TECHNOLOGY SOFTWARE- AS- A- SERVICE ( SaaS) AGREEMENT
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
ACUITY BRANDS TECHNOLOGY SERVICES, INC., FOR SOFTWARE- AS- A-
SERVICE
THIS AGREEMENT (" Agreement"), by and between the CITY OF CUPERTINO, a California municipal corporation (" City"), and Acuity Brands Technology Services, Inc., a corporation whose address is 55 Harrison St, # 200, Oakland, CA. 94607 (" Software Provider") ( collectively referred to as the" Parties").
RECITALS:
The following Recitals are a substantive portion of this Agreement:
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California.
B. Software Provider is specially trained, experiencedand competent to perform the specialserviceswhich will berequiredby this Agreement.
C. City and Software Provider desire to enter into an agreement for Software Provider's provision of software-as-a-service (SaaS) pertaining to City' s online systems.
Through this Agreement, Software Provider shall provide to City a building energy management and analytics platform relating to the City' s network. The full scope of services covered by this agreement is described in the attached Exhibit A: Service Level Agreement ( the " SLA").
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on December 10, 2019. The term of this Agreement is 1 year, unless the Agreement is terminated prior thereto under theprovisions of Section16, below. The City hasthe option, at its solediscretion, to renew this Agreement for two additional consecutive 1-year terms.
2. SCOPE OF SERVICES AND CONDITIONS THEREOF
Subject to the terms and conditions set forth in this Agreement, Software Provider shall perform each and every service to the schedule of performance set forth in the SLA ( collectively" Services"), as described below.
A. Responsibilities of Software Provider. Software Provider shall provide the software services as further described in the SLA. The Services provided under this Agreement shall include (a) any software, plug-ins or extensionsrelated to the Services or upon which the Services are based including any and all updates, upgrades, bug fixes, dot releases, version upgrades or any similar changesthat may be made available to the Software Provider from time to time ( the" Software"), ( b) any and all technical documentationnecessaryor useof the Services, in hard copy
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ATTACHMENT C
form or online ( the " Documentation"), ( c) regular maintenance of Software Provider's system, and (d) othertechnology, userinterfaces, know-how and other trade secrets, techniques, designs, inventions, data, images, text, content, APIs, and tools provided in conjunction with the Services.
B. Equipment. If necessaryto enable Software Provider to fulfill its obligations under the SLA, Software Provider shall, at its sole cost and expense, furnish all facilities, personnel and equipment to City necessary to provide the Services ( the Equipment").
c. Registration. Prior to using the Services, City shall identify the administrative users for its account (" Administrators"). Each Administrator will be provided an administrator ID and password.
D. License Grant. Software Provider hereby grants City a license to usethe Software and the Documentation for the permitted purpose of accessing the Services.
E. Reservation of Rights and Data Ownership. City shall own all right, title and interest in its data that is related to the services provided by this contract. Software Provider shall not accessCity user accounts or City data, except( 1) as essential to fulfillment of the objectives of this Agreement, ( 2) in response to service or technical issues, or( 3) at City' s written request.
F. Data Protection. In carrying out the Services, Software Provider shall endeavor to protect the confidentiality of all confidential, non-public City data(" City Data") as follows:
1. Implementandmaintainappropriatesecuritymeasuresto safeguardagainst unauthorized access, disclosure or theft of City Data in accordance with recognized industry practice.
2. City Data shall be encrypted at rest and in transit with controlled access.
Unless otherwise stipulated, Software Provider is responsible for encryption of the City Data.
3. Software Provider shall not use any City Data collected by it in connection with the Servicefor anypurposeotherthan fulfilling the obligationsunder this Agreement.
G. Software Ownership. Software Provider owns the Services, Software, Documentation, andany underlyinginfrastructureprovidedby ServiceProvider in connection with this Agreement. City acknowledgesand agreesthat ( a) the Services, any Software and Documentation are protectedby United Statesand international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) Software Provider retains all right, title and interest (including, without limitation, all patent, copyright, trade secretand other intellectual property rights) in and to the Services, the Software, any Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, ( c) the Software and access to the Services are licensedon a subscriptionbasis, not sold, andCity acquiresno ownershipor other interest in or to the Services, the Software or the Documentation other than the license rights expressly stated herein, and( d) the Services are offered as an on-line, j hosted solution, and that City has no right to obtain a copy of the Services.
H. Restrictions. City agrees not to, directly or indirectly: ( i) modify, translate, copy or createderivativeworks basedon the Serviceor any elementof the Software, (ii)
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interfere with or disrupt the integrity or performanceof the Servicesor the data containedtherein or block or disrupt anyuseor enjoymentof the Servicesby any third party, ( iii) attempt to gain unauthorized accessto the Services or their related systems or networks or ( iv) remove or obscure any proprietary or other notice contained in the Services, including on any reports or data printed from the Services.
i. Security Incident. In the event a data breach occurs with respect to City Data, Software Provider will provide notice within a reasonabletime following a reasonable suspicion that there has been unauthorized
access/modification/ destruction to the information of the City. Software Provider shall( 1) cooperate with City to investigate and resolve the databreach,( 2) promptly implement necessary remedial measures,if necessary, and( 3) document responsive actions taken related to the data breach, including any post-incident review of . events and actions taken to make changes in business practices in providing the services, if necessary.
r. Notification of Legal Requests. Software Provider shall contact City upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to City Data. Software Provider shall not respond to subpoenas, service of processand other legal requestsrelatedto City without first notifying City, unlessprohibited by law from providing suchnotice.
K. Access to Security Logs and Reports. Software Provider shall provide reports to City in a format as specifiedin the SLA agreedto by both SoftwareProvider and City. Reportsshall include latency statistics, useraccess, useraccessIP address, useraccesshistory and securitylogs for all City files relatedto this Agreement.
L. Responsibilities and Uptime Guarantee. Software Provider shall be responsible for the acquisition and operation of all hardware, software and network support related to the servicesbeing provided, to the extent the hardware, software and network support are maintained by Software Provider. The technical and professionalactivities required for establishing, managingand maintaining these environments are the responsibilities of Software Provider. The system shall be available for City' s use on a 24/7/365 basis ( with agreed- upon maintenance downtime).
M. Intentionally Omitted.
N. Business Continuity and Disaster Recovery. Software Provider shall provide to City a written business continuity and disaster recovery plan prior to or at the time of execution of this agreement and shall ensure that it meets City' s recovery time objective ( RTO) of four( 4) hours or less.
o. Compliance with Accessibility Standards. Software Provider shall comply with and adhere to the Americans with Disabilities Act of 1990 ( 42 U. S. C. § 12101).
P. Web Services. Software Provider shall use Web services exclusively to interface with City Data in nearrealtime whenpossible.
Q. Encryption of Data at Rest. Software Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced 'in FIPS 140-2, SecurityRequirementsfor CryptographicModulesfor all personaldata,unlessCity approves the storage of personal data on Software Provider' s portable device in order to accomplish work as defined in the statement of work.
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3. COMPENSATION TO SOFTWARE PROVIDER
Software Provider shall be compensatedfor services performed pursuant to this Agreement in a total amount not to exceedTwo Hundred Twenty Two Thousand and five hundred dollars($ 222,500.00). The paymentsspecifiedin this sectionshall be the only payments to 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 Year 1 ( Initial Period) December 45, 500. 00 this Agreement 10, 2019 through December 9,
2020
Year 2 December 10, 2020 45, 500. 00
Renewal 1) through December 9, 2021
Year 3 December 10, 2021 45, 500. 00
Renewal 2) through December 9, 2022
City shall pay Contractor within thirty( 30) days after receipt of Service Provider' s invoice. City shall return to Contractor anypayment requestdeterminednot 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.
4. TIME IS OF THE ESSENCE
Software Provider and City agree that time is of the essence regarding the performance of this Agreement.
5. LICENSES; PERMITS; ETC.
Software Provider representsand warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required to carry out the purposesof this Agreement.
6. ASSIGNMENTS. Software Provider may assign, sublease, or transfer this Agreement, or any interest therein, to a third party without providing notice to City. Suchnotice shall be provided within ten (10) daysafter the action to assign, sublease, or transfer this Agreement, or any interest therein occurs. City may elect to terminate this Agreement within thirty( 30) daysof suchnotice. If City electsto terminate this Agreement due to assignment, sublease, or transfer of the Agreement, Software Provider shall refund to City any unused amount of the yearly payment to Software Provider, on apro-rated basis.
7. INDEPENDENT PARTIES
City and Software Provider intend that the relationship between them createdby this Agreement is that of independent contractor. No civil service status or other right of employmentwill be acquiredby virtue of SoftwareProvider's services.
None of the benefits provided by City to its employees, including but not limited
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None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Software Provider, its employees or agents. Software Provider is not a "public official" for purposes of Government Code §§ 87200 et seq.
8. IMMIGRATION REFORM AND CONTROL ACT ( IRCA)
Software Provider assumesany and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal or state rules and regulations.
SoftwareProvider shall indemnify and hold City harmlessfrom and againstany loss, damage, liability, costsor expensesarising from any noncomplianceof this provision by Software Provider.
9. NON- DISCRIMINATION
Consistent with City' s policy prohibiting harassment and discrimination, Software Provider agrees that neither it nor its employee or subcontractors shall harass or discriminate againstajob applicant, a City employee, or a citizen on the basisof race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, sexual orientation, or any other protected class status.
Software Provider agrees that any and all violations of this provision shall constitute a material breach of this Agreement.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
SoftwareProvider agreesto, at its expense,defendand/or settleanyclaim madeby a third party against City alleging that the City' s use of the Services infringes such third party' s United States patent, copyright, trademark or trade secret ( an " IP Claim"), and pay those amounts finally awarded by a court of competent jurisdiction against City with respect to such IP Claim.
11. DUTY TO INDEMNIFY AND HOLD HARMLESS
Software Provider shall indemnify, defend, and hold harmless City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including for any injury to or deathof any personor damageto property or other liability of any nature, whether physical, emotional, consequentialor otherwise, arising out, pertaining to, or related to the negligent or willful misconduct of Software Provider or Software Provider' s employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City' s choice, expert fees and all other costs and fees of litigation. The provisions of this Section survive the completion of the Services or termination of this Contract.
12. INSURANCE:
A. General Requirements. On or before the commencement of the term of this Agreement, Software Provider shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of
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insurance coverage in compliance with the requirements listed in Exhibit ` B".
Software Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement.
B. Subrogation Waiver. Software Provider agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Software Provider shall look solely to its insurance for recovery. Software Provider hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either SoftwareProvideror City with respectto the servicesof SoftwareProviderherein, a waiver of any right to subrogation which any such insurer of said Software Provider may acquire against City by virtue of the payment of any loss under such insurance.
13. RECORDS
Software Provider shall maintain internal records reflecting that the Services were performed by Software Provider hereunder in accordance with customary recordkeeping practices in the software development industry. Software Provider shall provide free accessto such records to the representativesof City or its designee's at all reasonableandproper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary. No such examination and audit shall give City the right to accessrecords relating to other Software Provider customers. Such records shall be maintained for a period of three ( 3) years after Software Provider receives final payment from City for all services required under this agreement.
14. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code and Agreement will terminate without any penalty ( a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement.
15. NOTICES
All notices, demands,requestsor approvalsto be given underthis Agreementshall be given in writing and conclusively shall be deemed served when delivered personally or on the secondbusinessday after deposit in the U.S. Mail, postage prepaid, addressedas hereinafter provided. All notices, demands, requests, or approvals shall be addressed as follows:
TO CITY:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Bill Mitchell
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Copy to:
Heather M. Minner, Esq.
City Attorney, City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014- 3255
TO SOFTWARE PROVIDER:
Acuity Brands Technology Services, Inc.
55 Harrison St, # 200
Oakland, CA. 94607
Attention: John Catoline
16. TERMINATION
A. Basis for Termination. In the event either Party fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that Partyshallbedeemedin default in theperformanceof this Agreement. If that Party fails to cure the default within the time specified and according to the requirements set forth in a written notice of default, and in addition to any other remedy available by law, the otherPartymay terminatetheAgreementby giving thedefaultingParty written notice thereof, which shall be effective immediately.
Either Party shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving thirty( 30) calendar days' prior written notice to the other Party as provided herein. If such notice is received by Software Provider, it shall immediately discontinue performance.
B. . Pro Rata Payments. City shall pay Software Provider for services satisfactorily performed up to the effective date of termination. In such event, a calculation of the amounts due shall be deemed correct as computed on apro rata basiswith compensationprovided for theperiod of servicepaid asa percentageof the total contractamount. If City hadalreadypaid SoftwareProvider for services in advance, upon termination, Software Provider shall refund to City any unused amount of the yearly payment to Software Provider, on a pro- rated basis.
C. Handling of City Data. In the event of a termination of this Agreement, Software Provider shall implement an orderly return of City data in a CSV or another mutually agreeableformat at a time agreedto by the parties and the subsequentsecuredisposalof City data. During anyperiod of servicesuspension, Software Provider shall not take any action to intentionally eraseany City data for aperiodof 30daysaftertheeffectivedateof termination,unlessauthorizedby City.
Software Provider shall securely dispose of all requested data in all of its forms, suchasdisk, CD/ DVD, backuptapeandpaper,whenrequestedby City. Datashall be permanently deleted and shall not be recoverable, according to National Institute of StandardsandTechnology(MIST)-approvedmethods.Certificatesof destruction shall beprovidedto City.
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17. WARRANTY AND WARRANTY DISCLAIMER
Software Provider warrants that, ( i) the services shall be provided in a diligent, professional, and workmanlike manner in accordance with industry standards, (ii) the services provided under this agreement do not infringe or misappropriate any intellectual property rights of any third party, and ( iii) the services shall substantially perform in all material respects as described in the SLA in the event of any breach of section ( iii), above, Software Provider shall, as its sole liability and your sole remedy, repair or replace the services that are subject to the warranty claim at no cost to City or if Software Provider is unable to repair or replace, then it will refund anypre-paid feesfor servicesnot rendered. Exceptfor the warranty described in this section, the services are provided without warranty of any kind, express or implied including, but not limited to, the implied warranties or conditions of design, merchantability, fitness for a particular purpose, and any warranties of title and non- infringement.
18. COMPLIANCE
Software Provider shall comply with all state or federal laws and all ordinances, rules, policies and regulations enacted or issued by City.
19. CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any suits brought pursuant to this Agreement shall be filed with the Superior Court for the County of Santa Clara, State of California.
20. ADVERTISEMENT
Software Provider shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertainingto the servicesperformedunderthis Agreementunlessprior written approval has been secured from City to do otherwise.
21. INTEGRATED CONTRACT
This Agreement, including all appendices, represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Software Provider. In the event that any Service Level Agreement, Exhibit, associated instrument or agreement executed by the Parties in conjunction with this Agreement or prior thereto contains a term that conflicts with the terms of this Agreement, the terms of this Agreement shall govern and supersedeany other document or Exhibit.
22. AUTHORITY
The individual( s) executing this Agreement represent and warrant that they have the legal capacityandauthority to do soon behalf of their respectivelegal entities.
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DocuSign Envelope ID: DB8A4E4F- 951F- 4FFD- 9042- 3805C8BF936C IN WITNESS WHEREOF, the parties have causedthis Agreement to be executed.
SOFT 49VIDER APPROVED AS TO FORM:
Acui `" gy, Inc.
By
Title VP,
customer success and Operati0ity Attorney
Date 12/ 12/ 2019 1 3: 52 PM PST Heather M. Minner
CITY OF CUPERTINO
A Municipal Corporatic ATTEST:
By
Title hief Technology Officer City Clerk
Date / Z , ZG Z/ 9
Over$ 175, 000- Council Approval Required
Over $ 45, 000- Department Head Approval
Required
Up to $ 45, 000- Designated Supervisor
Approval Required
RECOMMENDED FOR
AP 0
Nidhi Mathur, App. Manager
Exhibits:
Exhibit A: Service Level Agreement
Exhibit B: Insurance Requirements and Proof of Insurance
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Contract No.
I
Exhibit A: Service Level Agreement(" SLA")
I
10 Exhibit A - Service Level Agreement
lucid,
ORDER FORM
Account Name City of Cupertino Order Form# 1909- 2254 Company Address 55 Harrison Street,# 200 Contract Date 9112/ 2019 Oakland, CA 94607 Expiration Date 9/ 30/ 2019
US
Phone:( 510) 907- 0400 Subscription Start 10/ 1/ 2019
E-mail: sales@luciddg. com Date
Subscription End 9/ 30/ 2020
Date
Prepared By John Catoline Buildings 17
Phone 510) 845- 2740 Square Footage 185, 186
Email jatoline@luciddg. com Cloud Points 18
Automated Utility 350
Bills
Sales
Product Line Item Description
PriceQuantityTotalPrice
BuildingOS Core BuildingOS Subscription( Scope: Base License, Buildings, Utility& Interval Points, Platform Public Sector& Legacy Discounts)-$ 33, 500; CSM:$ 12, 000, Year1 45, 500. 00 1. 00 $ 45, 500. 00
Contracted
BuildingOS Subscription( Scope: Base License, Buildings, Points)-$ 33, 500; CSM:
Subscription 45, 500. 00 2. 00 $ 91, 000. 00
Non- Prepay)
12, 000, Years 2& 3- 2 years option to renew
All amounts are in USD. All orders may be subject to tax. Annual Subscription$ 45, 500. 00 Implementation Services will commence upon receipt of payment. Implementation $ 0. 00 Hardware 0. 00
Credits 0. 00
Tax 0. 00
Shipping and $ 0. 00
Handling
Grand Total 136, 500. 00
NOTES
Note to Customer - Per customer: The term of this Agreement is 1 year, unless the Agreement is terminated prior thereto under the provisions of Section 16 of the SaaS contract. The City has the option, at its sole discretion, to renew this Agreement for two additional consecutive 1-year terms.
Subscription ContractYear 1 at$ 45,500 set annual price:$ 33,500 for BuildingOSSubscription( including Buildings,data points, and applications)&$ 12, 000 for Customer Success/ Support Subscription
BILLING INFORMATION
This Order Form constitutes a non- cancellable purchase commitment and is effective as of the date on this Order Form signed by the duly authorized officer( s) or representative( s) of the parties. The subscription term shall be the Term and any Renewal Term as such terms are defined in the Application Services Agreement v011019 between the parties executed and delivered concurrently with this Order( the" ASA") which is available at hftps:// Iucidconnects. com/ terms and is incorporated by reference in this order.
DocuSiludd,
n Envelope ID: F553973D- OA82- 4ABD- BB20- 034E69E96810
ORDER FORM
BILLING INFORMATION ( to be filled out by the customer) Payment Terms: Total amount due within 30 days of receipt of invoice( net 30) PO Required Yes / No if yes) PO Number
Billing Contact:
Billing Email:
Billing Phone:
Billing Address:
IN WITNESS WHEREOF, the parties duly authorized officer( s) or representative( s) have executed this Agreement as of the Effective Date.
Customer Lucid DocuSigned by:
Signature Signature
E464166E6COA544E...
Name Name Sarah Diegnan
Title Title VP, Customer Success and Operations
Date Date 12/ 4/ 2019 1 10: 22 AM PST
This Order Form constitutes a non-cancellable purchase commitment and is effective as of the date on this Order Form signed by the duly authorized officer( s) or representative( s) of the parties. The subscription term shall be the Term and any Renewal Term as such terms are defined in the Application Services Agreement v011019 between the parties executed and delivered concurrently with this Order( the" ASA") which is available at hops:// Iucidconnects. com/ terms and is incorporated by reference in this order.
Contract No.
Exhibit B: Insurance Requirements and Proof of Insurance i
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:
City, its City Council, boards and commissions, officers, employees and volunteers shall be named as additional insureds under all insurance coverages, except any professional liability insurance, requiredby this Agreement. The namingof anadditional insuredshall not affect any recoveryto which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or.expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
Workers' Compensation:
Statutory coverage as required by the State of California and Liability Insurance with limit of no lessthan$ 1,000,000per accidentfor bodily injury or disease.
General Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury:
1, 000, 000 each occurrence
1, 000, 000 aggregate - all other
Property Damage:
500, 000 each occurrence
1,000, 000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of$ 2,000,000 will be considered equivalent to the required minimum limits shown above.
Cyber Liability:
Insurance, with limits not less than:
2, 000, 000 each occurrence
2, 000, 000 aggregate- all other
Coverageshall be sufficiently broadto respondto thedutiesandobligationsasis undertakenby Software Provider in this agreementand shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark,trade dress, invasionof 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 response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
11 Contract No.
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 insurance proceeds in excessof the specified minimum limits of insuranceandcoverageshall beavailableto 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 costs related to such policy to Software Provider.
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 coveragesprior to the CommencementDate 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, andprovide evidenceof, a Best Rating Servicerate of A VI or above. The Certificate of Insurance and coverage verification and all other notices related to cancellation or non- renewal shall be mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014- 3202
1177556. 1
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12 EXHIBITB
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:
City, its City Council, boards and commissions, officers, employees and volunteers shall be named as additional insureds under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
Workers' Compensation:
Statutory coverage as required by the State of California and Liability Insurance with limit of no lessthan$ 1,000,000per accidentfor bodily injury or disease.
General Liability:
Commercial general liability coverage in the following minimum limits:
BodilyI jury_
1, 000, 000 each occurrence
1, 000, 000 aggregate- all other
Property Damage:
500, 000 each occurrence
1, 000, 000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of$ 2,000,000 will be considered equivalent to the required minimum limits shown above.
Cyber Liability:
Insurance, with limits not less than:
2, 000, 000 each occurrence
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, damage to or destruction j of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenseswith limits sufficient to respond to these obligations.
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Contract No.
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 insurance proceeds in 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 costs related to such policy to Software Provider.
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 VI or above. The Certificate of Insurance and coverage verification and all other notices related to cancellation or non- renewal shall be mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014- 3202
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A CERTIFICATE OF LIABILITY INSURANCE 09/06/2o9'
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 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).
PRODUCER CONTACT
NAME:
Willis Insurance services of Georgia, Inc. PHONE - 877- 945- 7378 F/ X
c/ o 26 Century Blvd
N E •
1 AC,No: 1-888-467-2378
E- MAIL
P. O. Box 305191 ADDRESS: certificates@will is. com
Nashville, TN 372305191 USA INSURERS AFFORDING COVERAGE NAIC# INSURERA: National Union Fire Insurance Company of P 19445 INSURED INSURERB: New Hampshire Insurance Company 23841 Acuity Brands, Inc.
Attn: Lars. Pearson INSURER C:
One Lithonia Way INSURER D:
Conyers, GA 30012
INSURER E
INSURER F:
COVERAGES CERTIFICATE NUMBER: W12502136 REVISION NUMBER:
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.
INSR
ADDTYPEOF INSURANCE INSD WVDSUBRPOLICY NUMBER
POLICYPOLICYEFF EXP
LTR MM/ DD/ YYYY MMIDD/ YYYY LIMITS
X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE 3, 000, 000
CLAIMS- MADE X OCCUR DAMAGES(
RENTED
PREMISES Ea occurrence) $
A MED EXP( Any one person) $
y GL 6862386 09/ 01/ 2019 09/ 01/ 2020 PERSONAL&ADVINJURY $ 3, 000, 000 GEN' L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $
JECTPOLICY
PRO
LOC PRODUCTS- COMP/ OP AGG $ 12, 000, 000
OTHER:
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
Ea accident
ANY AUTO BODILY INJURY( Per person) $
OWNED SCHEDULED BODILY INJURY( Per accident) $AUTOS ONLY AUTOS
HIRED NON- OWNED PROPERTY DAMAGE
AUTOS ONLY AUTOS ONLY Per accident
UMBRELLA LIAB OCCUR EACH OCCURRENCE
EXCESS LIAB CLAIMS- MADE AGGREGATE
DED RETENTION$
WORKERS COMPENSATION PER OTH-
AND EMPLOYERS' LIABILITY Y/ N
X STATUTE ER
B ANYPROPRIETOR/ PARTNER/ EXECUTIVE E. L. EACH ACCIDENT 3, 000, 000 OFFICER/ MEMBEREXCLUDED? No N/ A WC 017515716 09/ Ol/ 2019 09/ Ol/ 2020 Mandatory in NH) E. L. DISEASE- EA EMPLOYEE $ 3, 000, 000 If yes, describe under 3, 000, 000DESCRIPTION OF OPERATIONS below E. L. DISEASE- POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES ( ACORD 101, Additional Remarks Schedule, maybe attached if more space is required) Re: BuildingOS Subscription Renewal.
The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are included as Additional Insured as required by contract.
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
City of Cupertino
AUTHORIZED REPRESENTATIVE
Attn: City Clerk
10300 Torre Avenue
Cupertino, CA 95014- 3202
1988- 2016 ACORD CORPORATION. All rights reserved.
ACORD 25( 2016103) The ACORD name and logo are registered marks of ACORD SR ID: 18479793 BATcx: 1356205
SUPPLEMENT TO CERTIFICATE OF INSURANCE
Named Insured: Acuity Brands, Inc. and its subsidiaries BRAND NAMES:
Accu Lite°
Acuity ControISTM
Acu IUXTM
American Electric Lighting°
Antique Street LampSTM
Atri USTM
Carandini°
DanaLite
Distech Controls°
eldoLED°
Gotham'
Healthcare Lighting°
Holophane°
Hydrel°
Ind yTM
IOTA°
Juno°
Lithonia Lighting°
lucid
Mark Architectural LightingTM
NaviLite°
Peerless°
Power Sentry
RELOC°
Sunoptics°
Winona° Lighting
Wiring Solutions
POLICY NUMBER: GL 686- 23- 86 COMMERCIAL GENERAL LIABILITY CG20100413
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s)
Or Organization( s) Location( s) Of Covered Operations
ANY PERSON OR ORGANIZATION WHOM YOU PER THE CONTRACT OR AGREEMENT,
BECOME OBLIGATED TO INCLUDE AS AN
ADDITIONAL INSURED AS A RESULT OF ANY
CONTRACT OR AGREEMENT YOU HAVE
ENTERED INTO.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section 11 - Who Is An Insured is amended to that which you are required by the contract include as an additional insured the person( s) or or agreement to provide for such additional organization( s) shown in the Schedule, but only
insured.
with respect to liability for " bodily injury", B. With respect to the insurance afforded to these property damage" or " personal and advertising additional insureds, the following additional injury" caused, in whole or in part, by: exclusions apply:
1. Your acts or omissions; or This insurance does not apply to " bodily injury"
2. The acts or omissions of those acting on or " property damage" occurring after:
your behalf; 1. All work, including materials, parts or in the performance of your ongoing operations
equipment furnished in connection with such
for the additional insured( s) at the location( s)
work, on the project ( other than service,
maintenance or repairs) to be performed bydesignated above, or on behalf of the additional insured( s) at
However: the location of the covered operations has
1. The insurance afforded to such additional been completed; or insured only applies to the extent permitted 2. That portion of b law; and
P your work" out of which
y the injury or damage arises has been put to
2. If coverage provided to the additional its intended use by any person or insured is required by a contract or organization other than another contractor or agreement, the insurance afforded to such subcontractor engaged in performing additional insured will not be broader than operations for a principal as a part of the same project.
CG 20 10 04 13 0 Insurance Services Office, Inc., 2012 Page 1 of 2 C. With respect to the insurance afforded to these 2. Available under the applicable Limits of additional insureds, the following is added to Insurance shown in the Declarations; Section III - Limits Of Insurance:
whichever is less.
If coverage provided to the additional insured is
required by a contract or agreement, the most
This endorsement shall not increase the
we will pay on behalf of the additional insured applicable Limits of Insurance shown in the is the amount of insurance: Declarations.
1. Required by the contract or agreement; or
POLICY NUMBER: GL 686- 23- 86 COMMERCIAL GENERAL LIABILITY CG 20 37 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/ COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s) Location And Description Of Completed Operations Or Organization( s)
ANY PERSON OR ORGANIZATION WHOM PER THE CONTRACT OR AGREEMENT
YOU BECOME OBLIGATED TO INCLUDE
AS AN ADDITIONAL INSURED AS A
RESULT OF ANY CONTRACT OR AGREEMENT
YOU HAVE ENTERED INTO.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II - Who Is An Insured is amended to which you are required by the contract or include as an additional insured the person( s) or agreement to provide for such additional organization( s) shown in the Schedule, but only
insured.
with respect to liability for " bodily injury" or B. With respect to the insurance afforded to these property damage" caused, in whole or in part, additional insureds, the following is added to by " your work" at the location designated and Section III - Limits Of Insurance:
described in the Schedule of this endorsement
If coverage provided to the additional insured is
performed for that additional insured and
required by a contract or agreement, the most
included in the " products- completed operations we will pay on behalf of the additional insured hazard". is the amount of insurance:
However: 1. Required by the contract or agreement; or
1. The insurance afforded to such additional 2. Available under the applicable Limits of Insu- insured only applies to the extent permitted rance shown in the Declarations; by law; and
whichever is less.
2. If coverage provided to the additional
insured is required by a contract or agree- This endorsement shall not increase the appli- ment, the insurance afforded to such addi- cable Limits of Insurance shown in the Decla- tional insured will not be broader than that
rations.
CG 20 37 04 13 0 Insurance Services Office, Inc., 2012 Page 1 of 1 Acuity Brands, Inc. -- 9/ 1/ 2019— 9/ 1/ 2020 Insurance Program Certificates of Insurance Attachment
Insured: Acuity Brands, Inc., including all Subsidiaries Subsidiaries: Acuity Brands Lighting, Inc.
A to Z Manufacturing LLC C& G Carandini S. A.
AB BMS C. V. Castlight de Mexico SA de CV
AB Netherlands Holdings C. V. Distech Controls Facility Solutions, Inc.
AB Netherlands Holdings LLC Distech Controls Energy Services, Inc.
ABL IP Holding LLC Distech Controls Energy Services, Inc. (Texas) Acuity Aviation LLC Distech Controls Energy Services( Canada) Inc.
Acuity Brands BMS B.V. ( Netherlands) Distech Controls LLC Acuity Brands BMS, LLC Distech Controls SAS France
Acuity Brands Insurance( Bermuda) Ltd. Distech Controls USA, Inc.
Acuity Brands Lighting Canada, Inc. Distech Controls, Inc.
Acuity Brands Lighting( Hong Kong) Limited Distech France Holding SAS Acuity Brands Lighting de Mexico, S de RLde CV eldoLAB Holding B.V.
Acuity Brands Mexico Holdings II LLC EIdoLED B. V.
Acuity Brands Netherlands B.V. Holophane Alumbrado Iberica SL Acuity Brands Services, Inc. Holophane Lichttechnik GmbH Acuity Brands Technology Services, Inc. Holophane Europe Ltd.
Acuity Mexico Holdings, LLC Holophane Lighting Ltd.
Acuity Trading( Shanghai) Co. Ltd. Holophane SA de CV
Arizona ( Tianjin) Electronics Trade Co. Ltd. HSA Acquisition, LLC( Ohio) Arizona Trading Company Ltd. ID Limited
Luxfab Limited ( UK)
Workers' Compensation Policy Information:
Effective Date: 9/ 1/ 2019— 9/ 1/ 2020
Carrier: New Hampshire Insurance Company
Policy Numbers by State:
WC 017515716 ( AL, AR, CO, CT, DE, GA, IA, ID, IN, KS, LA, MD, ME, MI, MN, MO, MS,
MT, NE, NM, NV, OK, OR, RI, SC, SD, TN, TX, VT, WV)
WC 017515713 ( FL)
WC 017515714( CA)
WC 017515715 ( MA, ND, WA, WI, WY)
WC 017515717( AZ, IL, KY, NC, NH, NJ, PA, UT, VA)
WC 017515718 ( NY)
DATE( MM/ DD, YYYY)
CERTIFICATE OF LIABILITY INSURANCE F
09/ 24/ 2019
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 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 endorsemenl c a
PRODUCER CONTACT L
NAME:
Aon Risk services South, Inc.
Atlanta GA Office la"C..N. E:t): ( 866) 283- 7122 jn/c.No.): C800) 363- 0105 v 3550 Lenox Road NE E- MAIL
Suite 1700
ADDRESS:
Atlanta GA 30326 USA
INSURER( S) AFFORDING COVERAGE NAIC#
INSURED INSURER A: Lloyd' s syndicate No. 2623 AA1128623 Acuity Brands, Inc. INSURERB:
Attn: Lara Pearson
One Lithonia Way
INSURER C:
Conyers GA 30012- 3957 USA
INSURER 0:
INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER: 570078438243 REVISION NUMBER:
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. Limits shown are as requested
INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER MM/ DD/ YYYY) ( MM/ DD/ YYVY) LIMITS
COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE
CLAIMS- MADE OCCUR
DAMAGE TO RENTED
PREMISES( Ea occurrence)
MED EXP( Any one person)
PERSONAL& ADV INJURY
vN
GEN' L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE
I
I,
I PRO-
POLICY I I JECT I I LOC PRODUCTS- COMP/ OP AGG m
III III,,,
o
OTHER:
ouDuD
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
Ea accident)
ANY AUTO BODILY INJURY( Per person)
OWNED AUTOS SCHEDULED BODILY INJURY( Per accident)
Z
ONLY AUTOS N
NON- OWNED PROPERTY DAMAGE
VHIRED AUTOS
AUTOS ONLY Per accident)
ONLY
t'NU
UMBRELLA LIAB OCCUR EACH OCCURRENCE
EXCESS LIAB CLAIMS- MADE AGGREGATE
DEDI
RETENTION
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY STATUTE FORTH
Y/ N
ANY PROPRIETOR I PARTNER/ EXECUTIVE E. L. EACH ACCIDENT
OFFICE MEMBER EXCLUDED, N/ A
Mandatory in NH) E. L. DISEASE- EA EMPLOYEE
If yes, describe under
DESCRIPTION OF OPERATIONS below E. L. DISEASE- POLICY LIMIT A E& O- MPL- Primary W1F9A2190301 09/ 01/ 2019 09/ 01/ 2020 Aggregate 10, 000, 000— E& O - Claims Made
SIR applies per policy terTis & condi ions
NON
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES( ACORD 101, Additional Remarks Schedule, may be attached if more space is required) J
CERTIFICATE HOLDER CANCELLATION 1
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION yDATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. r
City of Cupertino AUTHORIZED REPRESENTATIVE Ir
55 Harrison Street, # 200
Oakland CA 94607 USA
QC
Svc•
v
1988- 2015 ACORD CORPORATION. All rights reserved
ACORD 25( 2016/ 03) The ACORD name and logo are registered marks ofACORD AGENCY CUSTOMER ID: 570000031592
LOC#:
ADDITIONAL REMARKS SCHEDULE Page _ of _
AGENCY NAMEDINSURED
Aon Risk services south, Inc. Acuity Brands, Inc.
POLICY NUMBER
see certificate Number: 570078438243
CARRIER NAIC CODE
see certificate Number: 570078438243 EFFECTIVE DATE.
ADDITIONAL REMARKS
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Insurance Company Participation
Lloyd' s syndicate 2623: 82%
Lloyd' s syndicate 623: 18%
ACORD 101( 2008/ 01) 2008 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD