1 FIRST AMENDMENT TO AGREEMENT 19-194
BETWEEN THE CITY OF CUPERTINO AND ACUITY
BRANDS, INC., FOR BUILDING ENERGY
MANAGEMENT PLATFORM
This First Amendment to Agreement 19- 194 between the City of Cupertino and ACUITY BRANDS, INC., is by and betweenthe CITY OF CUPERTINO, a municipal corporation (hereinafter City") and ACUITY BRANDS, INC., a (“Contractor”) whose address is 55 Harrison St., # 200, Oakland, CA. 94607, and is madewith referenceto the following:
RECITALS:
A. On December 17, 2019, Agreement 19-194 (“Agreement”) was enteredinto by and between City and Contractor for Building Energy Management Platform.
B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreedby and betweenand undersignedparties as follows:
TERM
1. Paragraph 1 is modified to read as follows:
The term of this Agreement shall commenceon December 10, 2019. The term of this Agreement is 4 years, unless the Agreement is terminated prior thereto under the provisions of Section 16, below.
COMPENSATION
2. Paragraph1 is modified to readas follows:
Software Provider shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed $182,200.00. The paymentsspecified in this section shall be the only paymentsto be made to Software Provider for services rendered pursuant to this Agreement. Software Provider shall invoice City according to the following scheduleof milestones/ deliverables:
Upon execution of
this Agreement
Year 1 (Initial Period) December
10, 2019 through December 9,
2020
45,500
Year 2 ( Renewal 1) December 10, 2020
through December 9, 2021
45,500
Year 3 (renewal 2) December 10, 2021
through December 9, 2022
45,500
Year 4 (renewal 3) December 10, 2022
through December 9, 2023
45,500
total $ 182,200
City shall pay Contractor within thirty ( 30) days after receipt of Service Provider’s invoice. City shall return to Contractor any payment request determined not to be a proper payment request as soon as practicable, but not later than seven (7) days after receipt, and shall explain in writing the reasonswhy the payment request is not proper.
ATTACHMENT B
2 1. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the sameand shall be in full force andeffect.
IN WITNESS WHEREOF, the parties hereto have causedthis modification of Agreement to be executed.
CITY OF CUPERTINO
By
Title
Date
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date
ACUITY BRANDS, INC.
By
Title
Date
EXPENDITURE DISTRIBUTION
Item Amount
Original Contract $ 136, 500
First Amendment $ 45,500
Total $ 182,200
Karlee Kennedy
VP Sales
Nov 29, 2022
Christopher D. Jensen
CTO
Nov 30, 2022
Nov 30, 2022
Contract No. ________
Exhibit B: Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured.
1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES Additional Insureds:
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“ Additional Insureds”) are to be covered as additional insureds on Consultant’ s Commercial General Liability and Cyber Liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’ s insurance ( at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used).
Primary Coverage:
Coverage afforded to City/ Additional Insureds shall be primary insurance. Any insurance or self- insurance maintained by City, its officers, officials, employees, or volunteers shall be excessof Software Provider’ s insurance and shall not contribute to it.
Notice of Cancellation:
Each insurance policy shall state that coverageshall not be canceledor allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non- payment of premiums.
Workers' Compensation:
As required by the State of California, with Statutory Limits and Employer’ s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.
The Workers’ Compensation policy shall be endorsedwith a waiver of subrogation in favor of City for all work performed by Software Provider, its employees, agents, and subconsultants.
General Liability:
For bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence ( ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/ location ( ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or ( ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater.
b. Additional Insured coverage under Software Provider’s policy shall be " primary and non-contributory," will not seek contribution from City’s insurance/self- insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13).
Contract No. ________
c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excessinsurance, provided eachpolicy complies with the requirements set forth in this Agreement. Any umbrella or excessinsurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a namedinsured.
Automobile Liability
ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000, 000 per accident for bodily injury and property damage.
Cyber Liability:
Insurance, with limits not less than:
2,000,000 eachoccurrence
2,000,000 aggregate - all other
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Software Provider in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damageto or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security. The policy shall provide coverage for breach responsecosts as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respondto theseobligations.
If the Software Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Software Provider. Any available insuranceproceedsin excessof the specified minimum limits of insurance and coverage shall be available to the City.
2. ABSENCE OF INSURANCE COVERAGE.
City may direct Software Provider to immediately cease all activities with respect to this Agreement if it determines that Software Provider fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Agreement. At the City’ s discretion, under conditions of lapse, City may purchase appropriate insurance and charge all costsrelated to such policy to SoftwareProvider.
3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall be provided to City by each of Software Provider' s insurance companies as evidence of the stipulated coverages prior to the Commencement Date of this Agreement, and annually thereafter for the term of this Agreement. All of the insurance companies providing insurance for Software Provider shall be licensed to do insurance business in the State of California and shall have, and provide evidence of, a Best Rating Service rate of A: VII or above.
Contract No. ________
4. SUBCONTRACTORS
Software Provider shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’ s insurance policies.
5. HIGHER INSURANCE LIMITS
If Software Provider maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Software Provider.
6. ADEQUACY OF COVERAGE
City reserves the right to modify these insurance requirements/ coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety ( 90) days prior written notice.
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY 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.
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER( S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certicate holder is an ADDITIONAL INSURED, the policy( ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certicate does not confer rights to the certicate holder in lieu of such endorsement( s).
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
CERTIFICATE HOLDER
1988- 2015 ACORD CORPORATION. All rights reserved.
ACORD 25 ( 2016/ 03)
AUTHORIZED REPRESENTATIVE
CANCELLATION
DATE ( MM/ DD/ YYYY)
CERTIFICATE OF LIABILITY INSURANCE
OTHER:
LOCJECTPRO-POLICY
GEN' L AGGREGATE LIMIT APPLIES PER:
OCCURCLAIMS-MADE
COMMERCIAL GENERAL LIABILITY
PREMISES ( Ea occurrence)$
DAMAGE TO RENTED
EACH OCCURRENCE $
MED EXP ( Any one person) $
PERSONAL & ADV INJURY $
GENERAL AGGREGATE $
PRODUCTS - COMP/ OP AGG $
RETENTIONDED
CLAIMS- MADE
OCCUR
AGGREGATE $
EACH OCCURRENCE $UMBRELLA LIAB
EXCESS LIAB
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
INSRLTR TYPE OF INSURANCE POLICY NUMBER
POLICY EFF(
MM/ DD/ YYYY)
POLICY EXP(
MM/ DD/ YYYY) LIMITS
PERSTATUTE
OTH-
ER
E. L. EACH ACCIDENT
E. L. DISEASE - EA EMPLOYEE
E. L. DISEASE - POLICY LIMIT
ANY PROPRIETOR/ PARTNER/ EXECUTIVE
If yes, describe under
DESCRIPTION OF OPERATIONS below
Mandatory in NH)
OFFICER/ MEMBER EXCLUDED?
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY Y / N
AUTOMOBILE LIABILITY
ANY AUTO
OWNED SCHEDULED
HIRED NON- OWNED
AUTOS ONLY AUTOS
AUTOS ONLY AUTOS ONLY
COMBINED SINGLE LIMIT
BODILY INJURY ( Per person)
BODILY INJURY ( Per accident)
PROPERTY DAMAGE $
INSD
ADDL
WVD
SUBR
N / A
Ea accident)
Per accident)
The ACORD name and logo are registered marks of ACORD
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
INSURED
PHONE(
A/ C, No, Ext):
PRODUCER
ADDRESS:
E- MAIL
FAX(
A/ C, No):
CONTACTNAME:
NAIC #
INSURER A :
INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
INSURER( S) AFFORDING COVERAGE
45YUC5XP
City of Cupertino
Attn: Marilyn Monreal
10300 Torre Ave
Cupertino, CA 95014- 3202
5,000,000W1F9A2220601
MTE9032590 07
404 497- 7500
Cyber ( E& O)
Beazley Insurance Company, Inc.
Aggregate Limit of Liability
36940
37540
Indian Harbor Insurance Company
5,000,00011/
01/ 2023 $
5,000, 000 excess of
McGriff Insurance Services, Inc.
3400 Overton Park Drive SE
Suite 300
Atlanta, GA 30339
Acuity Brands, Inc.
One Lithonia Way
Conyers, GA 30012
10/ 31/ 2022
A
B
11/ 01/ 2022
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER( S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
A/ C, No):
FAX
E-
MAILADDRESS:
PRODUCER
A/ C, No, Ext):
PHONE
INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy( ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement( s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER( S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
Per accident)
Ea accident)
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY 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.
PROPERTY DAMAGE
BODILY INJURY ( Per accident)
BODILY INJURY ( Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOSONLY
NON- OWNED
SCHEDULEDOWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/ MEMBER EXCLUDED?
Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/ PARTNER/ EXECUTIVE
E. L. DISEASE - POLICY LIMIT
E. L. DISEASE - EA EMPLOYEE
E. L. EACH ACCIDENT
EROTH-STATUTEPER
LIMITS(MM/ DD/ YYYY)
POLICY EXP(
MM/ DD/ YYYY)
POLICY
EFFPOLICYNUMBERTYPEOFINSURANCELTRINSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $ EACH OCCURRENCE
AGGREGATE
OCCUR
CLAIMS- MADE
DED RETENTION $
PRODUCTS - COMP/ OP AGG
GENERAL AGGREGATE
PERSONAL & ADV INJURY
MED EXP ( Any one person)
EACH OCCURRENCE
DAMAGE TO RENTED $
PREMISES ( Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS- MADE OCCUR
GEN' L AGGREGATE LIMIT APPLIES PER:
POLICY
PRO-
JECT LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE ( MM/ DD/ YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 ( 2016/ 03)
1988- 2016 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
Willis Towers Watson Southeast, Inc.
c/ o 26 Century Blvd
P.O. Box 305191
Nashville, TN 372305191 USA
Acuity Brands, Inc.
Attn: Angela Matherly
OneLithonia Way
Conyers, GA30012
This Voids and Replaces Previously Issued Certificate Dated 11/10/2022 WITHID: W26654399.
City of Cupertino is included as an Additional Insured as respects to General Liability.
Waiver of Subrogation applies in favor of Additional Insured with respects to WorkersCompensation, as permitted by law.
City of Cupertino
Attn: Marilyn Pavlav
10300 Torre Avenue
Cupertino, CA95014-3202
11/ 11/ 2022
1-877-945-7378 1-888-467-2378
certificates@willis. com
National Union Fire Insurance Companyof P 19445
AIU Insurance Company 19399
W26656052
A
3, 000, 000
3, 000, 000
12, 000, 000
Y GL 1728978 09/ 01/ 2022 09/ 01/ 2023
A
5, 000, 000
09/ 01/202309/01/2022AL4993211
A 10, 000, 000
25, 000
14572379 09/ 01/ 2022 09/ 01/ 2023 10, 000, 000
WC035901874BY
3, 000,
00009/01/ 2022 09/ 01/ 2023 3, 000, 000
3, 000, 000
273926223317708SRID: BATCH:
Willis Towers WatsonCertificate Center
SUPPLEMENT TO CERTIFICATE OF INSURANCE
Named Insured: Acuity Brands, Inc. and its subsidiaries Brands Names:
Aculux Lithonia Lighting nLight
A- Light Luminaire LED Sensorswitch
American Electric
Lighting
Luminis Pathway Connectivity
Solutions
Cyclone Mark Architectural
Lighting
eldoLED
Eureka Peerless Lighting IOTA
Gothom Lighting Sunoptics Power Sentry
Healthcare Lighting Verjure Reloc Wiring
Holophane Winona WhiteOptics
Hydrel Acuity Controls QUICKTRONIC
Indy Dark to Light Atrius
Juno Fresco Distech Controls
Acuity Brands, Inc. 9/ 1/ 2022 – 9/ 1/ 2023 Insurance Program Certificates of Insurance Attachment
Insured : Acuity Brands, Inc., including all Subsidiaries Subsidiaries: Acuity Brands Lighting, Inc.
A to Z Manufacturing LLC
AB BMS C.V.
AB Netherlands Holdings B. V.
ABL IP Holding LLC
Acuity Aviation LLC
Acuity Brands BMS B. V. ( Netherlands)
Acuity Brands Insurance ( Bermuda) Ltd.
Acuity Brands Lighting Canada, Inc.
Acuity Brands Lighting ( Hong Kong) Limited
Acuity Brands Lighting de Mexico, S de RL de CV
Acuity Brands Mexico Holdings II LLC
Acuity Brands Netherlands B. V.
Acuity Brands Services, Inc.
Acuity Brands Technology Services, Inc.
Acuity Mexico Holdings, LLC
Acuity Trading ( Shanghai) Co. Ltd.
Amerillum, LLC
Arizona ( Tianjin) Electronics Trade Co. Ltd.
Arizona Trading Company Ltd.
Castlight de Mexico SA de CV
Distech Controls Facility Solutions, Inc.
Distech Controls Energy Services, Inc.
Distech Controls Energy Services ( Canada) Inc.
Distech Controls USA, Inc.
Distech Controls, Inc.
Distech Controls SAS, Sweden PE
eldoLAB Holding B. V.
EldoLED B. V.
EXY Poland sp. Z o. o. ( Poland)
Holophane Europe Ltd.
Holophane Lighting Ltd.
Holophane SA de CV
HSA Acquisition, LLC (Ohio)
ID Limited
Luminaire LED LLC
Luxfab Limited ( UK)
Rockpile Ventures, Inc.
The Luminaires Group Inc. ( Canada)
The Luminaires Group USA, LLC
09/01/2022
AIU INSURANCE CO
FirstAmendmentto BuildingEnergy
ManagementPlatformAgreement
Final Audit Report 2022-11-30
Created: 2022-11-29
By: City of Cupertino ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAANOK_YWWgMOiHenu9SbbWPeGX7b8mYFeZ First Amendmentto BuildingEnergyManagementPlatformAgr
eement" History
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