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HomeMy WebLinkAboutAMX International Inc. - 2001-04-02DATE: CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/ REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH April 4, 2001 TO: AMX International Name 200 South Woodruff Street Idaho Falls, ID 83401 City, State, Zip ATTENTION: Hal R. Harvey, VP DEPARTMENT: REGARDING: Software License & Software Maintenance Agreement See Attached Action Agenda Item E-15 Date of Approval 4-2-01 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Connie Brockway City Clerk Attachments: Action Agenda Page _x CC: M. Dolder r Agreement 2x Bonds Insurance x RCA Deed Other Fire Name Department Name Department Name Department Name Department C. Mendoza x Risk Management Dept x 2x x RCA Agreement Insurance Other RCA Agreement Insurance Other RCA Agreement Insurance Other RCA Agreement Insurance Other x x Insurance (Telephone: 714-536-5227 ) 0 S --- M- jbLj)�A, -i-AA Council/Agency Meeting Held: 6--TL— 0 Deferred/Continued to: A roved ❑ Conditionally A proved ❑Denied - Cle s ignature Council Meeting Date: April 2, 2001 Department ID Number: FD 01-005 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, City Administrator PREPARED BY: MICHAEL P. DOLDER, Fire Chief/Information Systems Director SUBJECT: APPROVE THE AMX INTERNATIONAL, INC. BUDGET PLUS SOFTWARE LICENSE AND SOFTWARE MAINTENANCE AGREEMENTS FOR THE J.D. EDWARDS ENTERPRISE RESOURCE PLANNING SYSTEM Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Should the City purchase budgeting software from AMX International, Inc. as a component of the J.D. Edwards Enterprise Resource Planning System implementation? Funding Source: Sufficient funds remain in the Capital Software Account (30143002.86000) to purchase budgeting software, maintenance, installation, and training at a cost not to exceed $35,000. No additional funding is required. On October 18, 1999, the City Council appropriated $4,555,101 for Phase I of the J.D. Edwards Business System implementation, including supporting contracts and agreements. Additionally, the Fiscal Year 2000/2001 budget includes $1,211,323 in carryover funds from Phase I for funding additional software products such as AMX International, Inc. Budget Plus. Phase II funding of $1,459,630 is also included in the Fiscal Year 2000/2001 budget. Recommended Action: MOTION TO: 1. Approve and authorize the Mayor and City Clerk to execute the AMX INTERNATIONAL, INC. BUDGET PLUS Software License Agreement for an amount not to exceed $21,500, and further approve limited liability and indemnification obligations and approve a waiver of professional liability insurance. 2. Approve and authorize the Mayor and City Clerk to execute the AMX INTERNATIONAL, INC. BUDGET PLUS Software Maintenance Agreement for an amount not to exceed $3,870. Alternative Action(s): Do not approve the AMX INTERNATIONAL, INC. agreements providing budget software enhancements for the implementation of the J.D. Edwards Enterprise Resource Planning System. i *QUEST FOR COUNCIL JIN MEETING DATE: April 2, 2001 DEPARTMENT ID NUMBER: FD 01-005 Analysis: The City Council, at their October 18, 1999 meeting, approved $4,555,101 for Phase I of the J.D. Edwards Enterprise Resource Planning Business System Software implementation. Additionally, the City Council approved Phase I carryover of $1,211,323 and Phase II funding of $1,459,630 for the project including $35,000 for budget software enhancements. Over several months, staff evaluated this budget enhancement software, which is compatible with the J.D. Edwards Business System Software, and recommends AMX International, Inc. Budget Plus Software as the only viable budget software enhancement. AMX International, Inc. Budget Plus Software will provide the City with additional budget management and controls. The Software also provides the ability to perform budget checking during the accounts payable and journal entry process to guard against budget over runs. In order to meet the budget detail needs of the City, the additional AMX Budget Plus Software is required over and above the J.D. Edwards Software capabilities. The AMX International, Inc. Budget Plus Software License Agreement (Attachment 1) and the AMX International, Inc. Budget Plus Software Maintenance Agreement (Attachment 2) include provisions that meet City requirements and allow for the implementation of budget enhancement software for additional budget controls and the production of detailed and enhanced budget analysis and reports. The Certificate of Insurance has been reviewed and approved by the City Attorney (Attachment 3). Staff requests the City Council approve AMX International, Inc. Budget Plus Software License and Software Maintenance agreements for the J.D. Edwards Enterprise Resource Planning System. Environmental Status: None. Attachment(s): RCA Author: Dolder FD01 005 AMX International Budget2.doc -2- 4/2/01 3:14 PM STATEMENT OF ACTION OF THE CITY COUNCIL CITY OF HUNTINGTON BEACH ****** - Indicates Portions of the Meeting not included in the Statement of Action 3:30 P.M. - 5:00 P.M. — Room B-8 — A mourned Regular Meeting 5:00 P.M. — Room B-8 —.Regular Meeting — Study Session 7:00 P.M. — Council Chambers Civic Center, 2000 Main Street Huntington Beach, California 92648 Monday, April 2, 2001 The Adjourned Regular Meeting of the City Council and the Redevelopment Agency of the City of Huntington Beach was called to order at 3:30 p.m. CITY COUNCIUREDEVELOPMENT AGENCY ROLL CALL PRESENT: Boardman, Cook, Dettloff, Bauer (Green, Julien Houchen, Garofalo arrived 3:40 p.m.) ABSENT: None The Regular Meeting of the City Council and the Redevelopment Agency of the City of Huntington Beach reconvened at 7:00 p.m. CITY COUNCIUREDEVELOPMENT AGENCY ROLL CALL PRESENT: Green, Boardman, Cook, Julien Houchen, Garofalo, Dettloff, Bauer ABSENT: None (City Council) Approved Two Budget Plus Software Agreements between the City and the AMX International, Inc. for (1) Licensing and (2) Maintenance of the J.D. Edwards Enterprise Resource Planning System (600.10) —1. Approved as amended and authorized the Mayor and City Clerk to execute the AMX International Budget Plus Software License Agreement for an amount not to exceed $21,500 and further approved limited liability and indemnification obligations and waiver of professional liability insurance (per Late Communication received from the City Attorney's Office) ; and 2. Approved and authorized the Mayor and City Clerk to execute the AMX international Budget Plus Software Maintenance Agreement for an amount not to exceed $3,870. A motion was made by Garofalo, second Dettloff to approve as amended the above referenced agreements. The motion carried by the following roll call vote: AYES: Green, Boardman, Julien Houchen, Garofalo, Dettloff, Bauer NOES: None ABSTAIN: None ABSENT: Cook • The meeting adjourned to Monday, April 16, 2001, at 5:00 p.m., in Room B-8, Civic Center, 2000 Main Street, Huntington Beach, California. ATTEST: /s/ Connie Brockway City Clerk/Clerk STATE OF CALIFORNIA ) County of Orange ) ss: City of Huntington Beach ) /s/ Connie Brockway City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California /s/ Pam Julien Houchen Mayor I, Connie Brockway, the duly elected City Clerk of the City of Huntington Beach, California, do hereby certify that the above and foregoing is a true and correct Statement of Action of the City Council of said'City at their regular meeting held on April 2, 2001. Witness my hand and seal of the said City of Huntington Beach this 4th day of April, 2001. /s/ Connie Brockway City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California ATTACHMENT 1 AAMX_ E AMX INTERNATIONAL BUDGET PLUS SOFTWARE LICENSE AGREEMENT Customer City of Huntington Beach Address 2000 Main Street Huntington Beach, CA 92648 This Software License Agreement is entered into between AMX International, Inc., an Idaho corporation with its principal place of business in Idaho Falls, Idaho (hereinafter "AMX' and the Customer whose name and address is set forth above. 1. DEFINITIONS. For purposes of this Agreement, the following terms shall mean: Accessory Products: Software delivered with the Licensed Products but which require Customer to agree to a separate license agreement. Affiliate(s): Those entities under common control and ownership of the entity identified as Customer above. Common control and ownership is defined as the direct or beneficial ownership of a voting interest of at least fifty percent (50%) of the issued and outstanding voting equity securities of the company, or the right or power, directly or indirectly, to elect a majority of the Board of Directors, or the right or power to control the executive management. Confidential Information: The a) Licensed Products, b) Developed Software and c) other information of the parties when it is presented in printed, written, graphic, photographic or other tangible form (including information received, stored or transmitted electronically) and marked as "Confidential," "Proprietary," or "Restricted" by Discloser. Confidential Information also includes information of the parties, when presented in oral form, that is recorded as written notes or memoranda and which are marked confidential and provided to Recipient within thirty days after the date of disclosure. Customer: The entity identified as the Customer on the first page of this Agreement and its Affiliate(s). Derived Software: Software programs or modifications to the Software created through the use of a development tool licensed hereunder and developed by Customer, its employees or third party agents (not AMX). Designated Processor: The computer processing unit(s) (CPUs) or servers identified in Exhibit A to this Agreement on which the Licensed Software is installed or deployed by Customer. Developed Software: Software programs or modifications to the Licensed Products developed by AMX for Customer pursuant to the Agreement for Professional Services (or other similar engagement) including source (if any) and object code for such Developed Software and any related documentation. AMX shall own all right, title and interest in any Developed Software. Discloser: The party disclosing Confidential Information. Licensed Product(s): The computer programming code, including object code and any source code that may be provided for the items identified as the Licensed Products in Exhibit A to this Agreement; any Software Updates issued from time to time by AMX in its sole discretion, and the Published Product Specifications. The Licensed Products to not include Accessory Products. Licensed Users: Customer and any other users that are specifically licensed to access and use the Licensed Products in accordance with the terms of this Agreement and its Exhibits. Published Product Specifications: All on-line help material included with the Licensed Products and all user, technical and training guides (in whatever media) associated with the Licensed Products as they may exist from time to time. Recipient: The party receiving Confidential Information. Software: The Licensed Products and Developed Software. Software Updates: Improvements and changes to the Licensed Products that AMX may make from time to time in its sole discretion that do not constitute a new version of the Licensed Products. Supported Platforms: The hardware and software platforms which are supported by AMX for specific release of the Licensed Products as documented from time to time in the Published Product Specifications. 2. LICENSE GRANT. In consideration of the License Fee paid by Customer to AMX as set forth in Exhibit B, and for Customer's other promises contained in this Agreement, AMX grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Agreement, a non-exclusive and non- transferable indefinite limited license to use the Licensed Products indicated In Exhibit A annexed hereto. AMX represents that it possesses all rights and interests in the licensed Products necessary to enter into this Agreement. AMX further grants to Customer the right to create and utilize Derived Software without the consent of AMX. Customer shall own all right, title and interest in and to any Derived Software, except that AMX shall retain sole ownership of such portions of the Derived Software that contain part or all of the Software. Use of such Software included in the Derived Software shall remain subject to the provisions of this Agreement. Exhibit: One or more documents by which Customer licenses the 3. LICENSE USE. (A) Customer shall use the Licensed Products licensed products and orders services and/or maintenance and on the Designated Processor(s) identified in Exhibit A. Customer which shall be incorporated into this Agreement. shall not copy the Licensed Products or allow their use by others without the written permission of AMX except for Customer's License Fee: The Fee in Exhibit B to this Agreement setting forth backup, archival, and in-house disaster recovery purposes. the sum to be paid by Customer to AMX for the licensed use of the Customer shall cease using any such disaster recovery copies upon Licensed Products. restoration of the Customer's operating systems. (B) Customer may also copy the Software as reasonably necessary to accommodate the number of Licensed Users licensed AMX International, Inc. Budget Plus Software License Agreement Page 1 of 8 City of Huntington Beach Rev. 3 (03/26/01) • �J under this Agreement. Customer will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. The Licensed Products may be used only by Customer, and not for the benefit of any third party, including but not limited to, commercial timesharing, rental or sharing arrangements. The Licensed Products may be used only in the country in which they are first installed and may only be moved to another country with the prior written permission of AMX. (C) Customer shall not: (i) Reverse engineer any part of the Licensed Products; (ii) Distribute, sell or otherwise transfer any part of the Licensed Products; or (III) Remove the copyright, trade secret or other proprietary protection legends or notices which appear on or in the Licensed Products. (D) Customer shall notify AMX in writing of any model change to a Designated Processor prior to such change taking place. 4. Customer's CHOICE OF DESIGNATED PROCESSOR. Sizing is the process of estimating the amount of computer equipment and types of hardware and software features needed to execute the Licensed Products on the Designated Processor under particular circumstances to achieve certain performance goals. AMX will perform a sizing only upon Customer's request and using Customer's own data and estimates. Customer shall have all responsibility for the choice of the Designated Processor, its features, and the use of the Licensed Products to achieve any performance goals. WITH RESPECT TO THIS SECTION, AMX MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AMX ALSO MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR OR AS TO THE PERFORMANCE OF THE LICENSED PRODUCTS ON THE DESIGNATED PROCESSOR TO THE EXTENT SUCH PERFORMANCE IS RELATED TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR. S. THIRD PARTY ACCESS. AMX agrees that Customer may allow its Customers, vendors, or other entities in a similar relationship to Customer to access the Licensed Products and use the same for the purpose of conducting inquiries and other limited activities so long as Customer can demonstrate the following: (a) None of the aforementioned entities, at any time, has access to AMX source code; (b) Their access is restricted to screen access and to those specific functions they are required to perform; (c) Under no circumstances will they use the Software to operate their own businesses; (d) The provision of the AMX software or services is not the primary purpose, value, performance, or cost of the relationship between Customer and the entity; (e) The entity does not compete with AMX; (f) Such access is not a violation of the Export Controls section of this Agreement; (g) Each such user shall be licensed as a Licensed User under this Agreement. In consideration of the grant of license under this Agreement by AMX, Customer agrees to take all necessary steps to Insure that the Licensed Products and the trade secret, proprietary and/or Confidential Information contained within the Licensed Products are not disclosed to any person other than the entities described above who have a need for access and use as provided herein. Customer further agrees to be responsible for all the acts and omissions of the third parties who are granted access under the Section as if they were Customer's own acts or omissions, and Customer agrees to indemnify AMX against any damages it incurs resulting from such access. 6. AUDIT. Upon request by AMX, Customer shall furnish to AMX any such information requested by AMX to verify the compliance by Customer with the terms of this Agreement. Any such audit shall be conducted upon reasonable notice at Customer's place of business during regular business hours. 7. PROPRIETARY RIGHTS. (A) The Licensed Products provided under this Agreement have substantial monetary value and are proprietary to AMX. The Licensed Products may include copyrighted works and trade secrets, and may include Licensed Products for which a patent has been applied for or Issued. The Licensed Products may also include copyrighted and proprietary material of third parties for which AMX has been granted a right to use and distribute. AMX and any third party suppliers shall retain ownership of all rights, title, and interest to its Licensed Products and all versions. All enhancements and modifications made by AMX which are provided under the warranty or Software Update provisions of this Agreement will remain proprietary to AMX and are considered a part of the Licensed Products under this Agreement. The Licensed Products bear a copyright legend which in no way reduces trade secret, proprietary, and/or confidential nature of the Licensed Products. Customer agrees that the software use granted to it under this license is a permissive use, and that Customer shall not acquire any right, title, or Interest in and to the software as it currently exists or as may be modified by AMX from time to time. (B) Customer shall notify AMX immediately of any unauthorized possession, use, or knowledge of any Licensed Products of which Customer is aware. Customer shall promptly. furnish AMX with full details of such situations and assist in preventing any recurrence and cooperate at AMX's expense In any litigation or other proceedings reasonably necessary to protect the rights of AMX. (C) THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE IS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS OR COMPLEMENTARY PRODUCTS. The function of the software protection procedures is documented in AMX's Published Product Specification. AMX represents that all software protection procedures are designed solely to limit unauthorized access to the Licensed Products. Further, If the software protection procedures have been enabled when there is no unauthorized use by Customer, AMX will, on a highest priority basis, assist Customer in returning to normal operations at no charge to Customer. 8. MUTUAL NONDISCLOSURE. Pursuant to this Agreement, each party may, from time to time, furnish the other party with certain Confidential Information. Recipient agrees to not disclose the Confidential Information to any third party without the prior written consent of the Discloser. The provisions of this paragraph shall not apply to any Confidential Information that: (A) Was in the public domain at the time it was disclosed by Discloser; (B) It entered the public domain through no fault of Recipient subsequent to the time originally disclosed by Discloser; (C) It was in Recipient's possessionfree of any obligation of confidence at the time it was disclosed by Discloser; (D) It was independently developed by Recipient; (E) Was disclosed in response to a validly issued subpoena or other court or governmental agency order, provided that Discloser has been Informed of such order or request and has made a reasonable but unsuccessful effort to secure an appropriate protective order prior to the response. 9. WARRANTIES. Licensed Products: AMX warrants that for a period of six (6) months following the date of delivery of the Licensed Products to Customer's first designated site, the Licensed Products will perform substantially in accordance with the AMX International, Inc. Budget Plus Software License Agreement Page 2 of 8 City of Huntington Beach Rev. 3 (03/26/01) • • functionality indicated in the AMX Published Product Specifications, provided that: (A) the Licensed Products have not been modified, changed, or altered by anyone other than AMX unless authorized by AMX in writing; (B) there has been no change in the computer equipment on which AMX installed the Licensed Products unless authorized by AMX in writing; (C) the computer equipment is in good operating order and is installed in a suitable operating environment; (D) the error or defect was not caused by Customer or its agents, servants, employees, or contractors; (E) Customer promptly notified AMX of the error or defect after it was discovered; and (F) all fees due to AMX have been paid. Customer accepts sole responsibility for: (i) the use of the Licensed Products to achieve Customer's intended results, (ii) the results obtained from The Licensed Products, and (III) any omissions, inadequacies, or problems in the written specifications for the Licensed Products set forth in Exhibit B to this Agreement. 10. WARRANTY EXCLUSION. (A) THIS AGREEMENT IS A LICENSE AND IS NOT A SALE OF GOODS. (B) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THAT THE LICENSED PRODUCTS WILL PERFORM ERROR FREE IN ALL SITUATIONS. 11. EXCLUSIVE REMEDIES. For any breach of warranties contained in Section 9 of this Agreement, Customer's exclusive remedy shall be as follows: Customer shall have six (6) months following delivery of the Licensed Products to Customer's first designated site to verify that the Licensed Products substantially conform in functionality to the AMX Published Product Specifications. Customer shall provide written notice of any material nonconformance to AMX within this six (6) month period. Such notice shall be in sufficient detail to allow AMX to duplicate the nonconformance. AMX shall, at no additional charge, correct such nonconformance or provide a mutually acceptable plan for correction by sixty (60) days following the receipt of Customer's notice by AMX. Should AMX fail to provide such correction or mutually acceptable plan by such date, Customer's sole and exclusive remedy shall be to terminate this Agreement as a default incapable of cure by written notice in accordance with the termination provisions of this agreement. Customer shall be entitled to receive a refund of the License Fees paid. Such notice of termination must be received by AMX within ten (10) days following the date for correction or plan for correction. 12. INDEMNITIES. (A) AMX agrees to defend, indemnify, and hold harmless by counsel of its own selection, or at its option to settle any claim, suit, or proceeding brought against Customer on the issue of infringement of any United States copyright or patent by the Licensed Products as supplied by AMX to Customer, provided Customer notifies AMX promptly in writing of any such claim, suit, or proceeding and gives AMX full information and assistance in relation to it. AMX shall not be liable for any costs, expenses, and fees incurred by Customer without the written authorization of AMX. (B) AMX further agrees that if Customer is prevented from using the Licensed Product(s) due to an actual or claimed infringement of any patent, copyright or other intellectual property right, then at AMX's option, AMX shall promptly either: (1) procure for Customer, at AMX's expense, the right to continue to use the Licensed Product(s): (ii) replace or modify the Licensed Product(s), at AMX's expense, so that the Licensed Product(s) become non - infringing; or (iii) terminate this Agreement and return Customer's license fees for the infringing Licensed Product(s) in the event that neither (i) or (ii) are reasonably feasible. (C) SUBSECTIONS (A) AND (B) OF THIS SECTION SHALL CONSTITUTE AMX'S ENTIRE WARRANTY BY AMX AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO COPYRIGHT OR PATENT INFRINGEMENT. 13. LIMITED LIABILITY. EXCEPT FOR FAILURE TO COMPLY WITH THE PROPRIETARY RIGHTS PROVISION CONTAINED IN THIS AGREEMENT: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT. (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS, OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITIY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 14. ARBITRATION. All disputes involving this Agreement shall be settled exclusively by arbitration. The arbitration shall be held in the County of Orange, State of California. It shall be conducted under the auspices of and by the rules of the American Arbitration Association. Discovery shall be allowed at the discretion of the arbitrator. The decision of the arbitrator shall be final and binding upon the parties. The parties consent that any notice, motion, application or any paper concerning the arbitration may be served by certified mail, return receipt requested, or by personal service provided it allows reasonable time for appearance. The arbitration proceedings must be begun within one year after the claim arises. Failure to begin arbitration proceedings within that period shall constitute an absolute bar to the institution of any proceedings on that claim and a waiver of that claim. 15. TERM AND TERMINATION. This Agreement shall be effective on the date of execution, hereof and shall continue thereafter until terminated as follows: (A) If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default falls to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate.this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Licensed Products shall be immediately revoked and all Licensed Products and supporting materials will be returned to AMX or destroyed and an affidavit supplied to AMX certifying destruction. Confidentiality obligations shall survive this Agreement. (B) Customer may terminate this Agreement at any time, with or without cause, by providing AMX with a written notice not less than thirty (30) days prior to the date of termination. (C) In the event an Affiliate ceases to comply with the definition of Affiliate herein, AMX may, at its option, terminate this Agreement between AMX and the former Affiliate according to the termination provisions hereof. AMX International, Inc. Budget Plus Software License Agreement Page 3 of 8 City of Huntington Beach Rev. 3 (03/26/01) • • (D) Immediately by AMX if Customer breaches paragraphs 3, 5, 7, 8 or 17 of this Agreement. (E) Upon termination all rights to use the Licensed Software shall immediately cease, and all Licensed Products and supporting materials will be returned to AMX or destroyed and an affidavit supplied by AMX certifying destruction. Confidentiality provisions shall survive this Agreement. 16. PAYMENT. (A) In consideration for the License granted herein, Customer will pay to AMX the License Fees and related charges set forth in Exhibit B attached to this Agreement, which Exhibit may be modified from time to time, as mutually agreed to in writing by AMX and Customer, Customer agrees to pay License Fees and applicable sales tax upon the executing of this Agreement and any Exhibits attached to this Agreement. (B) In addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, property, excise, value added and gross receipts levied on this Agreement or the Licensed Products, except taxes based on AMX's net income. (C) All payments made under this Agreement are nonrefundable except as otherwise specifically provided otherwise in this Agreement. 17. EXPORT CONTROL. Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received under this Agreement except in full compliance with all United States and other applicable acts, laws, and regulations. Customer shall indemnify, defend and hold harmless AMX from any loss, liability, cost or expense (including reasonable legal fees) related to any action arising from Customer's failure to comply with this section. 18. GENERAL. (A) The waiver of one breach under this Agreement shall not constitute the waiver of any other or subsequent breach. (B) All notices shall be in writing and sent by certified mail, postage prepaid, return receipt requested to the address written below or such other address as notified to the other party and such notice shall be deemed to be made on the fifth (St') day after such mailing. AMX International 200 South Woodruff Idaho Falls, ID 83401 Attn: Hal R. Harvey, VP Finance & Administration City of Huntington Beach 2000 Main St., 5"' Floor Huntington Beach, CA 92648 Attn: Michael P. Dolder, Fire Chief (C) All disputes involving this Agreement, except actions arising under the patent and copyright provision of the U.S. Code or other applicable federal regulations, shall be determined under the law of the State of California. No action, regardless of form arising out of this Agreement may be brought by either party more than one (1) year after the claiming party knew or should have known of the cause of arbitration or action. (D) Except as provided in this subsection, this Agreement may not be assigned by either party and any attempted assignment which does not adhere to these provisions shall be void. However, either party may, upon written notice to the other party, assign this Agreement to any affiliate. AMX may assign this Agreement in the event of the sale of all or substantially all of its assets or equity. (E) If any provision of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions. (F) The parties hereto are independent contractors and neither party nor its employees, directors, agents, or consultants shall hold itself out to be or allow itself to be considered as an agent or employee of the other party. This Agreement, including Its Exhibits annexed hereto, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to its subject matter. This Agreement shall not be effective until executed by Customer and accepted by an authorized representative of AMX. 19. HOLD HARMLESS: Unless as otherwise provided in this Agreement, AMX shall protect, defend, indemnify, save, and hold harmless Customer, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation, costs and fees of litigation of every nature) arising out of or in connection with AMX's performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by its officers, agents, or employees except such loss or damage which is caused by the sole negligence or willful misconduct of Customer. Customer shall be reimbursed by AMX for all costs and attorney's fees incurred by Customer in enforcing this obligation. 20. WORKERS' COMPENSATION INSURANCE: Pursuant to California Labor Code Section 1861, AMX acknowledges awareness of Section 3700 et. seq. of said code, which requires every employer to be insured against liability for workers compensation; AMX covenants that it will comply with such provisions prior to commencing performance of the work hereunder; and shall indemnify, defend and hold harmless Customer from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, Including attorney's fees and costs presented, brought, or recovered against Customer, for or on account of any liability under any.of said acts which may be incurred by reason of any work to be performed by AMX under this Agreement. AMX shall maintain workers compensation insurance in an amount of not less than one hundred thousand dollars ($100,000.00), bodily Injury by accident, each occurrence, one hundred thousand dollars ($100,000.00), bodily injury by disease, each employee, two hundred fifty thousand dollars ($250,000.00), bodily injury by disease, policy limit. AMX shall require all subcontractors to provide such workers' compensation insurance for all subcontractor employees. AMX shall furnish to Customer a certificate of waiver of subrogation under the terms of the workers compensation insurance and AMX shall similarly require all subcontractors to waive subrogation. 21. GENERAL LIABILITY INSURANCE: In addition to the workers' compensation insurance and AMX's covenant to Indemnify Customer, AMX shall obtain and furnish to Customer certificates evidencing a policy of general public liability insurance, Including motor vehicle coverage covering the Agreement. The policy shall indemnify AMX, Its officers, agents and employees while acting within the scope of their duties, against any and all claims arising out of or in connection with the Agreement, and shall provide coverage in not less than the following amount: Combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of one million dollars per occurrence ($1,000,000.00). If coverage Is provided under a form that includes a designated AMX International, Inc. Budget Plus Software License Agreement Page 4 of 8 City of Huntington Beach Rev. 3 (03/26/O1) r1 �J • general aggregate limit, the aggregate limit must be no less than one million dollars ($1,000,000.00) for this Agreement. The policy shall name Customer, its agents, its officers, employees and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Agreement shall be deemed excess coverage and that AMX's insurance shall be primary. Under no circumstances shall the above mentioned insurance contain a self insured retention, or a "deductible" for any other similar form of limitation on the required coverage. 22. PROFESSIONAL LIABILITY INSURANCE: AMX shall furnish a professional liability insurance policy covering the work performed by it hereunder. Said policy shall provide coverage for AMX's professional liability in an amount not less than one million dollars ($1,000,000.00) per occurrence and in the aggregate. A claims made policy shall be acceptable if the policy further provides that: (A) The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). (B) AMX will make every effort to maintain similar insurance during the required extended period of coverage following project completion, including the requirement of adding all Additional Insureds. (C) If insurance is terminated for any reason, AMX agrees to purchase an extended reporting provision of at least two years to report claims arising from work performed in connection with this Agreement. (D) The reporting of circumstances or incidents that might give rise to future claims. 23. CERTIFICATES OF INSURANCE: Prior to commencing performance of the work hereunder, AMX shall furnish to Customer certificates of Insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: (A) Provide the name and policy number of each carrier and policy; (B) State that the policy is currently in force; and (C) Promise that such policies shall not be suspended, voided or cancelled by AMX, reduced in coverage or in limits except after thirty (30) days prior written notice; however, ten (10) days prior to written notice in the event of cancellation for non payment of premium. AMX shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by Customer. The requirements for carrying the foregoing insurance coverages shall not derogate from the provisions for Indemnification of Customer by AMX under this Agreement. Customer or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance be available for inspection. AMX shall pay, in a prompt and timely manner, the premiums on all Insurance hereinabove required. 24. This Software License Agreement is executed simultaneously with an accompanying Software Maintenance Agreement of even date herewith. Signatures on next page AMX International, Inc. Budget Plus Software License Agreement Page 5 of 8 City of Huntington Beach Rev. 3 (03/26/01) This page is intentionally blank excepting as to the effective date, and authorizing signatures below. Accepted by AMX and effective as of DATE: 01— 07- - 20D1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. AMX International, Inc. . By: . jl-i�� y Price (print name) ITS: (circle one) Chalrman Preside vice President City of Huntington Beach, a municipal corporation of the State of California N4M 4adin, Mayo ATTEST`�'�17!i AND City Clerk By: e � C Hal Harvey (print name) ITS: (cftle one) Secreta Chief Financial Officer Asst. Secretary — Treasurer REVIEWED AND APPROVED: l ,D- C' Administrator APPROVED S TO�FORM: ity Attorney 3 11© INITIATED AND APPROVED: Fire Chief/Information Systems Director AMX International, Inc. Budget Plus Software License Agreement Page 6 of 8 City of Huntington Beach Rev. 3 (03/26/01) EXHIBIT A - LICENSED PRODUCTS AND DESIGNATED PROCESSORS LICENSED PRODUCTS: Budget Plus-]DE-B73.3.3 OneWorld XE DESIGNATED PROCESSORS: Model No. Serial No. AMX International, Inc. Budget Plus Software License Agreement Page 7 of 8 City of Huntington Beach Rev. 3 (03/26/01) • • EXHIBIT B — LICENSE FEES AND OTHER CHARGES I I Budoet Plus-JDE-B73.3.3 OneWorld XE 1 20.000.00 1 Total $ 23,600.00 A 50 % deposit of the License Fees shall be due thirty (30) days from execution of the Agreement and receipt of invoice. The remaining balance shall be due thirty (30) days from receipt of final invoice. *All Amounts are in U.S. Dollars AMX International, Inc. Budget Plus Software Ucense Agreement Page 8 of 8 City of Huntington Beach Rev. 3 (03/26/01) • • ATTACHMENT #2 j AAMN AMX INTERNATIONAL BUDGET PLUS SOFTWARE MAINTENANCE AGREEMENT Customer City of Huntington Beach Address 2000 Main Street Huntington Beach, CA 92648 This Software Maintenance Agreement is made and entered into on this 2Npday of "IL. 2001 between AMX International, Inc., an Idaho corporation with its principal place of business in Idaho Falls, Idaho (hereinafter AMX) and the above identified Customer. This Agreement is executed with and incorporated by reference into that certain Software License Agreement dated 04 ^ 02— ?00 j between AMX and Customer. AMX agrees to provide to Customer, and Customer accepts, subject to the terms and conditions of this Agreement, the maintenance services indicated below: Start Date: Upon Delivery of Licensed Product by AMX and Payment of Maintenance Fees by Customer 1. MAINTENANCE SERVICES. In accordance with the terms of this Agreement, AMX will furnish the following maintenance service for only the Licensed Products under the Software License Agreement and its Exhibits licensed for use on a specific Designated Processor for which AMX has expressly agreed to offer a warranty under the Software License Agreement: (A) AMX will correct any material coding errors found by Customer in the Licensed Products which are reasonably capable of cor- rection and which affect the use of the Licensed Products, provided that: Customer notifies AMX promptly following the discovery of any such error; the Licensed Products have not been modified by any party other than AMX; and the error was not caused by Customer, any third party, or hardware or operating system failure or deficiency. (B) AMX may provide in its discretion Software Updates that do not constitute new versions of the Licensed Products. (C) AMX shall provide Customer with reasonable access by telephone to AMX's technical staff for consultation in the use and operation of the Licensed Products. (D) Maintenance services do not include on -site training, installation, consultation, and software modification and customization services. AMX will make these services available to Customer at its then -prevailing fees for such services. Unless cancelled by either party by written notice no less than thirty (30) days prior to the end of the Period of Coverage, the Period of Coverage for the maintenance services shall automatically extend from year to year at AMX's then -current prices. Customer is responsible for the installation of upgrades from one release or version to the next of the Licensed Products. 2. WARRANTY. AMX warrants that it will use its best efforts to perform the maintenance services in a timely and workmanlike manner, provided that: (A) The Licensed Products have not been modified, changed, or altered by anyone other than AMX; (B) The operating environment, including both hardware and systems software, meets AMX's recommended specifications; (C) The computer hardware is in good operational order and is installed in a suitable operating environment; (D) The need for service is not a result of actions or omissions by CUSTOMER or its agents, servants, employees, or contractors; (E) Customer promptly notifies AMX of its need for service; and (F) All fees due to AMX have been paid. 3. WARRANTY DISCLAIMER. (A) THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS. (B) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE SERVICES TO BE PROVIDED BY AMX UNDER IT, OR ANY LICENSED PRODUCTS PROVIDED BY AMX UNDER IT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 4. EXCLUSIVE REMEDY. For any breach of warranty under Section 3 of this Agreement, Customer's sole and exclusive remedy and AMX's only obligation under this warranty is to redo the maintenance services until they are performed in a good and workmanlike manner. In the event that these maintenance services cannot be provided within a reasonable time after notification, Customer's sole and exclusive remedy is to terminate this Agreement upon written notice to AMX and to receive a refund of any fees paid for the period beginning on the date the problem requiring correction was reported to AMX. S. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL AMX BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR DAMAGE TO CUSTOMER IN AN AMOUNT THAT COLLECTIVELY EXCEEDS THE ANNUAL MAINTENANCE FEE. AMX SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER SUS- TAINED AS A RESULT OF ANY BREACH OF WARRANTY OR OF THIS AGREEMENT BY AMX, AMX'S NEGLIGENCE OR GROSS NEGLIGENCE, OR OTHERWISE OR FOR .ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF AMX HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM. Customer shall not assert any claims against AMX based on theories of negligence, gross negligence, strict liability, fraud, or misrepresentation. 6. TERMINATION. Customer may terminate this Agreement at any time, with or without cause, by providing AMX with a written notice not less than thirty (30) days prior to the date of termination. If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination. If such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, all warranties hereunder shall be void and any maintenance services shall be provided only on a time and materials basis. Reinstatement of maintenance services after a lapse in coverage is subject to AMX's acceptance AMX International, Inc. Budget Plus Software Maintenance Agreement Page 1 of 3 City of Huntington Beach Rev. 3 (03/26/01) • • and reinstatement fee. Confidentiality obligations shall survive this agreement. 7. PAYMENT. (A) Customer will pay AMX the fees set forth on Exhibit A to this Agreement. The fees shall be paid annually with the first payment due upon delivery of the Licensed Product. If Customer fails to remit the fees set forth on Exhibit A within thirty (30) days after the delivery of the Licensed Product, AMX will have no duty to provide the maintenance services specified under this Agreement. Fees for reinstatement of lapsed maintenance services shall be charged in accordance with AMX's policy for reinstatement fees in effect on the date of such reinstatement. All payments made under this Agreement are nonrefundable except as provided in Section 4, Exclusive Remedies. (B) In addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, property, excise, value added and gross receipts levied on this Agreement except taxes based on AMX's net income. (C) Customer agrees to pay for all uncontested amounts due under this Agreement within thirty (30) days after the date of delivery of the Licensed Products. Customer shall have thirty (30) days after the delivery date of the Licensed Products to contest in good faith the amounts and items charged. Past due uncontested amounts will bear interest of one and one-half percent (1 1/2%) per month from the due date or the highest rate permitted by law if less. Accepted by AMX and effective as of DATE: 04— 0 2 — 2001 (D) Training, software installation assistance, set-up, consulting, custom design, and computer programming services are provided on a time and materials basis under separate agreement at AMX's then -current standard hourly rate and shall be in addition to any other charges provided for in this Agreement. S. PERIOD OF COVERAGE. The twelve (12) consecutive month time period during which the Maintenance services shall be available under this Agreement. The initial Period of Coverage begins upon delivery of the Licensed Product and receipt of payment of said Maintenance Fees. Additional Period of Coverage shall begin after the initial Period of Coverage and upon receipt of payment of said Maintenance Fees. 9. ENTIRE AGREEMENT: This Agreement, including its Exhibits, represents the entire agreement between the parties related to the subject matter hereto, and supersedes all prior communications, negotiations or agreements regarding the same, whether written or oral. This Agreement shall not be effective until executed by Customer and accepted by an authorized representative of AMX. 10. This Software Maintenance Agreement is executed simultaneously with an accompanying Software License Agreement of even date herewith. Paragraphs 19, 20, 21, and 23 of the companion Software License Agreement are incorporated by reference into and are made a part of this Software Maintenance Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. AMX International, Inc. By: /Jay Price (print name) ITS: (circle one) Chairman residen ice President AND By:� rw Hal Harvey (print name) ITS: (circle one) Secreta Chief Financial Office Asst. Secretary — Treasurer REVIEWED AND APPROVED: un_ City Administrator City of Huntington Beach, a municipal corporation of the State of California Mayor ATTESTi O City —Clerk APPROVED AS �0, F0� / 2� a City Attorney INITIATED AND ;71, D;n� i��,l,�,��//// lX Fire Chief/Information Systems Director AMX International, Inc. Budget Plus Software Maintenance Agreement Page 2 of 3 City of Huntington Beach Rev. 3 (03/26/01) SCHEDULE A — MAINTENANCE FEES AND OTHER COSTS Total $ 3,600.00 100% of Maintenance Fees are due thirty (30) days from delivery of Licensed Products and receipt of invoice. *All Amounts are in U.S. dollars AMX International, Inc. Budget Plus Software Maintenance Agreement Page 3 of 3 City of Huntington Beach Rev. 3 (03/26/O1) ATTACHMENT 3 27-03-01 09:39 From -Fred A- An&Co. 2083210101 0 T-477 P.001/001 F-928 •S: �'c: t ACO�D „'Ct:RKr.. �'wx iMt•'%:k��� DAZE (MIND D1YY Y: x,')���••,,tfa�r:,tt ). 3127/01 ; THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE FRED A. MORETON Ik CO. ID HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXPEND OR P. 0. Box 191WA ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE Belse, 10 83719 COMPANY (200) 321.9300 A ST. PAUL FIRE 8 MARINE INBUNIeo COMPANY ANK International Inc. B FREMONT INDUS INOEM IIORK COIF PO Box 50308 COMPANY Idaho Fells, 10 83405 C COMPANY D .M •k:iC•' ><:g �(:jt 'u' i'Riit;K ,iR =x '%• BiLN .'t� •M:YfY, '.p. ygyyy'iRS$r xr x'>ti''igR: ).0 1907 �wx R'fi<%• Rti 'ix•x• aw•p� 1fLL �y ,�( ,{< i-xy t'f 'ii ' xyGx;y•rix' iK i ", g;p '• :7�fxflx :�%�%.%, iFS:g.. i!'.R ,N '�:' 1;><:x xie;tY . ,8 n . lC,:: 'iV.r i .:%.%i 'd .:t'k : •K# . t%i. .o ..... ...,.......:1.8:i��Ri:iC�wwx.xxx.�a1:$:�...i�iN� f�. iA•R'LiiV;�liY�w ,u. e���.w ..�i`.S:Y �A'!iVRft4i�L�kOi�wx. ..,w�..,......i�..$S:`i."S3Ji` `.7Y`.EB:. .�x.�t�RA�fVic'RRS�R•i �x•�stVf%uww.etf�. �:3:t.,��:fl?. THIS 19 TO CERTIFY THAT THEPOLICIES OF INSLRMCELISYE D BELOW HAVE BEEN ISSUED TO THE INSURED NAMEDABOVE FOR THE POLICYPEMOD INDICATED,NOTWITHSTANDINGANYREOUIREME NT,TERMORCONDITIONOFANYCONTRACTOROTHERDOCUMENTWITHRESPECTTO WHICHTHIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED 9Y THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. W LTN TYPE OF INSURANCE POLICY NWMOEN POLICY EFFECTIVE DATE (MIMI001YY) POLICYFXPIRATION DATE PAM10WM LIMITS A OOMMALUABIJ" COMMEACIALGANERALLIABILITY CLAIMS MADE a TED8700151 7117100 7117/01 GENERAL AGGREGATE 13 2,000500 x :u PRODUCTS-COMP/OP AGO 13 21000,000 DIAL AL A ADV 191JRY IS 1.000.000 EACH OCCUf R9NCf $ 1 000,000 OWNEFrS S CONTRACTOR'S PROT FIRE DAMAGE (Any one Ilre) S 500,000 MED EXP (Any one person) S 10.000 A ALTroMOSLEUAMILI Y TED8700151 7117100 7111101 COMBINED SINGLE LIMIT ; ANY AUTO 1.000 000 ALL OWNED AUTOS SCHEDIA-ED AUTOS APPROVED AS TO F RM: BODILY INJURY (Per pww) = HIRED AUTOS NON -OWNED ALTOS GAIL HUTTON, City By: Robert I Wheele Special Counsel itttomey 1 X X BODILY INJURY ('er accident) e PROPERTY DAMAGE $ OMAOELIABLITY 'y� AUTO ONLY • EA ACCIDENT S ANY AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT S AGGREGATE S A EXCEBB LIABILITY TEM700151 7117100 7117101 EACM OCC $ 2.000.000 AGGREGATE ; 2,000 000 X ILA FORM = OTHER THAN UMBRELLA POEM B WORIEIISCOMPENSATIONAND EMPLOYEB91 LIABILITY JY62972B7 A o FF ::;. •::; :�_::%:: :;:•. EL EACH ACCIDENT 5:;:; 1,000,000 EL DISEIISEt,ouCY LIMIT IS 1,000,000 THB PROPRIETOR/ iNCL PARTNERS/EXECUTIVE OFFICERS ARE rA EXCL EL DISEASE EA EMPLOYEE I S 1 000 S00 OTHER A Comerolal Property TE06401026 7117100 7117101 $8661000 DESCRIPTIONOFOPelArMsiLOCATIONW MIGLJESiSPECL4LITEMS Faxed to: 71e-374-1551 Additional Insured: City of Huntington Beach i<a•Aa. .: t: x• .x.y• ;o K•'. jf'' �S x�xraa ai:i«: '• r.:if::�{ ft..K.. ;x!7': ` :< % .`YR si �.%..,.�{.)) tt}}���� Ni^W . }l;; Rit�Y:Ox::F:psi4 itliVSR•R.R.x.x ..sl:yR}-y ;+,� K.1.`:R kJ? #°R!8!!04l�'�E1il: , ..... is°Nl15.':.:i21�'x•R§iRi'k'ktl:d:S:V:L%a<ad..:o:a�' .�.:1�..,:R.'fr' �':lt:$:?!fi"i.� SYRtlr '�.;�'t' !'i'ki<xa: :y: % . V.tRt> x:. r, .iti ' • .r k:x; , s,: xkxK:fi'' r;; p : xtt.t. iF : :: to ' itlRh R N.g �t g 'tFt.. ,R '{��. {�ANiM ; . Y �...... ����.�`.1w�w��S.'k:R:ff.'i4CSli i�.�itfRiki�liiliCiA�ii�ROiWbc ,tl:ti'acwx��.<.>t><f.`+i BHOILD ANY OF 1HE ABOVE DESORIBE0 POLKWB BE CANCOLLED SWORE THE City of Huntington Beach MWSIA11oN DATE THEREOF. THE IBSWNQ COMPANY WLL ERONONG"AL Attention: Carolyn Struck 30 DAYS WRITTEN NOTICE TO TILE CENTIMATE HOLDBII NAMM TO THE LEFT. 2000 Main Street Huntington Beech, CA 92648 AUIINOROD REPRESENTATIVE ft7e f>e>,v:e �` ue:.f: Ak�(eL `A$�?ii:ti$: ^:nw�. } y� *':R'f�;Mx!iM>t'i4s:,�R<Y ky x�xlif�'"•i�'e:t�$:,. :�a i� .:: i9a::R: yff(( /f((pii iijj�gtC;`•}QQ.� '%'pit ii KNRtx.>: %o:...{�..:%.t ftl'r.xxi:b:x'�::< ' :i<::1k�!t �it'}'iyi' . 9x•k.� :t;kSY:9:!kR.R.R:3T:F:tt•R.k+x:f:d:Exl%:fl%�%�%.%O:<.%.%. R••. ax.k:•'.`li: •.•.^e3 "^ti, r-x•:<,oxx+,xx+<k: Vs. f� }^,,'s<:� 4x!f:81 < .•yytx�!y�`I: y o'�{ ` M j{�yp!]p� i x x�:%��:fl: .�I':< i?. 'a:hiN;kY; . .R ...'.Y .. i$.. •�s]Wti�t. RECEIVED • MID AME A COUNCIL AQMOOC Q A (` CONNIE MUMMY, CITY CLERK LAMAD ITEIrII F CITY OF HUNTINGTON BEACH Inter -Department Communication TO: RAY SILVER, City Administrator FROM: GAIL HUTTON, City Attorney DATE: April 2, 2001 SUBJECT: Approval of modified indemnification and insurance requirements for Agreement between the City and AMX International, Inc.; Council Meeting of April 2, 2001, Agenda Item E-15 A waiver of the standard insurance and indemnification provisions is recommended for the AMX International Software License Agreement. Pursuant to Resolution 9720, City Council must waive the standard insurance and indemnification requirements. To affect the appropriate waiver, Recommended Action No. 1 should be modified to read as follows: 1. Approve and authorize the Mayor and City Clerk to execute the AMX International, Inc. Budget Plus Software License Agreement for an amount not to exceed $21,500, and further approve limited liability and indemnification obligations and waiver of professional liability insurance. The AMX International Inc. Software License Agreement includes limitations of liability and indemnification obligations of the vendor to the City. Specifically, Paragraph 13 (A) — (C) limit the liability of either party to the value of the contract ($21,500.00) and limit the indemnification of both parties for third party claims to direct damages only. The indemnification limitation is in conflict with the standard indemnification provision required by Resolution 9720, which requires full indemnification from the vendor to the City for any and all claims, including attorney's fees. In addition, the agreement requires the vendor to provide professional liability coverage, which is inappropriate as a provision to a software license agreement as there is not risk of loss due to professional services. The limitation of liability and indemnification is standard in software license agreements and both the Settlement Committee and the City Council have previously approved similar language. GAIL HUTTON, City Attorney c: Michael Dolder, Fire Chief RCA ROUTING SHEET INITIATING DEPARTMENT: FIRE SUBJECT: Approve the AMX International, Inc. Budget Plus Software License and Software Maintenance Agreements for the J.D. Edwards Enterprise Resource Planning System COUNCIL MEETING DATE: I Aril 2, 2001 a RCA ATTACHMf NTS . ........,... .. ..... ... . STATUS ... ... ..r,_ ..........-_.... _...... Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable w 1 lull«�li Council/Agency Meeting Held: ntinued to: ❑ Approved Council Meetin Conditionally Approved ❑ Denied City Clerk's Signature April 2, 2001 1 Department ID Number: F[t01405 CITY OF HUNTINGTON BEACH EQUEST FOR COUNCIL ACTION00 ' SUBMITTED TO: HONO BLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY:. RAY SILV , City Administrator ^V PREPARED BY: MICHAEL P. LDER, Fire Chief/Information Systems Director SUBJECT: APPROVE THE A INTERNATIONAL, INC. BUDGET PLUS SOFTWARE LICENSE AND SOF ARE MAINTENANCE AGREEMENTS FOR THE J.D. EDWARDS ENT PRISE RESOURCE PLANNING SYSTEM Statement of Issue, Funding Source, Recommended Action, Alt native Action(s), Analysis, Environmental Status, Attachments) Statement of Issue: Should the City purchase budQeting software from AMX International, Inc. as a component of the J.D. Edwards Enterprise Rsource Planning System implementation? Funding Source: Sufficient funds remain in the Capital\an ccount (30143002.86000) to purchase budgeting software, maintenance, installation, ag at a cost not to exceed $35,000. No additional funding is required. On October he City Council appropriated $4,555,101 for Phase I of the J.D. Edwards Business Sysmentation, including supporting contracts and agreements. Additionally, the F2000/2001 budget includes $1,211,323 in carryover funds from Phase I for funding aftware products such as AMX International, Inc. Budget Plus. Phase II funding of is also included in the Fiscal Year 2000/2001 budget. Recommended Action: MOTION TO: 1. Approve and authorize the Mayor and City Clerk to execute the AMX I TIONAL, INC. BUDGET PLUS Software License Agreement for an amount not to%ERNA ceed $21,500. 2. Approve and authorize the Mayor and City Clerk to execute the AMX INTER TIONAL, INC. BUDGET PLUS Software Maintenance Agreement for an amount not to ceed $3,870. Alternative Action(s): Do not approve the AMX INTERNATIONAL, INC. agreeme providing budget software enhancements for the implementation of the J.D. Edwards Enterprise Resource Planning System. k REQUEST FOR MEETING DATE: April 2, 2001 COUNCIL ACMN DEPARTMENT ID NUMBER: FD 01-005 Analysis: Th City Council, at their October 18, 1999 meeting, approved $4,555,101 for Phase I of the J. Edwards Enterprise Resource Planning Business System Software implementation. \withe the City Council approved Phase I carryover of $1,211,323 and Phase II funding o0 for the project including $35,000 for budget software enhancements. Omonths, staff evaluated this budget enhancement software, which is compatib.D. Edwards Business System Software, and recommends AMX Internationalt Plus Software as the only viable budget software enhancement. AMX International, Inc. Budget us Software will provide the City with additional budget management and controls. The ftware also provides the ability to perform budget checking during the accounts paya and journal entry process to guard against budget over runs. In order to meet the budget detail needs bf the City, the additional AMX Budget Plus Software is required over and above the J.\ad s Software capabilities. The AMX International, Inc. Budget Plus Software Lieement (Attachment 1) and the AMX International, Inc. Budget Plus Softwnance Agreement (Attachment 2) include provisions that meet City requiremllow for the implementation of budget enhancement software for additional budgand the production of detailed and enhanced budget analysis and reports. The Certificate of Insurance has been reviewed and ap roved by the City Attorney (Attachment 3). Staff requests the City Council approve MX International, Inc. Budget Plus Software License and Software Maintenance agreements r the J.D. Edwards Enterprise Resource Planning System. Environmental Status: None. Attachment(s): I 1. I AMX INTERNATIONAL, INC. BUDGET PLUS\Software License Aqreement. E 3. RCA Author: Dolder AMX INTERNATIONAL, INC. BUDGET PLUS Aqreement. Certificate of Insurance Maintenance FD01 005 AMX International Budget2.doc .2. 3/26/01 2:16 PM