizona employer sanctions laws referenced in subsection 13.17 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Vendor and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if located at its subcontractors' facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of the termination of this Agreement. Vendor and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this subsection. The Town shall give Vendor or its subcontractors reasonable advance notice of intended audits. Vendor shall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 13.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the Vendor and its subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E-verify requirements under ARIZ. REV. STAT. § 23-214(A). Vendor's or its subcontractors' failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 13.18 Israel. Vendor certifies that it is not currently engaged in, and agrees for the duration of this Agreement that it will not engage in a "boycott," as that term is defined in ARIZ.REV. STAT. § 35-393, of Israel. 13.19 Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among the terms of this Agreement, the Scope of Work, any Town-approved Purchase Order, the Fee Proposal, the RFP and the Vendor's Proposal, the documents shall govern in the order listed herein. [SIGNATURES ON FOLLOWING PAGES] IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first set forth above. "Town" TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Grady E. iller, Town Manager ATTEST: E ' abeth A. ke, Town Cler APPRO AS TO FORM: Aaron D. Arnson, Town Attorney (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On Sp f Q(2018, before me personally appeared Grady E. Miller, the Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation,whose identity was proven to me on the basis of satisfactory evidence to be the person who he claims to be, and acknowledged that he signed the above document, on behalf of the Town of Fountain Hills. oi""4,7 RHONDA M. BRENNEMAN Notary Public-State of Arizona MARICOPA COUNTY NotaryPublic * ,.�. * My Commission Expires June 30,2019 (Affix notary seal here) [SIGNATURES CONTINUE ON FOLLOWING PAGE] "Vendor" Brycer, LLC a(n) Delaware limited liability company By: #221'`A T?• %Z' Name: /1/1 ,4hc 73. i?. e Title: P.,r-J(190 . (A CKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On DC:C6 U$FQ /3 , 2018, before me personally appeared 4,4Qi :w Ric , the PRD ,r of BRYCER, LLC a(n) Delaware limited liability company, whose identity was proven to me on the basis of satisfactory evidence to be the person who he/she claims to be, and acknowledged that he/she signed the above document on behalf of the limited liability company. t*Itv £ o OFFICIAL SEAL Notary Public LEE ? 011-4ARA thry c • :,ae of Illinois aryseaL ieir 7/02/2022 4821-8506-7649 v 2 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND BRYCER, LLC [Scope of Work] See following pages. Brycer Responsibilities During the term of this Agreement, Brycer shall be responsible for the following in connection with the Town's use of the Services: • Availability. Brycer shall make the Services available to the Town as established in this Scope of Work. The maintenance schedule and minimum service levels for the Services are set forth below. • Service Level. Brycer shall provide commercially reasonable levels of customer service with respect to the Services to all third parties who transact business with the Town and access the Services. • Backup. Brycer shall backup the database used in connection with the Services to a separate server located within the same web hosting firm which the Services is being hosted on a real time basis. Upon request by the Town or made prior to or within 60 days after the effective date of termination of the Term, Brycer will make available to the Town a complete and secure (i.e. encrypted and appropriately authenticated) download file of Client data in XML format including all schema and attachments in their native format. Brycer shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client data. Brycer shall not(a)modify Client data or(b) disclose Client data except as required by law. • Retention of Information. Brycer will maintain all information entered into the database by third party inspectors for at least five (5) years from the time such information is entered into the database. • Notices. Brycer will be responsible for generating and delivering the following notices to third parties in connection with the Services: (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 mcre deficiencies. • Call Center Phone calls by Brycer on behalf of the Town to the property for EACH life-safety system overdue for inspection/testing and open deficiencies based on dates automatically tracked within the TCE database. Brycer is not an agent of the Town and all scripts for the calls will be approved by the Town. • Updates and Enhancements. In the event Brycer releases any updates, corrections, or enhancements to the Services during the Term, Brycer shall promptly provide such updates or corrections to Client free of any charge or fee. Client Responsibilities During the term of this Agreement, the Town shall be responsible for the following in connection with the Town's use of the Services: • Operating System. The Town shall be solely responsible for providing a proper operating environment, including computer hardware or other equipment and software, for any portion of the Services installed on the Town's equipment and for the installation of network connections to the Internet. In addition to any other Access Software requirements, the Town 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. The Town shall allow Brycer at the Town's facilities to train all applicable personnel of the Town on the use of the Services. • Information. The Town shall promptly provide Brycer with all appropriate information necessary for Brycer to create the database for the Services, including without limitation: (a) all commercial building addresses within the Town for Brycer's initial upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion. • Enforcement. The Town shall take all actions necessary to require in writing (e.g. resolution, ordinance, fire policy, code amendment) the use of the Services by third party inspection companies. • Reports. Client will require all compliant and deficient test results to be submitted. Maintenance Schedule and Minimum Service Levels 1. Uptime and Maintenance. The Services shall be available 24 hours per day during the term of this Agreement. The Services shall be fully functional, timely and accessible by the Town at least 99.5% of the time or better and Brycer shall use reasonable efforts to provide the Town with advance notice of any unscheduled downtime. 2. Response Time. Brycer shall respond to telephone calls from the Town within two hours of the call and/or message and all emails from the Town 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.