roger p. meyers (p73255) received for filing...
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
MUNETRIX, LLC, Plaintiff, v. SOCRATA, INC., Defendant.
Case No. 2017- -CB
Hon.
Roger P. Meyers (P73255) Michael K. Steinberger (P76702) BUSH SEYFERTH & PAIGE, PLLC 3001 West Big Beaver Road, Suite 600 Troy, MI 48084 (248) 822-7800 [email protected] [email protected] Attorneys for Plaintiff
COMPLAINT AND DEMAND FOR JURY TRIAL
There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint.
/s/ Roger P. Meyers
Roger P. Meyers (P73255)
This case meets the statutory requirements to be assigned to
the Business Court.
/s/ Roger P. Meyers Roger P. Meyers (P73255)
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This case has been designated as an eFiling case. To review a copy of the Notice of Mandatory eFiling visit www.oakgov.com/clerkrod/Pages/efiling.
2017-159844-CBJUDGE ALEXANDER
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Plaintiff Munetrix, LLC (“Munetrix”), complains as follows against Defendant Socrata,
Inc. (“Socrata”):
PARTIES, JURISDICTION AND VENUE
1. Munetrix is a Michigan limited liability company. Its principal place of business is
located in Auburn Hills, Michigan.
2. Socrata is a Delaware corporation. Its principal place of business is located in
Seattle, Washington.
3. The amount in controversy exceeds $25,000, exclusive of interest and costs.
4. This Court has personal jurisdiction over this matter under MCL 600.715 because
this action arises out of a contract Socrata entered into with Munetrix for Munetrix and Socrata
jointly to perform services in Michigan, Socrata engaged in tortious conduct against Munetrix in
Michigan, and Socrata otherwise conducted business in Michigan both with Munetrix and with
the State of Michigan.
5. Venue is proper in this Court under MCL 600.1621 because Socrata conducts
business in Oakland County and Munetrix has a place of business in Oakland County.
6. Assignment to the business court is proper because this case involves a business
dispute as defined in MCL 600.8031.
FACTUAL BACKGROUND
7. Munetrix is a Michigan-based software company that provides a range of services
to municipalities and school districts, including business analytics, performance measures, and
transparency platforms.
8. Socrata is a software company that provides similar services to government clients.
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9. In the summer and fall 2014, Bob Kittle, CEO of Munetrix, exchanged messages
with Kevin Merritt, CEO of Socrata, regarding their complementary services and the possibility
of partnering when the right opportunities arose.
10. In June 2015, Munetrix identified the State of Michigan - Financial Accountability
Reporting System Request for Proposal (the “Michigan RFP”), which had a response deadline of
July 15, 2015, as such an opportunity. Kittle reached out to Merritt about the possibility of
partnering on a response to the Michigan RFP.
11. Merritt agreed to join forces and assigned Socrata’s Director for the East Region,
Tyler Masterson, to work with Munetrix on preparing a joint response to the Michigan RFP.
12. Almost immediately after Munetrix and Socrata began working together on the
Michigan RFP, Socrata’s Director for the West Region, Andrew Crow, contacted Kittle about
having Socrata partner with Munetrix on another joint proposal—this one a response to the
Colorado Department of Education’s Request for Proposal related to the Online School Level
Financial Reporting Website (the “Colorado RFP”). Munetrix had already started working on an
individual response to the Colorado RFP before receiving Socrata’s inquiry, and Munetrix halted
those efforts once the parties agreed to submit a joint proposal.
13. The parties’ relationships on both the Michigan RFP and Colorado RFP were set
forth early on in various emails between the parties. Munetrix and Socrata agreed that Socrata
would be the lead partner in the response to the Colorado RFP because of Socrata’s existing
relationships in Colorado, and Munetrix would be the lead partner in the response to the
Michigan RFP because of Munetrix’s existing relationships in Michigan.
14. Eventually, Socrata’s Territory Manager, Athlan Lathan, emailed Kittle a
“Teaming Agreement” for the Colorado RFP, and said “I’m excited to work with you in
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Colorado.” On July 9, 2015, Kittle and Socrata’s CFO, Dan Wassel, executed the “Teaming
Agreement” for the Colorado RFP (the “Colorado Teaming Agreement”).
15. The Colorado Teaming Agreement contained an exclusivity provision stating that
the parties to the Teaming Agreement were prohibited from submitting competing bids for the
projects that the parties were jointly bidding for:
Limited Exclusivity: During the term of this agreement, each party will not Participate in any manner in other teaming efforts that are competitive to the project contemplated under this agreement and that they will not compete independently (including independent submissions of a proposal to the Client or any other party for work specified in the agreement). ‘Participate’ includes, but is not limited to, the interchange of technical and cost or pricing data with competitors.
16. Munetrix and Socrata likewise contemplated the execution of a Teaming
Agreement for the Michigan RFP (the “Michigan Teaming Agreement”), a draft of which Kittle
prepared, that mirrored the Colorado Teaming Agreement.
17. Socrata did not sign a copy of the Michigan Teaming Agreement, but during the
run-up to the July 15, 2015 submission date, Masterson repeatedly orally affirmed to Kittle
Socrata’s intention to work exclusively with, and not compete against, Munetrix on the Michigan
RFP. Munetrix relied on those affirmations in preparing to submit a joint response to the
Michigan RFP. During that process, Socrata was exposed to Munetrix’s sensitive commercial
information and platform capabilities.
18. Indeed, throughout the preparation of the responses to both the Michigan RFP and
the Colorado RFP, Munetrix and Socrata were in daily email, telephone, and text messaging
contact. Both companies consistently conducted themselves as though both Teaming
Agreements were in full force and effect. Notably, at no point in that process did Socrata
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disclose that it was secretly undercutting Munetrix with a separate, competing response to the
Michigan RFP.
19. On July 13, 2015, the parties submitted their joint bid in response to the Colorado
RFP.
20. On July 15, 2015, the parties submitted their joint bid in response to the Michigan
RFP.
21. After submitting those bids, Munetrix and Socrata continued to partner at Socrata’s
request, exploring an opportunity to submit a joint bid to a Request for Proposal issued by the
Michigan Department of Education. At no point during that process did Socrata disclose that it
had secretly undercut Munetrix by submitting a separate, competing response to the Michigan
RFP.
22. On August 9, 2015, Munetrix and Socrata learned that their joint bid in response to
the Colorado RFP had not been selected.
23. As Munetrix and Socrata waited for the State of Michigan to make a decision on
the Michigan RFP, Socrata continued to conceal its deception from Munetrix. For example, on
October 8, 2015, Masterson sent Kittle a text message about the response to the Michigan RFP
saying “I want to win the deal we partnered with you[.]” (Exhibit 1.)
24. In addition, throughout the summer and fall of 2015, Socrata continued to pump
Munetrix for intelligence, relying on Munetrix’s local relationships. Munetrix provided this
information—for example, the effect of local politics on the speed of the State of Michigan’s
selection process—in the context of and in reliance on the partnership.
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25. On January 15, 2016, Kittle first realized that Munetrix did not have in its files a
copy of the Michigan Teaming Agreement signed by Socrata. Kittle emailed Masterson to
follow-up:
I was going back to see what the Teaming Agreement called for between Socrata and ourselves, but could only find the non-executed version I had sent to you as a draft, and no record of an executed version coming back to me. I am hoping you can see if you can find one on your end, as I cannot find anything in our records (which is very disturbing and unlike us). . . .
26. Masterson did not dispute that he had received the draft Michigan Teaming
Agreement. Instead, he responded, “Let me know what I need to do with the teaming
agreements.” Kittle re-sent the Michigan Teaming Agreement to Masterson. (Exhibit 2.)
27. Around the same time, Munetrix was notified that the Munetrix/Socrata joint
response had been selected as one of three finalists for the Michigan RFP. The State of
Michigan asked Munetrix and Socrata to make an in-person presentation of their proposal. The
State did not identify the other two finalists.
28. Kittle promptly arranged a conference call with Socrata personnel to share the
good news, and to discuss preparations for the in-person presentation. On that call, Masterson
revealed for the first time, “in the interest of full disclosure,” that Socrata had secretly and
wrongfully submitted a competing independent response to the Michigan RFP, and that the
Socrata independent response to the Michigan RFP had also been selected as one of the three
finalists for the Michigan RFP.
29. Bizarrely, even after Socrata revealed that it had double-crossed Munetrix and
violated the parties’ agreement, Socrata continued to acknowledge its partnership with Munetrix.
For example, Masterson sent a text message to Kittle saying, “Do you no longer want to
partner?” (Exhibit 3.)
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30. In the wake of Socrata’s betrayal, Munetrix provided the requested in-person
presentation on its own. But Socrata’s shift from partner to competitor was obvious to the
reviewers and crippled the presentation. Moreover, Socrata—using the proprietary technical and
commercial knowledge it had gained working with Munetrix—had drastically underbid the
project.
31. In May 2016, the State of Michigan awarded the contract for the Financial
Accountability Reporting System to Socrata’s wrongfully submitted independent bid.
32. Munetrix later learned from the State of Michigan that the joint response from
Munetrix and Socrata had been the runner up to Socrata’s wrongfully submitted independent
response, and would have been selected if Socrata had not made its secret separate submission.
33. Of course, Socrata was incapable of actually performing the Michigan contract at
the prices it bid, so Socrata has since submitted change request upon change request to bring the
value of the contract up to the price level of the joint bid.
34. That Socrata had deceived Munetrix and stolen the Michigan RFP opportunity was
bad enough. But, adding insult to injury, Munetrix has since learned that Socrata’s fraud was
premeditated.
35. During an employment interview with another company in the industry, OpenGov,
Masterson openly boasted to OpenGov’s CEO Zachary Bookman about how he and Socrata had
“screwed” Munetrix out of the Michigan contract. Masterson also told Bookman that Socrata
never had any intention of honoring the Michigan Teaming Agreement, and always intended to
submit a competing bid, despite its representations to the contrary.
COUNT I – BREACH OF CONTRACT
36. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
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37. The Michigan Teaming Agreement is a valid, enforceable contract.
38. Under the Michigan Teaming Agreement, Munetrix and Socrata agreed they would
submit a joint response to the Michigan RFP and that neither would submit an independent
response to the Michigan RFP.
39. Munetrix performed in compliance with the Michigan Teaming Agreement and, in
reliance on Socrata’s agreement, submitted a joint bid with Socrata in response to the Michigan
RFP.
40. Socrata breached the Michigan Teaming Agreement by submitting an independent
response to the Michigan RFP.
41. As a direct and proximate result of Socrata’s breach, Munetrix has been damaged
in an amount to be proven at trial.
COUNT II – BREACH OF PARTNERSHIP AGREEMENT
42. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 41, above.
43. Munetrix and Socrata formed an express partnership with respect to a venture to
bid for, and fulfill if selected, the Michigan RFP, and to share the profits of doing so.
44. In connection with their partnership, Munetrix and Socrata agreed that they would
submit only a joint response to the Michigan RFP, and that neither of them would submit an
independent bid.
45. In furtherance of their partnership, Munetrix and Socrata engaged in extensive
preparation to assemble and submit a joint response to the Michigan RFP.
46. Socrata breached the parties’ partnership agreement by submitting an independent
response to the Michigan RFP.
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47. As a direct and proximate result of Socrata’s breach, Munetrix has been damaged
in an amount to be proven at trial.
COUNT III – BREACH OF FIDUCIARY DUTY
48. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 47, above.
49. As Munetrix’s partner with respect to the Michigan RFP, Socrata owed Munetrix a
fiduciary duty. In addition and in the alternative, Socrata assumed a fiduciary obligation to
Munetrix by inducing Munetrix to participate in a joint response to the Michigan RFP, by
promising that neither would submit an independent bid, and by soliciting extensive proprietary
information from Munetrix in furtherance of that joint bid.
50. Socrata violated its fiduciary duty of loyalty to Munetrix by submitting a secret,
undercutting response to the Michigan RFP and thereby usurping for itself and competing
against Munetrix for a business opportunity that belonged to both of them jointly.
51. Socrata further violated its fiduciary duty of loyalty to Munetrix by soliciting,
under the guise of the joint opportunity, confidential and proprietary information belonging to
Munetrix for the purpose of competing against Munetrix for the Michigan RFP and elsewhere.
52. Socrata also violated its fiduciary duty of candor to Munetrix by deceiving
Munetrix as to whether Socrata was going to, and had, submitted a competing bid, thereby
concealing Socrata’s wrongdoing and robbing Munetrix of the opportunity to protect itself by
timely submitting its own independent bid, terminating the ongoing sharing of information, and
ceasing efforts to further the partnership that Socrata had violated.
53. As a direct and proximate result of Socrata’s breaches of fiduciary duty, Munetrix
has been damaged in an amount to be proven at trial.
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COUNT IV – FRAUD
54. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 53, above.
55. Socrata falsely represented to Munetrix on numerous occasions that Munetrix and
Socrata had a “partnership,” that Socrata was operating according to the Michigan Teaming
Agreement, and that Socrata intended to submit only a joint response to the Michigan RFP.
56. Socrata’s misrepresentations were knowing and intentional. Socrata always
intended to submit an independent bid in response to the Michigan RFP. Socrata also purposely
used its misrepresentations and omissions to induce Munetrix to share confidential and
proprietary information with Socrata that Munetrix would not otherwise have shared, and that
Socrata used to ensure that its competing bid undercut the joint bid.
57. In reasonable reliance on Socrata’s misrepresentations, Munetrix submitted only
the joint response to the Michigan RFP and did not prepare or submit an independent response.
58. As a direct and proximate result of Socrata’s fraud, Munetrix has been damaged in
an amount to be proven at trial. In addition, due to Socrata’s actual and intentional fraud,
Munetrix is entitled to exemplary damages.
COUNT V – SILENT FRAUD
59. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 58, above.
60. Socrata concealed from and deliberately failed to disclose to Munetrix that Socrata
was secretly working on a competing independent response to the Michigan RFP, and later that it
had actually submitted a competing independent response to the Michigan RFP, under
circumstances giving rise to an obligation to disclose that information.
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61. Socrata’s concealment was knowing and intentional. Socrata expressly sought to
prevent Munetrix from learning of the deception until it was too late for Munetrix to respond.
62. In reasonable reliance on Socrata’s omissions, Munetrix submitted only the joint
response to the Michigan RFP and did not prepare or submit an independent response, and
continued to share information that it would only have shared in the context of a partnership.
63. As a direct and proximate result of Socrata’s silent fraud, Munetrix has been
damaged in an amount to be proven at trial. In addition, due to Socrata’s actual and intentional
fraud, Munetrix is entitled to exemplary damages.
COUNT VI – FRAUDULENT INDUCEMENT
64. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 63, above.
65. Socrata induced Munetrix to enter the Michigan Teaming Agreement and into a
partnership by falsely representing that Socrata and Munetrix would jointly respond to the
Michigan RFP, and that Socrata would not submit its own independent response to the Michigan
RFP.
66. When it induced Munetrix to enter the Michigan Teaming Agreement and into a
partnership, Socrata knew that its representations were false and that it had no intention of
honoring the Michigan Teaming Agreement. Alternatively, the above representations were made
with reckless disregard for the truth.
67. Socrata’s purposes in inducing Munetrix to enter the Michigan Teaming
Agreement and into a partnership were to keep Munetrix from preparing its own independent
response to the Michigan RFP, thereby eliminating competition, and also to induce Munetrix to
share confidential and proprietary information with Socrata that Munetrix would not otherwise
have shared, and that Socrata used to ensure that its competing bid undercut the joint bid. Rec
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68. Munetrix reasonably relied on Socrata’s misrepresentations when it agreed to enter
into the Michigan Teaming Agreement and a partnership with Socrata. Had Munetrix known the
truth, it would not have entered that agreement or partnership.
69. As a direct and proximate result of Socrata’s fraudulent inducement, Munetrix has
been damaged in an amount to be proven at trial. In addition, due to Socrata’s actual and
intentional fraud, Munetrix is entitled to exemplary damages.
COUNT VII – FRAUDULENT CONCEALMENT
70. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 69, above.
71. Socrata concealed from and deliberately failed to disclose to Munetrix that Socrata
had wrongfully submitted an independent bid in response to the Michigan RFP, giving rise to
various causes of action, under circumstances creating an obligation to disclose that information.
72. Socrata’s concealment was a knowing and intentional attempt to prevent or delay
Munetrix from learning that Socrata’s conduct had given rise to various causes of action.
73. As a direct and proximate result of Socrata’s fraudulent concealment, Munetrix has
been damaged in an amount to be proven at trial. In addition, due to Socrata’s actual and
intentional fraud, Munetrix is entitled to exemplary damages.
COUNT VIII – PROMISSORY ESTOPPEL
74. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 73, above.
75. Socrata made clear and definite promises to Munetrix that Socrata would submit
only a joint response with Munetrix to the Michigan RFP, that Socrata would not submit its own
independent response to the Michigan RFP, and that the two companies would share in the
profits if the contract was awarded, with Munetrix being the lead partner. Rec
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76. Socrata intended that Munetrix would act in reliance on Socrata’s promises, and
Munetrix did in fact act in reasonable reliance upon Socrata’s promises, by submitting only a
joint response to the Michigan RFP and not preparing and submitting an independent response,
and by sharing for the purpose of the joint response confidential and proprietary information with
Socrata that Munetrix would not otherwise have shared, which Socrata then used to ensure that
its competing bid undercut the joint bid.
77. Injustice will result if Socrata’s promises are not enforced.
COUNT IX – UNJUST ENRICHMENT
78. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 77, above.
79. Through the conduct detailed above, Socrata received the benefits of not having to
compete with Michigan-based Munetrix for the State of Michigan contract, by getting substantial
insight into the Michigan contracting process, and by obtaining confidential and proprietary
information from Munetrix that Socrata then used to ensure that its competing bid undercut the
joint bid.
80. Socrata has been unjustly enriched by being awarded the State of Michigan
contract to Munetrix’s exclusion. Socrata has failed to compensate Munetrix for the benefits it
received through its misconduct.
81. An inequity will result if Socrata is able to wrongfully retain the benefit that it
obtained by misleading and defrauding Munetrix.
COUNT X – TORTIOUS INTERFERENCE WITH A BUSINESS EXPECTANCY
82. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 81, above.
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83. Munetrix had a reasonable business expectancy that the joint response to the
Michigan RFP would be selected by the State of Michigan. Indeed, but for Socrata’s secret,
competing submission, the joint response would have been selected.
84. Socrata purposefully and tortiously engaged in a concerted effort to keep Munetrix
from preparing its own independent response to the Michigan RFP and also to induce Munetrix
to share confidential and proprietary information with Socrata that Munetrix would not otherwise
have shared, and that Socrata used to ensure that its competing bid undercut the joint bid.
85. Socrata’s conduct is inherently wrongful and cannot be justified under any
commercially reasonable basis.
86. Through its tortious interference, Socrata successfully interfered with Munetrix's
ability to compete for the State of Michigan contract, which was instead awarded to Socrata
alone.
87. As a direct and proximate result of Socrata’s tortious interference with Munetrix’s
business expectancies, Munetrix has been damaged in an amount to be proven at trial.
COUNT XI - ACCOUNTING
88. Munetrix incorporates by reference the allegations set forth in Paragraphs 1
through 87, above.
89. At common law, Socrata has a duty to account to the partnership for any benefit
obtained and to disclose all material affairs of the partnership, and Munetrix has a right to
demand an accounting.
90. Under MCL 449.21, Socrata has a duty to account to the partnership for any
benefit obtained.
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91. Under MCL 449.22, Munetrix has a right to demand a formal account of the
partnership’s affairs.
92. Munetrix has been damaged by Socrata’s deliberate and fraudulent violation of the
partnership and the Michigan Teaming Agreement, and the exact amount of its damages has
been concealed from Munetrix.
93. Munetrix cannot reasonably be expected to ascertain and determine the extent of
his damages without an accounting of Socrata’s financial records.
WHEREFORE, Munetrix respectfully requests that this Court:
A. Enter judgment in Munetrix’s favor and against Socrata in an amount to be
determined at trial, together with interest, statutory interest, costs and attorney
fees;
B. Award Munetrix exemplary damages for Socrata’s actual fraud; and
C. Grant such other relief as this Court deems just and proper.
Respectfully submitted,
Dated: July 19, 2017
BUSH SEYFERTH & PAIGE, PLLC Attorneys for Plaintiff
By: /s/ Roger P. Meyers (P73255) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 3001 West Big Beaver Road, Suite 600 Troy, MI 48084 (248) 822-7800 [email protected] [email protected]
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JURY DEMAND
Plaintiff Munetrix, LLC, hereby demands a trial by jury of all issues so triable in this
case.
Dated: July 19, 2017
BUSH SEYFERTH & PAIGE, PLLC Attorneys for Plaintiff
By: /s/ Roger P. Meyers (P73255) Roger P. Meyers (P73255) Michael K. Steinberger (P76702) 3001 West Big Beaver Road, Suite 600 Troy, MI 48084 (248) 822-7800 [email protected] [email protected]
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Exhibit 1
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Exhibit 2
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Bob Kittle <[email protected]>
Re: Michigan RFP1 message
Bob Kittle <[email protected]> Tue, Jan 19, 2016 at 11:02 AMTo: Tyler Masterson <[email protected]>Cc: Buzz Brown <[email protected]>
Here it is.....it is yours basically in reverse.
On Tue, Jan 19, 2016 at 10:53 AM, Tyler Masterson <[email protected]> wrote: Let me know what I need to do with teaming agreements. Tyler Tyler Masterson | 410.960.1153 | Director at Socrata On Fri, Jan 15, 2016 at 5:33 PM, Bob Kittle <[email protected]> wrote: Tyler The SOM has officially surfaced on the bid we collaborated on back in July 2015. However good as that may sound, they have basically torn it in half, separating the Schools from the Munis eventhough they were quoted individually and together. There have been some eyebrows raised in the legislative branch, since by law they were supposed to bid onecommon solution for all local governments in the state. Some of this will play out early next week, and we have todigest the information they sent us today. In the meantime, a couple of things. One, I was going back to see what the Teaming Agreement called for between Socrata and ourselves, but could onlyfind the nonexecuted version I had sent to you as a draft, and no record of an executed version coming back to me. Iam hoping you can see if you can find one on your end, as I cannot find anything in our records (which is verydisturbing and unlike us). Secondly, they are calling for an Oral Presentation on January 28, 2016 in the Department of Treasury offices inLansing, MI at 8:30am. I would like to see if you could circle or check that day for availability, even though,depending on what we are able to discern in the next few days, your attendance may or not be required. Come Monday or Tuesday latest, we should get on the phone to see what collaborative effort is required, and planfrom there. A similar demo to what we used in CO may be the best bet, but quite frankly, I'm not sure they even knowwhat they want anymore. We are prying to try that from them, and glean more intel on their ultimate thinking. This email is intended to be a heads up, but I would like to close out the issue with the Teaming Agreement first. I amembarrassed about that because we have the corporate NDAs and the CO Teaming Agreement tucked away in theirneat little place; but nothing on MI. Obviously an oversight, or shitty filing. I hope the latter. Anyhow, thanks in advance and I suspect we'll talk soon.
Bob Kile | President Cell: 248.797.1337 | Office: 248.499.8355 Fax: 248.683.5826 | munetrix.com
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This email may contain confidential or privileged information. If you are not the intended recipient, please delete itand notify the sender of the error.
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Munetrix Socrata Teaming Agreement MICH_EXECUTION VERSION.docx66K
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Socrata Confidential – Ver 070914
TEAMING AGREEMENT
This agreement is made as of July 1, 2015 between Munetrix, LLC, a Michigan Limited Liability company (Munetrix) and
Socrata, Inc., a Delaware corporation, (Teammate).
1. Definition of the Client and the Project.
This agreement documents the parties’ mutual understandings as to how they will jointly pursue the Project.
Client Name: Colorado Department of Education
Project Description:. . Deliver a joint Munetrix-Socrata statewide solution proposal to meet the intent and
requirements of the State of Michigan, Department of Treasury’s Financial Accountability Reporting System RFP due
July 15, 2015; ____________________________
2. Limited Exclusivity.
Prime: Munetrix Subcontractor: Teammate
Limited Exclusivity: During the term of this agreement, each party will not Participate in any manner in other teaming efforts that are competitive to the project contemplated under this agreement and that they will not compete independently (including independent submissions of a proposal to the Client or any other party for work specified in the agreement). ‘Participate’ includes, but is not limited to, the interchange of technical and cost or pricing data with competitors.
Exceptions: This agreement applies only to the Project and to no other effort undertaken by Munetrix or Teammate,
whether jointly or separately. Notwithstanding anything contained in this agreement to the contrary, this agreement (i) does not prohibit the parties from pursuing any other business development or contractual efforts not related to this Project; (ii) does not restrict either party from quoting, offering to sell, or selling to others any items or services that it may regularly offer; and (ii) is not intended to affect the rights of the Client to negotiate directly with either party on any basis the Client may desire for work not related to this Project.
3. General Obligations.
Teammate:
o Contacts with Client. All contacts with the Client relating to the Project, whether such contacts are in person, by writing or by telephone, must be made only by Munetrix or, if by Teammate, with Munetrix prior coordination, unless initiated by the Client. Teammate must promptly notify Munetrix of any Client-initiated contacts.
Munetrix: Munetrix has overall responsibility for preparing the proposal, integrating the data and material
provided by Teammate, submitting to the Client in a timely manner, and negotiating the Prime Contract (defined below). Munetrix shall disclose to Client its relationship with Teammate in connection with its bid proposal to the extent required by law.
Both Parties:
o Joint Proposals. During the term of this agreement, Munetrix and Teammate agree to work together in good
faith to prepare and deliver a proposal to Client for the Project and obtain a prime contract for the Project between Munetrix and Client (Prime Contract) and a subcontract between Munetrix and Teammate for the Project (Subcontract). The work to be performed by Teammate under this agreement is described in Exhibit A. All other work to be performed under the Prime Contract will be performed by Munetrix, unless otherwise agreed to by the parties. Munetrix will promptly advise Teammate of changes in the Project that will likely affect Teammate and obtain Teammate’s consent for any such changes.
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o Final Subcontract. If Munetrix is awarded a Prime Contract for the Project, Munetrix and Teammate agree to negotiate in good faith and proceed in a timely manner to execute a mutually acceptable Subcontract for the work to be performed by Teammate under the Project on terms mutually agreeable to the parties. Neither Munetrix nor Teammate is under any obligation to come to an agreement with respect to such Subcontract.
o No Publicity. Neither party may issue a news release, public announcement, advertisement, and statement in
an annual report, or any other form of publicity concerning efforts in connection with this agreement without obtaining prior approval from the other party. In the event such approval is granted, any resulting publicity must give due consideration to the role and contributions of the other party.
o Confidentiality. This agreement is subject to the terms of the [Non-Disclosure Agreement] between the parties dated June 30, 2015, which is hereby incorporated into this agreement for all purposes.
o Costs. Each party will bear the respective expenses, costs, risks, and liabilities incurred by it as a result of its
activities and obligations under this agreement. Neither party shall have any right to any reimbursement, payment, or compensation of any kind from the other party related to this agreement.
4. Termination. This agreement remains in effect until it terminates upon the earlier of:
1 year from the Effective Date; Execution of a Subcontract with respect to the Project; Written notice from the Client that the Project has been canceled or that the Project has been changed to
eliminate substantially all of the work contemplated for Teammate; Non-award of a contract for the Project to Munetrix; The written refusal of the Client to approve Teammate as a subcontractor to Munetrix under the Project; The failure to reach a definitive written Subcontract after being awarded the Project from the Client A decision by Munetrix not to bid on the Project, for any reason; provided, that if Munetrix makes such decision it
will immediately notify Teammate in writing so that Teammate may independent pursue the Project; Insolvency of a party or the commencement, voluntary or involuntary, of proceedings in reorganization or
bankruptcy for one of the parties. 5. Limitation of Liability. Neither party is liable to the other for any consequential, indirect or special damages arising
out of or related to this agreement, except with respect to violation of the other party’s confidential information or intellectual property rights.
6. Miscellaneous.
Procurement Integrity. Neither party nor their respective officers, employees, representatives, consultants, and team members may:
o Make, directly or indirectly, any offer or promise of future employment or business opportunity to or engage
directly or indirectly in any discussion of future employment or business opportunity with any procurement official of the Client; or
o Offer, give, or promise to offer or give, directly or indirectly, any money, gratuity, or other thing of value to any procurement official of the Client; or
o Solicit or obtain, directly or indirectly, from any officer or employee of the Client, prior to the award of a contract, modification, or extension to a contract, any proprietary or source selection information regarding the procurement.
In the event a party of any of its officers, employees, agents or consultants is authorized to receive proprietary or source selection information, the party agrees that it shall not disclose such information to anyone other than a person authorized by an appropriate representative of such agency to receive the information. Each party further agrees to immediately notify the other party if it becomes aware of any information concerning an actual or apparent violation of these terms.
Conflict of Interest. It is understood by both parties that neither party is knowingly adversely affected by any
conflict of interest related to this procurement as of the date of this agreement and the parties agree that neither party may knowingly undertake a future action which will place that party in an conflict of interest related to this procurement. The parties agree that should either party determine that a conflict of interest exists or may exist as a result of its further pursuit of the procurement effort contemplated by this agreement, this agreement may be terminated at the request of either party. Should a conflict of interest be determined by either party, the party making the determination will provide to the other party the determination in writing prior to the termination of this agreement.
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Ownership and License. Each party retains all rights in intellectual property owned or developed by or for it
before, independent of, or related to this agreement, and no transfer of intellectual property rights is granted by this agreement, even upon award of the contract or subcontract, unless specific licensing agreement language and remuneration language is agreed upon..
No Assignment. Neither party may assign or delegate a duty under this agreement without first obtaining the written consent of the other party.
Independent Contractors. This agreement does not constitute, create, or give effect to a partnership, joint
venture, or any other type of formal business entity. Socrata and Teammate are independent contractors. Neither is the agent of the other and neither may bind the other.
Entire Agreement. This agreement, together with the non-disclosure agreement, represents the complete
agreement between the parties regarding its subject matter, superseding any prior oral or written agreements or understandings relating thereto. No amendment to this agreement is binding unless both parties sign it.
Governing Law and Forum. This agreement is governed by the laws of the State of Michigan (without regard to
conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.
Munetrix, LLC Socrata, Inc._____________________________ By:____________________________ By:___________________________ Name: __Robert Kittle________ Name: __________________________ Title:____President____________ Title:_________________________ Date:__________________________ Date:__________________
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EXHIBIT A
DESCRIPTION OF TEAMMATE WORK UNDER AGREEMENT
Upon successful award of a contract for the State of Michigan’s RFP for a Financial Accountability Reporting System, and upon a successful execution of a Master Services Agreement, Socrata agrees to, or work in conjunction with Munetrix personnel to:
Transfer all applicable Munetrix-Michigan data onto the Socrata Platform Design and code necessary components in order to meet the requirements in the RFP that are not
met by Munetrix’s current solution, including but not limited to: o Michigan’s Look and Feel Standards o Michigan’s Dashboard Display Methodology o Back-end Client customizations, User Management etc…
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Exhibit 3
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Original – Court
STATE OF MICHIGAN 6TH JUDICIAL CIRCUIT COUNTY OF OAKLAND
NOTICE OF ASSIGNMENT TO THE BUSINESS COURT
CASE NO.
Court address Court telephone no.1200 N Telegraph Rd Pontiac, MI 48341
Plaintiff’s name(s), address(es), and telephone number(s)
v
Defendant’s name(s), address(es), and telephone number(s)
Plaintiff’s attorney, bar no., address, telephone no., and email address Defendant’s attorney, bar no., address, telephone no., and email address
The Plaintiff Defendant requests assignment of the above captioned matter to the Business Court. The case qualifies for the Business Court and the matter should be identified as Business Court eligible pursuant to MCL 600.8031, MCL 600.8035, and LAO 2013-xx as indicated below. (Check all that apply.)
The case is a qualifying business or commercial dispute as defined at MCL 600.8031(c): as All of the parties are business enterprises; One or more of the parties is a business enterprise and the other parties are its or their present or former owners, managers shareholders, members, directors, officers, agents, employees, suppliers, or competitors, and the claims arise out of those relationships; One of the parties is a nonprofit organization and the claims arise out of that party’s organizational structure, governance, or finances; It involves the sale, merger, purchase, combination, dissolution, liquidation, structure, governance, or finances of a business enterprise.
The business or commercial dispute involves: Information technology, software, or website development, maintenance or hosting; The internal organization of business entities and the rights or obligations of shareholders, partners, members, owners, officers, directors, or managers; Contractual agreements or other business dealing, including licensing, trade secrets, intellectual property, antitrust issues, securities, non-compete agreements, non-solicitation agreements, and confidentiality agreements, if all available administrative remedies are completely exhausted, including, but not limited to alternative dispute resolution processes prescribed in the agreements; Commercial transactions, including commercial bank transactions; Business or commercial insurance policies; and/or Commercial real property. Other:
Date Name
Attorney for:
OCBC 01 (05/13) NOTICE OF ASSIGNMENT TO THE BUSINESS COURT
248-858-0345
(Please explain)
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This case has been designated as an eFiling case. To review a copy of the Notice of Mandatory eFiling visit www.oakgov.com/clerkrod/Pages/efiling.
2017-159844-CBJUDGE ALEXANDER
Munetrix LLC 3297 Five Points Dr Auburn Hills, MI 48326
Roger P. Meyers (P73255) Bush Seyferth & Paige PLLC 3001 W Big Beaver, Suite 600, Troy, MI 48084 248-822-7800, [email protected]
Socrata, Inc. c/o the Corporation Trust Co. Corporation Trust Center 1209 Orange St Wilmington, DE 19801
7/19/17 /s/ Roger P. Meyers
Munetrix LLC