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AGREEMENT TO FURNISH ENERGY MANAGEMENT l
SYSTEM INTERFACE SOFTWARE SERVICES
This Agreement is made and entered into this 19th day of December, 2000, by and between
the City of Redlands, a municipal corporation (hereinafter "City") and Honeywell Inc., Home and
Building Control, hereinafter ("Honeywell").
In consideration of the mutual promises, covenants and conditions hereinafter set forth, City
and Honeywell agree as follows:
1.1
ARTICLE 1 - ENGAGEMENT OF HONEYWELL
City retains Honeywell to furnish a Honeywell, Inc. Energy Management System Interface
Software System that will enable City personnel to make scheduling changes and respond
to hot/cold calls for existing City facilities with Honeywell Direct Digital controls (the
"Services"). This Interface software equipment will replace Honeywell, Inc. Service Net
Support, which is currently monitoring City's facilities.
1.2 The Services shall be performed by Honeywell in a professional manner, and Honeywell
represents that it has the skill and the professional expertise necessary to provide the Services
to City at a level of competencypresently maintained by other practicing professional
consultants in the industry providing like and similar types of services.
ARTICLE 2 - SERVICES OF HONEYWELL
2.1 Honeywell shall furnish the necessary software, hardware and labor to design and install the
Energy Management System Interface. Honeywell's Services include the provision of data
base generation, graphics generation, installation, testing and "check-out" of all software, the
performance of all calibrations, and adjustments, and a final check of the operation of the
software equipment. Honeywell shall also provide instruction to City's personnel regarding
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operation of the Interface, and guarantee the Energy Management System Interface and
software equipment and its proper operation for a period of one (1) year from January 31,
2001, for completion of installation of the equipment. In addition to the foregoing, the
Services which Honeywell shall perform are more particularly described in Exhibit "A,"
entitled "Scope of Work," which is attached hereto and incorporated herein by this
reference.
ARTICLE 3 - RESPONSIBILITIES OF CITY
3.1 City shall make available to Honeywell all information in its possession that is pertinent to
the performance of Honeywell's Services.
3.2 City will make provisions for Honeywell to enter upon City -owned property, as required by
Honeywell, to perform the Services.
ARTICLE 4 - COMPLETION OF SERVICES
4.1 Honeywell shall complete the Services required by this Agreement by January 19, 2001. On
such date, the Interface Software Equipment shall be fully installed and operational.
ARTICLE 5 - PAYMENTS TO HONEYWELL
5.1 The total compensation for Honeywell's performance of the Services shall be Sixteen
Thousand Five Hundred Seventy Five dollars ($16,575.00), (the "Purchase Price"). Upon
City's approval of this Agreement, City shall pay Honeywell ten percent (10%) of the
Purchase Price for engineering and other mobilization costs reasonably incurred by
Honeywell prior to on -site installation of the equipment.
5.2 Honeywell shall bill City within ten days following the close of each month by submitting
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an invoice indicating the portion of the Services performed, who performed the Services, and
a detailed cost of all Services, including backup documentation. Payments by City to
Honeywell shall be made within 30 days after receipt and approval of Honeywell's invoice,
by warrant payable to Honeywell.
5.3 All payments by City to Honeywell, and all notices required or otherwise given under this
Agreement, shall be sent by mail and addressed as follows:
City,
Ronald C. Mutter
Public Works Director
35 Cajon Street, Suite 222
Redlands, CA 92373
Honeywell
Edward Matthews
District General Manager
Honeywell Inc., Home and Building Control
6 Centerpointe Drive
La Palma, CA 90627
When so addressed, such notices shall be deemed given upon deposit in the United States Mail.
Changes may be made in the names and addresses of the person to whom notices and payments are
to be given by giving notice pursuant to this paragraph.
ARTICLE 6 - HONEYWELL SOFTWARE LICENSE
6.1 All software provided by Honeywell pursuant to this Agreement shall be licensed from
Honeywell. City shall execute a license agreement in the form attached hereto as Exhibit
"B," with provisions limiting use of the software preserving confidentiality, and prohibiting
transfer to third parties. In no event shall Honeywell be liable for any non -Honeywell
supplied software or for any warranties implied by law or otherwise, including any warranties
of merchantability or fitness for a particular purpose. In no event shall Honeywell or its
directors, officers, or employees be liable to City for any indirect, incidental, special or
consequential damages relating to or arising out of any breach of this warranty.
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ARTICLE 7 - PROPRIETARY INFORMATION
7.1 All proprietary information (as defined herein) obtained by City from Honeywell in
connection with this Agreement shall remain the property of Honeywell, and City shall not
divulge such information to any third party without prior written consent of Honeywell. As
used herein, the term "proprietary information" shall mean written information (or oral
information reduced to writing), or information in machine-readable form, including but not
limited to software supplied to City hereunder which Honeywell deems proprietary or
confidential and characterizes as proprietary at the time of disclosure to City by marking or
labeling the same "Proprietary," "Confidential," or "Sensitive." City shall incur no
obligations hereunder with respect to proprietary information which: (a) was in City's
possession or was known to City prior to its receipt from Honeywell; (b) is independently
developed by City without the utilization of such confidential information of Honeywell; (c)
is or becomes public knowledge through no fault of City; (d) is or becomes available to City
from a source other than Honeywell; (e) is or becomes available on an unrestricted basis to
a third party from Honeywell or from someone acting under its control; (f) is received by
City after notification to Honeywell that City will not accept any further information.
ARTICLE 8 - PATENT INDEMNITY
8.1 Honeywell shall, at its expense, defend or, at its option, settle any suit that may be instituted
against City for alleged infringement of any United States patents related to the hardware or
software manufactured and provided by Honeywell ("the Equipment"), provided that:
A. Such alleged infringement consists only in the use of the Equipment by itself and not
as part of, or in combination with, any other devices, parts or software not provided
by Honeywell hereunder;
B. City gives Honeywell reasonable notice in writing of any such suit and permits
Honeywell, through counsel of its choice, to answer the charge of infringement and
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defend such suit; and
C. City gives Honeywell all needed information, assistance and authority, at
Honeywell's expense, to enable Honeywell to defend such suit.
If such a suit has occurred, or in Honeywell's opinion is likely to occur, Honeywell may, at
its election and expense:
i. Obtain for City the right to continue using the Equipment;
ii. Replace, correct or modify it so that it is not infringing; or
iii. Remove the Equipment and grant City a credit therefore, as depreciated.
In the case of a final award of damages in any such suit, Honeywell will pay such award.
Honeywell shall not, however, be responsible for any settlement made without its written consent.
This Article states Honeywell's total liability and City's sole remedy for any actual or alleged
infringement of any patent by the Equipment manufactured and provided by Honeywell hereunder.
ARTICLE 9 - INSURANCE AND INDEMNIFICATION
9.1 Honeywell shall maintain worker's compensation insurance and, in addition, shall maintain
insurance to protect City from claims for damage due to bodily injury, personal injury and
death, and claims for injury to or destruction of tangible property while performing the
Services required by this Agreement. Such public liability and property damage insurance
shall be in a minimum combined single limit of $1,000,000, and in the aggregate. Honeywell
shall provide automobile liability, and, in addition, shall maintain insurance to protect City
from claims for damage due to bodily injury, personal injury and death, and claims for injury
to or destruction of tangible property while performing the Services required by this
Agreement. Such public liability and property damage insurance shall be in a minimum
combined single limit of $2,000,000, and in the aggregate. Honeywell shall maintain
professional liability insurance in the aggregate amount of $1,000,000 with a minimum of
$500,000 per occurrence. Automobile liability shall be in a minimum $500,000 blanket, and
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$50,000 per occurrence, to be obtained within 30 days. City shall be named as an additional
insured under all policies for public liability, property damage and comprehensive
automobile liability and professional liability insurance, and such insurance shall be primary
with respect to City and non-contributing to any insurance or self-insurance maintained by
City. Honeywell shall provide City with certificates of insurance evidencing such insurance
coverage prior to commencing the Services.
9.2 Honeywell shall defend, indemnify and hold harmless City, and its elected officials, officers,
agents and employees, from and against all claims, loss, damage, charges and expense to
which it or any of them may be subjected to the extent that they arise out of, or result from,
any willful or negligent act or actions, omission or failure to act on the part of Honeywell,
its contractors, its suppliers, anyone directly or indirectly employed by any of them or anyone
for whose acts or omissions any of them may be liable in the performance of the Services
required by this Agreement.
ARTICLE 10 - GENERAL
10.1 In the event any action is commenced to enforce or interpret any of the terms or conditions
of this Agreement the prevailing party shall, in addition to any costs and other relief, be
entitled to the recovery of its reasonable attorneys' fees.
10.2 Honeywell shall not assign any of the Services required by this Agreement, except with the
prior written approval of City and in strict compliance with the terms, provisions and
conditions of this Agreement.
10.3 All documents, records, drawings, designs, cost estimates, electronic data files, databases,
and other documents developed by Honeywell pursuant to this Agreement shall become the
property of City and shall be delivered to City upon completion of the Services, or upon the
request of City. Any reuse of such documents and any use of incomplete documents will
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be at City's sole risk.
10.4 Honeywell is for all purposes an independent contractor. Honeywell shall supply all tools
and instrumentalities required to perform the consulting services in this Agreement. All
personnel employed by Honeywell are for its account only, and in no event shall Honeywell
or any personnel retained by it be deemed to have been employed by City or engaged by City
for the account of or on behalf of City.
10.5 Unless earlier terminated, as provided for below, this Agreement shall terminate upon
completion and acceptance by City of the Services.
10.6 This Agreement, including the attachments incorporated herein by reference, represents the
entire agreement and understanding between the parties and any prior negotiations, proposals
or oral agreements are superseded by this Agreement. Any amendment to this Agreement
shall be in writing, approved by the City Council of City and signed by City and Honeywell.
10.7 This Agreement shall be governed by and construed in accordance with the laws of the State
of California.
IN WITNESS WHEREOF, duly authorized representatives of the City and Honeywell have
signed in confirmation of this Agreement.
City of Redlands Honeywell
By:
Attest:
PAT GILBREATH
Mayor
itty. Clerk, City s 'f 'dlands
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By:=Z1r2�7"c,r •°2G�
EDWARD MATTHEWS
District General Manager
EXHIBIT HA"
BUILDING SYSTEMS AGREEMENT
Proposal Date: May 3, 2000
TO: Ron Mutter, Director of Public Works
City of Redlands
P.O. Box 3005, 35 Cajon Street, Suite 222
Redlands, CA. 92373
(HEREINAFTER REFERRED TO AS "CUSTOMER")
HONEYWELL
Agreement No.:
Project Name; EBI/Honeywell Building Manager
Redlands Energy Management System Interface
Honeywell Contractor License #52926
HONEYWELL PROPOSES: to furnish and commission a Honeywell, Inc. Energy Management System
Interface that will enable the customer Public Works personnel to make scheduling changes and respond
to hot/cold calls of existing city facilities with Honeywell Direct Digital Controls. This interface will be
replacing Honeywell, Inc. ServiceNet support, which is currently monitoring the customer facilities.
PRICE:Sixteen Thousand Five Hundred Seventy Five and 00/100 Dollars $ 16,575.00.
Initial Payment — Upon CUSTOMER acceptance of this proposal, or issuance of CUSTOMER'S Letter of Intent, or contract
execution, whichever occurs first, the CUSTOMER shall pay Honeywell ten percent 10%of the Price. Such payment shall be
used for engineering and other mobilization costs reasonably incurred prior to on -site installation.
EJ Sales Tax will be invoiced separately
PERIOD OF PERFORMANCE:
To be determined upon receipt of schedule
E] Use Tax is included in the Price This sale is tax exempt
THE FOLLOWING SCOPE OF WORK SHALL BE PERFORMED:
Under this proposal we will furnish the necessary software, hardware and labor to provide the Energy
Management System Interface. Labor includes; data base generation graphics generation, installation,
testing and check out the software, make all calibrations, adjustments, and a final check of the operation
of this equipment; instruct the operating personnel and guarantee the equipment and its operation for a
period of one (1) year.
This proposal includes the following:
1. Provide one (1) EBI/Honeywell Building Manager client software package including Display
Builder (Graphics Tools), Alarm Paging and Quick Builder (Data Base generator) for a complete
and operable Energy Management System Interface.
2. XLNET Dialup interface license for remote access into the following city facilities;
• Civic Center- City Hall
• Civic Center- Building A
• Civic Center- Building B
• Civic Center- Basement Mechanical Area
• Library
• Police Annex
• Police and Safety
• Waste Water Plant
• Community Center
• Joslyn Senior Center
3. Provide one (1) XPC500 PC interface board
4. Provide two (2) high speed modems with associated cabling
5. Provide data base generation, graphics development, dialup device re -configuration, and
checkout of Energy Management System Interface
6. Provide eight (8) hours of on -site operator training
BUILDING SYSTEMS AGREEMENT (REV. 04-99)
EBI Proposnl,DOC
Page 1 of 4
05/03/00
HONEYWELL
BUILDING SYSTEMS AGREEMENT
This proposal specifically excludes the following:
1. Computer with Windows NT and MS Office, Honeywell will provide specifications to customer
2. Two (2) dedicated analog telephone lines for Energy Management System interface
3. Off -site training
4. Overtime Labor including holidays, all work to be performed during normal working hours
(Monday through Friday 7:00am to 4;oopm).
5. Additions or control sequence modifications to existing Energy Management System field
equipment and software configuration
CLARIFICATIONS:
• Specification, computer to be provided by the customer;
EBI/Home Building Manager Server Platform Specifications
Processor: Pentium III, 500 Mz.
Memory: 512 MB
Hard Disk: 6.4 GB
Video memory; 8 MB
Display Resolution: 1024 x 768 x 65k colors
Operating system: Microsoft NT 4.0
END OF SCOPE OF WORK
This proposed Agreement is valid through 6/30/00. Honeywell's standard terms and conditions shall govern any resulting
contract.
SUBMITTED BY:
(S t NATURE)
NAME: Richard Perez
TITLE: Service Account Specialist
HONEYWELL INC., Home and Building Control
6 Centerpointe Drive
La Palma, California 90623
(714) 562-3028
BUILDING SYSTEMS AGREEMENT (REV. 04-99)
EBI Proposal.DOC
Page 2 of 4
05/03/00
' BUILDING SYSTEMS AGREEMENT
EXHIBIT
Standard Terms and
1, CANCELLATION, Unless otherwise indicated, prices quoted are valid
for thirty (30) days from the above referenced proposal date.
2. TERMS OF PAYMENT, Subject to HONEYWELL'S approval of
CUSTOMER'S credit payment terms are as follows:
Progress Payments - HONEYWELL will invoice at least monthly for all
materials delivered to the Job site or to an off -site storage facility and for all
installation, labor, and services performed, both on and off the job site.
CUSTOMER agrees to pay the full amounts invoiced, less retainage, upon receipt
of the Invoice at the address specified by the CUSTOMER Invoices not paid
within thirty (30) days of the invoice date are past due and accrue interest from
the invoice date to the date of payment at the rate of one percent (1%) per month,
compounded monthly.
Retainage - CUSTOMER shall not withhold, as retainage, a greater percentage
than is withheld from CUSTOMER under a prime contract, if applicable.
CUSTOMER shall pay all retainage to HONEYWELL within 30 days after
HONEYWELL'S work is substantially complete.
Suspension of work - If HONEYWELL, having performed work per Agreement
requirements, does not receive payment within thirty (30) days after submission
of a HONEYWELL invoice, HONEYWELL may suspend work until
CUSTOMER provides remedy.
3. OVERTIME. Unless otherwise stated, all labor or services to be supplied by
HONEYWELL shall be supplied during normal working hours, Monday through
Friday, excluding holidays. If CUSTOMER requests that HONEYWELL supply
labor or services outside such normal working hours, any pay differential, or
other additional expense, shall be paid by CUSTOMER as an extra.
4, WORK BY OTHERS. Unless otherwise indicated, the following items are to be
furnished and installed by others: electric wiring and accessories, all in -line
devices (including but not limited to flow tubes, hand valves, orifice plates,
orifice flanges, eta.), pipe and pipe penetrations including flanges for mounting
pressure and level transmitters, temperature sensors, vacuum breakers, gauge
glasses, water columns, equipment foundations, riggings, steam tracings, and all
other items and work of like nature. Automatic valve bodies and dampers
furnished by HONEYWELL are to be installed by others.
5. DELIVERY AND DELAYS. (a) Delivery of equipment not agreed on the face
hereof to be installed by or with the assistance of HONEYWELL shall be F.O.B.
at HONEYWELL'S factory, warehouse, or office selected by HONEYWELL.
Delivery of equipment agreed on the face hereof to be installed by or with the
assistance of HONEYWELL shall be C.I.F. at site of installation. (b) This
Agreement assumes that equipment and labor will be provided in accordance with
the intended or already published job schedules. HONEYWELL shall not be
liable for any delay in producing, delivering, installing, or giving advice and
technical assistance for any of the equipment or software covered hereunder if
such delay shall be due to ono or more of the following causes: fire, strike,
lockout, dispute with workmen, flood, lightning, accident, delay in transportation,
shortage of fuel, inability to obtain material, war, embargo, demand or
requirement of the United States or any governmental or war activity, or any
other cause whatsoever beyond the reasonable control of HONEYWELL, In
addition, HONEYWELL shall not be liable for any delays caused by failure of
CUSTOMER, or its agent or any person or entity not a party hereto, to perform
any of its obligations in a timely manner. In the event of any such delay, date of
shipment or perfonnance shall be extended by a period equal to the time lost by
reason of such delay, and HONEYWELL shall be entitled to recover from
CUSTOMER its reasonable costs, overhead, and profit arising from such delay.
6. DAMAGE OR LOSS. HONEYWELL shall not be liable for damage to or loss
of equipment and software after delivery to destination determined by this
Agreement or any applicable prime contract. If thereafter, and prior to payment
in full to HONEYWELL by CUSTOMER, any such equipment or software is
damaged or destroyed by any cause whatsoever, other than by the fault of
HONEYWELL, the CUSTOMER agrees promptly to pay or reimburse
HONEYWELL for such loss.
7. CLAIMS FOR SHORTAGES. CUSTOMER shall examine each shipment
immediately upon receipt and any claim for shortage must be reported to
HONEYWELL promptly.
8. TAXES. With regard to sales of equipment or software not installed by
HONEYWELL, the amount of all present and future taxes and governmental
charges upon production, shipment, sale, or use of the equipment or software
shall be added to the Agreement price and paid by the CUSTOMER With regard
to contracts for installation of equipment or software by HONEYWELL, the
amount of any new or increased taxes or governmental charges upon labor or the
production, shipment, sale, installation, or use of equipment or software which
become effective after the date of this proposal, shall be added to Agreement
price and paid by CUSTOMER. If CUSTOMER claims any such taxes do not
apply to transactions covered by this Agreement, CUSTOMER shall provide
HONEYWELL with a tax exemption certificate acceptable to the applicable
taxing authorities,
9. LIQUIDATED DAMAGES AND HONEYWELL'S LIMITS OF
LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED ELSEWHERE IN THIS DOCUMENT, when the scope -of -work
includes fire and/or security components, the parties agree that Honeywell is not
an insurer; that the system and/or Service purchased herein is designed only to
reduce the risk of loss; that CUSTOMER chose the system and/or Service from
several levels of protection offered by Honeywell; that Honeywell will not be
held liable for any loss, whether in tort or contract, which may arise from the
1
12
Hirt
Conditions
failure of the system and/or Service; and that CUSTOMER will INDEMNIFY,
DEFEND AND SAVE HONEYWELL HARMLESS FROM ANY AND ALL
LOSS, CLAIMS, ACTIONS, CAUSES OF ACTIONS OR EXPENSE,
INCLUDING ATTORNEYS' FEES, ARISING FROM THE ACTUAL OR
ALLEGED MALFUNCTION OR NONFUNCTION OF THE SYSTEM
AND/OR SERVICE. The parties agree that this Agreement shall not confer any
rights on the part of any person or entity not a party hereto, whether as a third -
party beneficiary or otherwise.
BECAUSE rf IS EXTREMELY DIFFICULT TO ASSESS ACTUAL
DAMAGES ARISING FROM THE FAILURE OF A SYSTEM AND/OR
SERVICE, THE PARTIES AGREE THAT IF ANY LIABILITY IS
IMPOSED ON HONEYWELL FOR DAMAGES OR PERSONAL INJURY
TO EITHER CUSTOMER OR ANY THIRD PARTY, SUCH LIABILITY
SHALL BE LIMITED TO AN AGGREGATE AMOUNT NOT TO
EXCEED $10,000 OR THE AMOUNT OF THE ANNUAL SERVICE
CHARGE, WHICHEVER IS LESS. THIS SUM SHALL BE PAID EITHER
AS (i) LIQUIDATED DAMAGES AND NOT AS A PENALTY, OR (ii) A
LIMITATION OF LIABILITY AGREED UPON BY THE PARTIES. NO
SUIT OR ACTION SHALL BE BROUGHT AGAINST HONEYWELL
MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE
OF ACTION THEREOF. CUSTOMER may obtain an additional amount of
liquidated damages or a higher limitation of liability by paying an additional
amount to Honeywell. This clause will not be interpreted to establish Honeywell
as an insurer.
CUSTOMER does hereby for himself and other parties claiming under it, release
and discharge HONEYWELL from and against all claims arising from hazards
covered by CUSTOMER'S insurance, it being expressly agreed and understood
that no insurance company or insurer will have any right of subrogation against
HONEYWELL.
10. LIMITED EQUIPMENT WARRANTY. HONEYWELL warrants that any
equipment or part purchased under this Agreement will be free from defects in
material and workmanship for a period of one (1) year from the date such
equipment or part is placed into operation. If, during this warranty period, any of
the equipment or parts are defective or malfunction, they will be repaired or
replaced, at HONEYWELL'S option, free of charge. This warranty will not
apply if the damage or malfunction occurs because the system has been added to,
altered, abused, misused or tampered with by the CUSTOMER or any third party,
or otherwise operated contrary to the operating instructions. DISCLAIMER OF
ALL OTHER WARRANTIES; EXCEPT FOR THE ABOVE -DESCRIBED
LIMITED EQUIPMENT WARRANTY, HONEYWELL MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, INCLUDING ANY WARRANTY THAT THE
SYSTEM OR SERVICE WILL IN ALL CASES PROVIDE THE
PROTECTION FOR WHICH IT IS INTENDED.
1. INDEMNITY . Except for the Work itself and property insured under the
Agreement documents, and except where the scope of work includes fire and/or
security, HONEYWELL shall indemnify CUSTOMER for all direct damages
proximately caused by the negligence of an employee, agent or representative of
Honeywell where said damage or injury occurred during the performance of
installation or service while on CUSTOMER'S or its CUSTOMER's premises;
provided that: (i) CUSTOMER gives Honeywell notice in writing within fifteen
(15) days of the incident giving rise to any claim, demand or other matter to
which HONEYWELL'S indemnification obligations would apply and permits
Honeywell, through counsel of HONEYWELL'S choice and at HONEYWELL'S
sole cost and expense, to answer the charge and defend such claim; and (ii)
CUSTOMER uses reasonable efforts to provide to HONEYWELL all needed
information, assistance and authority, at HONEYWELL'S sole cost and expense,
to enable Honeywell to defend such claim, Honeywell shall not be responsible
for any settlement without its written consent.
HOWEVER, HONEYWELL SHALL NOT BE LIABLE FOR LOSS OR
DAMAGE CAUSED BY THE NEGLIGENCE OF CUSTOMER OR ANY
OTHER PARTY OR SUCH OTHER PARTY'S EMPLOYEES OR
AGENTS, THIS OBLIGATION SHALL SURVIVE THE TERMINATION
OF THIS AGREEMENT. NOTHING IN THIS ARTICLE SHALL BE
CONSTRUED OR UNDERSTOOD TO ALTER THE LIMITATIONS OF
LIABILITY CONTAINED IN THIS ARTICLE AND ARTICLES 9, 10, 12,
OR 14. IN NO EVENT SHALL HONEYWELL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER SUCH
INDIRECT DAMAGES WHETHER ARISING OUT OF OR AS A RESULT
OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
. PATENT INDEMNITY. HONEYWELL shall, at its expense, defend or, at its
option, settle any suit that may be instituted against CUSTOMER for alleged
infringement of any United States patents related to the hardware or software
manufactured and provided by HONEYWELL ("the equipment"), provided that:
a. Such alleged infringement consists only in the use of such equipment by
itself and not as part of, or in combination with, any other devices, parts
or software not provided by HONEYWELL hereunder;
b. CUSTOMER gives HONEYWELL immediate notice in writing of any
such suit and permits HONEYWELL, through counsel of its choice, to
answer the charge of infringement and defend such suit; and
BUILDING SYSTEMS AGREEMENT (REV. 04-99)
EBI Proposal
Page 3 of 4
11/03/00
BUILDING SYSTEMS AGREEMENT
c. CUSTOMER gives HONEYWELL all needed information, assistance and
authority, at HONEYWELL'S expense, to enable HONEYWELL to
defend such suit.
If such a suit has occurred, or in HONEYWELL'S opinion is likely to occur,
HONEYWELL may, at Its election and expense:
i. Obtain for CUSTOMER the right to continue using such equipment;
ii, Replace, correct or modify it so that it is not infringing; or
iii. Remove such equipment and grant CUSTOMER a credit therefore, as
depreciated.
In the case of a final award of damages in any such suit, HONEYWELL will pay
such award. HONEYWELL shall not, however, be responsible for any settlement
made without its written consent,
THIS ARTICLE STATES HONEYWELL'S TOTAL LIABILITY AND
CUSTOMER'S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY PATENT BY THE EQUIPMENT
MANUFACTURED AND PROVIDED BY HONEYWELL HEREUNDER.
13. SOFTWARE LICENSE. All software provided in connection with this
Agreement shall be licensed and not sold. The end user of the software will be
required to sign a license agreement with provisions limiting use of the software
to the equipment provided under these specifications, limiting copying,
preserving confidentiality, and prohibiting transfer to a third party. Licenses of
this type are standard for computer -based equipment of the type covered by this
Agreement. CUSTOMER shall be expected to grant HONEYWELL access to
the end user for purposes of obtaining the necessary software license.
Honeywell warrants that any software, system and/or components provided
pursuant to this Agreement and which were manufactured by HONEYWELL,
will be usable prior to and during the calendar year 2000 AD without substantial
error relating to date data, specifically including any error relating to, or the
product of, date data which represents or references different centuries or more
than one century. HONEYWELL DOES NOT WARRANT, AND HEREBY
DISCLAIMS ANY WARRANTY THAT ANY SOFTWARE, SYSTEM OR
COMPONENT PROVIDED UNDER THIS AGREEMENT, WILL
RESOLVE ANY YEAR 2000 RELATED ISSUE WITH ANY SYSTEM,
SOFTWARE OR COMPONENT ALREADY IN CUSTOMER'S
POSSESSION OR USE OR NOT MANUFACTURED BY HONEYWELL.
HONEYWELL DOES NOT WARRANT THAT ANY SOFTWARE,
SYSTEM OR ANY COMPONENT THEREOF, CURRENTLY IN
CUSTOMER'S POSSESSION, WHETHER OR NOT COVERED UNDER
THIS AGREEMENT AND WHETHER OR NOT PROVIDED BY
HONEYWELL, WILL BE USABLE PRIOR TO, DURING, AND AFTER
THE CALENDAR YEAR 2000 AD. HONEYWELL DOES NOT
WARRANT AND HEREBY DISCLAIMS ANY WARRANTY THAT ANY
SOFTWARE, SYSTEM OR ANY COMPONENT THEREOF WILL
OPERATE DURING EACH SUCH TIME PERIOD WITHOUT ERROR
RELATING TO DATE DATA, SPECIFICALLY INCLUDING ANY
ERROR RELATING TO, OR THE PRODUCT OF, DATE DATA WHICH
REPRESENTS OR REFERENCES DIFFERENT CENTURIES OR MORE
THAN ONE CENTURY.
IF ANY HONEYWELL SYSTEM, SOFTWARE OR COMPONENT
SHOULD FAIL TO MEET THE ABOVE WARRANTY, HONEYWELL,
AT ITS SOLE OPTION, SHALL REPAIR OR REPLACE THE SYSTEM,
SOFTWARE OR COMPONENT WITHIN 90 DAYS OR PROVIDE A
PRORATED REFUND BASED UPON A 60 MONTH USEFUL LIFE FOR
THE SOFTWARE.
WITH RESPECT TO THE PROCESSING OF DATES AND TIMES BY
HONEYWELL SOFTWARE, THE WARRANTY STATED HEREIN IS
EXCLUSIVE. IN NO EVENT SHALL HONEYWELL BE LIABLE FOR
ANY NON-HONEYWELL SUPPLIED SOFTWARE OR FOR ANY
WARRANTIES IMPLIED BY LAW OR OTHERWISE, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, IN NO EVENT SHALL HONEYWELL OR
ITS DIRECTORS, OFFICERS, OR EMPLOYEES BE LIABLE TO
CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF
ANY BREACH OF THIS WARRANTY.
14. PROPRIETARY INFORMATION. All proprietary information (as defined
herein) obtained by CUSTOMER from HONEYWELL in connection with this
Agreement shall remain the property of HONEYWELL, and CUSTOMER shall
not divulge such information to any third party without prior written consent of
HONEYWELL. As used herein, the term "proprietary information" shall mean
written information (or oral information reduced to writing), or information in
machine-readable form, including but not limited to software supplied to
CUSTOMER hereunder which HONEYWELL deems proprietary or confidential
and characterizes as proprietary at the time of disclosure to CUSTOMER by
marking or labeling the same "Proprietary, "Confidential", or "Sensitive". The
CUSTOMER shall incur no obligations hereunder with respect to proprietary
information which: (a) was in the CUSTOMER'S possession or was known to the
CUSTOMER prior to its receipt from HONEYWELL; (b) is independently
developed by the CUSTOMER without the utilization of such confidential
information of HONEYWELL; (c) is or becomes public knowledge through no
fault of the CUSTOMER; (d) is or becomes available to the CUSTOMER from a
source other than HONEYWELL; (e) is or becomes available on an unrestricted
basis to a third party from HONEYWELL or from someone acting under its
control; (f) is received by CUSTOMER after notification to HONEYWELL that
the CUSTOMER will not accept any further information.
15, HAZARDOUS MATERIALS. CUSTOMER represents and warrants that,
except as otherwise disclosed in writing by the CUSTOMER, in the areas where
HONEYWELL will undertake work or provide services, there are no: (a)
materials or substances classified as toxic or hazardous either (i) on or within the
walls, floors, ceilings or other structural components or (ii) otherwise located in
the work area, including asbestos or presumed asbestos -containing materials,
formaldehyde, containers or pipelines containing petroleum products or
hazardous substances, etc.; (5) situations subject to special precautions or
equipment required by federal, state, or local health or safety regulations; or (c)
unsafe working conditions. CUSTOMER shall notify HONEYWELL of any
changes or updates that occur during the course of this Agreement. Natty such
materials, situations or conditions, whether disclosed or not, are in fact discovered
by HONEYWELL or others and provide an unsafe condition for the performance
of the work or services, the discovery of the material, situation or condition shall
constitute a cause beyond HONEYWELL'S reasonable control and
HONEYWELL shall have the right to cease or not commence the work or
support services until the area has been made safe by the CUSTOMER or
CUSTOMER'S representative, at CUSTOMER'S expense.
CUSTOMER SHALL INDEMNIFY AND HOLD HONEYWELL
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND
COSTS OF WHATEVER NATURE, INCLUDING BUT NOT LIMITED
TO, CONSULTANTS' AND ATTORNEYS' FEES, DAMAGES FOR
BODILY INJURY AND PROPERTY DAMAGES, FINES, PENALTIES,
CLEANUP COSTS AND COSTS ASSOCIATED WITH DELAY OR
WORK STOPPAGE, THAT IN ANY WAY RESULTS FROM OR ARISES
UNDER SUCH MATERIALS, SITUATIONS OR CONDITIONS,
REGARDLESS OF WHETHER CUSTOMER HAS PRE -NOTIFIED
HONEYWELL. THIS INDEMNIFICATION SHALL SURVIVE
TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
16. DISPUTE RESOLUTION. With the exception of any controversy or claim
arising out of or related to the installation, monitoring, and/or maintenance of
systems associated with security and/or the detection of, and/or reduction of risk
of loss associated with fire, the Parties agree that any controversy or claim
between HONEYWELL and CUSTOMER arising out of or relating to this
Agreement, or the breach thereof, sltsll be settled by arbitration, conducted in
accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association . Any award rendered by the arbitrator shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof. Any controversy or claim arising out of or related to
the installation, monitoring, and/or maintenance of systems associated with
security and/or the detection of, and/or reduction of risk of loss associated with
fire shall be resolved in a court of competent jurisdiction.
•
17. ACCEPTANCE. Acceptance of this proposal shall create an agreement ("the
Agreement") between HONEYWELL and CUSTOMER, the terms and
conditions are expressly limited to the provisions hereof, including these Standard
Terms and Conditions; notwithstanding receipt of, or acknowledgment by,
HONEYWELL of any purchase order, specification, or other document issued by
CUSTOMER. This Agreement supersedes any and all prior agreements and
representations between the Parties related to the scope -of -work herein. This
Agreement will only be modified by a written instrument executed by the Parties.
THIS AGREEMENT IS HEREBY ACCEPTED IN ACCORDANCE WITH ARTICLE 17:
CUSTf� 1EERR gib, of Redlands s HONEYWELL INC., Home and Building Control
(SIGNATURE)
BY:
TITLE:
DATE:
_Pat Gilbreath
Mayor_
December 19, 2000
ATTEST:
J
or e Poyze,y Clerk
(SIGNATURE)
BY:
TITLE:
DATE:
BUILDING SYSTEMS AGREEMENT (REV, 04-99)
EBI Proposal
Page 4 of 4
11/03/00
jitara Veaeitece Setadef
7:'citectey ee &viz
Vim: February 13, 2001
7a: Ron Mutter, Public Works Director
Suet: Honeywell Agreement
Attached is a copy the cover page to an agreement approve with Honeywell on
December 19, 2000. Do you have any information on the status of the original that was
supposed to be returned to us?
Att.
16444 e — 'eat £ teGtg
voce-te, &re/ eeeitz
rate: February 11, 2002
7a: Ron Mutter, Public Works Dir.
S%, eee: December 19, 2000 - Honeywell Agreement
The document attached was approved on December 19, 2000, by the City Council and
originals sent to you for execution by the other party. To date, an original has not been
returned to this office for our records. Therefore the copy retained by this office is what will
be filed with the official records.
Thanks
xc: Lorrie Poyzer, City Clerk
B-plate
Missing Documents
Interstate Highway 10 with a 52-foot wide street within the 66-foot wide right-
of-way.
Resolution No. 5825 - Safe Drinking Water Fund - On motion of
Councilmember George, seconded by Councilmember Haws, the City Council
unanimously adopted Resolution No. 5825, a resolution of the City Council of
the City of Redlands authorizing submission of an application to the Safe
Drinking Water State Revolving Fund and designating an authorized
representative to sign documents pertaining to the loan application.
Resolution No. 5826 - Code Enforcement Incentive Program - On motion of
Councilmember George, seconded by Councilmember Haws, the City Council
unanimously adopted Resolution No. 5826, a resolution of the City Council of
the City of Redlands authorizing the submittal of a grant application, the
incurring of an obligation, the execution of a grant agreement and any
amendments thereto, and any other documents necessary to secure a Code
Enforcement Incentive Program grant from the State of California Department
of Housing and Community Development.
Resolution No. 5827 - Election Results - On motion of Councilmember George,
seconded by Councilmember Haws, the City Council unanimously adopted
Resolution No. 5827, a resolution of the City Council of the City of Redlands
reciting the fact of the special municipal election held on Tuesday, November 7,
2000, declaring the following results and such other matters as provided by law:
Measure L: Shall Ordinance No, 2448, increasing the special tax for emergency
paramedic services, be adopted?
Yes 9,566
No 12,834
Resolution No. 5830 - Zero -Emission Vehicle Program - On motion of
Councilmember George, seconded by Councilmember Haws, the City Council
unanimously adopted Resolution No. 5830, a resolution of the City Council of
the City of Redlands supporting the Zero -Emission Vehicle Program of the
California Air Resources Board,
Contract - Energy Management System - On motion of Councilmember
George, seconded by Councilmember Haws, the City Council unanimously
authorized award of a contract for the purchase and installation of the
interface into the existing energy management system to Honeywell, Inc.
Home and Building Control and authorized the Mayor and City Clerk to
execute the agreement on behalf of the City.
Emergency Services Academy - On motion of Councilmember George,
seconded by Councilmember Haws, the City Council unanimously approved
authorization to accept a School to Career CBO mini -grant award of $7,500.00
from the San Bernardino County Superintendent of Schools for continuation of
December 19, 2000
Page 3