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23-088 MSI Fuel Management Inc (SaaS) Agreement Page 1 of 9 Rev. 7/26/23 TECHNOLOGY SOFTWARE-AS-A-SERVICE (SaaS) AGREEMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MSI FUEL MANAGEMENT, INC. FOR SOFTWARE-AS-A-SERVICE THIS AGREEMENT (“Agreement”), by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and MSI FUEL MANAGEMENT, INC. whose address is 865 Cotting lane, Ste E, Vacaville, CA 95688 ("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, experienced, and competent to perform the special services which will be required by 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 Cloud Based FuelMaster FMLive Upgrade 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 the last date signed below (“Effective Date”). The term of this Agreement is 5 Year, unless the Agreement is terminated prior thereto under the provisions of Section 16, below. The City’s appropriate department head or the City Manager may extend the Term through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 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 extensions related 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 changes that may be made available to the Software Provider from time to time (the “Software”), (b) any and all technical documentation necessary or use of the Services, in hard copy Page 2 of 9 Rev. 7/26/23 form or online (the “Documentation”), (c) regular maintenance of Software Provider’s system, and (d) other technology, user interfaces, 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 necessary to 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”). City agrees, if necessary, to install the Equipment at the location(s) and in the manner specified by Software Provider and as directed by Software Provider. Any Equipment installed by City is a part of the Service and loaned to City by Software Provider, not sold. City agrees to return the Equipment to Software Provider at the termination of this Agreement in an undamaged condition, less ordinary wear and tear. 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 use the 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 access City 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. Implement and maintain appropriate security measures to safeguard against 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 Service for any purpose other than fulfilling the obligations under this Agreement. G. Software Ownership. Software Provider owns the Services, Software, Documentation, and any underlying infrastructure provided by Service Provider in connection with this Agreement. City acknowledges and agrees that (a) the Services, any Software, and Documentation are protected by United States and 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 secret, and 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 licensed on a subscription basis, not sold, and City acquires no ownership or other Page 3 of 9 Rev. 7/26/23 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, 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 create derivative works based on the Service or any element of the Software, (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein or block or disrupt any use or enjoyment of the Services by any third party, (iii) attempt to gain unauthorized access to 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 shall immediately notify the appropriate City contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident. Software Provider shall (1) cooperate with City to investigate and resolve the data breach, (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. J. 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 process, and other legal requests related to City without first notifying City, unless prohibited by law from providing such notice. K. Access to Security Logs and Reports. Software Provider shall provide reports to City in a format as specified in the SLA agreed to by both Software Provider and City. Reports shall include latency statistics, user access, user access IP address, user access history, and security logs for all City files related to 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 services being provided. The technical and professional activities required for establishing, managing and maintaining the 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. Subcontractor Disclosure. Software Provider shall identify all of its strategic business partners related to services provided under this Agreement, including all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with Software Provider, and who shall be involved in any application development and/or operations. 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 Page 4 of 9 Rev. 7/26/23 with City Data in near real time when possible. Q. Encryption of Data at Rest. Software Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all personal data, unless City approves the storage of personal data on Software Provider’s portable device in order to accomplish work as defined in the statement of work. 3. COMPENSATION TO SOFTWARE PROVIDER Software Provider shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed $29,071.79. The payments specified in this section shall 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 schedule of milestones/deliverables: Milestone/Deliverable Total Amount Upon Contract Execution 29,071.79 - 29,071.79 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 reasons why 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 represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required to carry out the purposes of this Agreement. 6. ASSIGNMENTS. Software Provider may assign, sublease, or transfer this Agreement, or any interest therein, to a third party with the prior written consent of City. Such consent shall not be unreasonably withheld. City’s withholding of consent shall be deemed reasonable if it appears that the intended assignee in question is not financially or technically capable of performing Software Provider’s obligations under this Agreement, or if City has reason to conclude that the proposed assignee is otherwise incapable of fulfilling Software Provider’s duties hereunder. 7. INDEPENDENT PARTIES City and Software Provider intend that the relationship between them created by this Agreement is that of independent contractor. No civil service status or other Page 5 of 9 Rev. 7/26/23 right of employment will be acquired by virtue of Software Provider's services. 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 assumes any 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. Software Provider shall indemnify and hold City harmless from and against any loss, damage, liability, costs, or expenses arising from any noncompliance of thi s 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 against a job applicant, a City employee, or a citizen on the basis of 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. Software provider agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 10. INTELLECTUAL PROPERTY INDEMNIFICATION Software Provider agrees to, at its expense, defend and/or settle any claim made by 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 death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential, or otherwise, arising out of, pertaining to, or related to the performance of this Agreement by Software Provider or Software Provider’s employees, officers, officials, agents, or subcontractors, except where such liability arises solely as a result of the active negligence or willful misconduct of City. 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. Provider agrees to obtain executed indemnity agreements with provisions identical Page 6 of 9 Rev. 7/26/23 to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. The provisions of this Section 11 survive the completion of the Services or termination of this Agreement. 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 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. Software Provider shall also contractually require all subcontractors and subconsultants to maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement as set forth in Exhibit B. 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 Software Provider or City with respect to the services of Software Provider herein, 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 access to such records to the representatives of City or its designee’s at all reasonable and proper 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 access records relating to other Software Provider customers. Such records shall be maintained for a period of four (4) 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 this 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 Page 7 of 9 Rev. 7/26/23 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, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 Attention: Bill Mitchell TO SOFTWARE PROVIDER: MSI Fuel Management, Inc. 865 Cotting lane, Ste E Vacaville, CA 95688 Attention: Trent Douglass 16. TERMINATION A. Basis for Termination. In the event Software Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Software Provider shall be deemed in default in the performance of this Agreement. If Software Provider fails to cure the default within the time specified and according to the requirements set forth in City’s written notice of default, and in addition to any other remedy available to the City by law, the City Manager or her designee may terminate the Agreement by giving Software Provider written notice thereof, which shall be effective immediately. The City Manager or her designee shall also have the option, at her sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Software Provider as provided herein. Upon receipt of any notice of termination, Software Provider 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 a pro rata basis with compensation provided for the period of service paid as a percentage of the total contract amount. 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 agreeable format at a time agreed to by the parties and the subsequent secure disposal of City data. During any period of service suspension, Software Provider shall not take any action to intentionally erase any City data for Page 8 of 9 Rev. 7/26/23 a period of thirty (30) days after the effective date of termination, unless authorized by City. City shall be entitled to any post-termination assistance generally made available with respect to the Services; unless a unique data retrieval arrangement has been established as part of the SLA. Software Provider shall securely dispose of all requested data in all of its forms, including disk, CD/DVD, backup tape, and paper, when requested by City. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)- approved methods. Certificates of destruction shall be provided to City. 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 as City’s 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 any pre-paid fees for services not rendered. Except for 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, or display, or allow to be posted, exhibited, or displayed, any signs, advertising, show bills, lithographs, posters, or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. INTEGRATED CONTRACT This Agreement 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, Page 9 of 9 Rev. 7/26/23 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 supersede any other document or Exhibit. 22. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed. CITY OF CUPERTINO A Municipal Corporation By ___________________ Title ___________________ Date __________________ APPROVED AS TO FORM: _________________________ Christopher D. Jensen City Attorney ATTEST: __________________________ City Clerk __________________________ Date SOFTWARE PROVIDER MSI FUEL MANAGEMENT, INC. By ___________________ Title ___________________ Date __________________ President Jul 31, 2023 Christopher D. Jensen GIS manager Jul 31, 2023 Jul 31, 2023 MSI FUEL MANAGEMENT, INC. P.O. Box 718, Vacaville, CA 95696 Phone (707)449-4550 May 23, 2023 Teri Gerhardt City of Cupertino 10555 Mary Ave Cupertino, CA 95014 Reference: Cloud Based FuelMaster FMLive Upgrade SCOPE OF WORK Remove existing FuelMaster head and install new replacement FMLive head unit. Configure system to specific site and test for correct operation. On Site during Cloud Based setup with FuelMaster to ensure system functionality and operation. CLOUD HOSTING FMLive fuel management system is cloud based and hosted by Syn-Tech Systems. The FMLive services will be billed on an annual basis (Exception: Description Qty Price Extension UPG4725 FMU UPGRADE PROKEE/PROX UNIT 1 $7,644.00 $7,644.00 AIM TITANIUM 0 $398.00 $0.00 AIM TITANIUM X (DUAL TANK)0 $548.00 $0.00 NOZZLE TAGS (DIESEL)0 $98.00 $0.00 NOZZLE TAGS (UNL)0 $132.00 $0.00 PROGRAMMING TAG 0 $98.00 $0.00 144F0250 POWERVAR CONDITIONER KIT 1 $767.00 $767.00 MSI DISCOUNT ON FMU ($764.00) Equipment Sub Total $7,647.00 TAX 9.125% $697.79 STS CLOUD RELATED CHARGES FM LIVE SERVICES (CLOUD) ANNUAL 5 $2,400.00 $12,000.00 FM LIVE SETUP & ACTIVATION 1 $700.00 $700.00 PROJECT MANAGEMENT 1 $367.00 $367.00 DATA IMPORT and/or CONVERSION 1 $2,350.00 $2,350.00 CUSTOM EXPORT 0 $0.00 $0.00 MSI LABOR UPGRADE INSTALLATION 1 $3,495.00 $3,495.00 ON SITE ASSIST FOR CLOUD BASE SETUP 1 $1,695.00 $1,695.00 SHIPPING/FREIGHT COSTS (UPGRADE)1 $120.00 $120.00 System Grand Total $29,071.79 EXHIBIT A MSI FUEL MANAGEMENT, INC. P.O. Box 718, Vacaville, CA 95696 Phone (707)449-4550 This quote is based on 5 years of FMLive hosting). The FuelMaster unit will come equipped with a cell modem for network communications to the cloud. TRAINING Software training will be conducted via remotely by Syn Tech Systems. EXCEPTIONS Quote assumes all existing dispensers, pulsers and valves are in good working condition. Quote may change depending on specific customer requirements and needs. TERMS ➢ Delivery: 60 Days ➢ F.O.B.: Destination ➢ Terms: Net 30 Days ➢ Price Quote is valid 60 days from date of quote. Should any questions arise, please feel free to contact me. Sincerely, Trent Douglass Contract No. ________ Page 1 of 3 Rev. 7.26.23 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. The term Software Provider as set forth in this Exhibit B shall mean either the Software Provider, its Subcontractors, or its Subconsultants. 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 excess of Software Provider’s insurance and shall not contribute to it. Notice of Cancellation: Each insurance policy shall state that coverage shall not be canceled or 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 endorsed with 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 Contract No. ________ Page 2 of 3 Rev. 7.26.23 non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Agreement. Any umbrella or excess insurance 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 named insured. 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 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 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. 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 excess of 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, Cit y 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 Contract No. ________ Page 3 of 3 Rev. 7.26.23 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. 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 ENDORSEMENT CHANGES THE POLICY.PLEASE READ IT CAREFULLY. Countersigned by Authorized Representative Form WC 04 03 06 (1) Printed in U.S.A. Process Date:06/21/23 Policy Expiration Date:10/21/23 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA Policy Number:57 WEC DU7411 Endorsement Number:3 Effective Date:06/19/23 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address:MSI FUEL MANAGEMENT INC. 865 COTTING LN STE E VACAVILLE CA 95688 We have the right to recover our payments from anyone liable for an injury covered by this policy.We will not enforce our right against the person or organization named in the Schedule.(This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 %of the California workers'compensation premium otherwise due on such remuneration. SCHEDULE Person or Organization Job Description The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers. , 10300 TORRE AVE, CUPERTINO, CA, 95014 4 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ 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) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 7/26/2023 (850) 878-2121 (850) 878-2128 20281 SYN-TECH SYSTEMS, INC. 100 Four Points Way Tallahassee, FL 32305 20303 20346 22667 A 1,000,000 35881695 12/31/2022 12/31/2023 1,000,000 10,000 1,000,000 2,000,000 2,000,000 1,000,000B 73550690 12/31/2022 12/31/2023 15,000,000A 79854452 12/31/2022 12/31/2023 0 15,000,000 C 71704828 12/31/2022 12/31/2023 1,000,000 1,000,000 1,000,000 D Work Comp - Int'l D67247012005 12/31/2022 per statute 1,000,000 D Cyber Liability D96288608 12/31/2022 12/31/2023 3,000,000 Cupertino 10300 Torre Avenue Cupertino, CA 95014 SYN-SYS-01 JULIE Earl Bacon Agency, Inc. Post Office Box 12039 Tallahassee, FL 32317 Federal Insurance Company Great Northern Insurance Company Pacific Indemnity Company Ace American Insurance Company Prod/COps X 12/31/2023 X X X X X X X POLICY NUMBER: COMMERCIAL AUTO CA 20 48 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CA 20 48 10 13 Insurance Services Office, Inc., 2011 Page 1 of 1 DESIGNATED INSURED FOR COVERED AUTOS LIABILITY COVERAGE This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are ‘‘insureds’’ for Covered Autos Liability Coverage under the Who Is An Insured provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Named Insured: Endorsement Effective Date: SCHEDULE Name Of Person(s) Or Organization(s): Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Each person or organization shown in the Schedule is an ‘‘insured’’ for Covered Autos Liability Coverage, but only to the extent that person or organization qualifies as an ‘‘insured’’ under the Who Is An Insured provision contained in Paragraph A.1. of Section II ---- Covered Autos Liability Coverage in the Business Auto and Motor Carrier Coverage Forms and Paragraph D.2. of Section I ---- Covered Autos Coverages of the Auto Dealers Coverage Form. (22)7355-06-90 WHERE REQUIRED BY WRITTEN CONTRACT. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 12-31-22 Policy No. 71704828 Endorsement No. Insured SYN-TECH SYSTEMS, INC.Premium $ Incl. Insurance Company Pacific Indemnity Company Countersigned By WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 4-84) WC 00 03 13 (Ed. 4-84) © 1983 National Council on Compensation Insurance. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule PERSONS OR ORGANIZATIONS THAT YOU ARE OBLIGATED, PURSUANT TO A CONTRACT OR AGREEMENT TO PROVIDE WITH SUCH INSURANCE AS IS AFFORDED BY THIS POLICY. For policies or exposure in Missouri: Any person or organization for which the employer has agreed by written contract, executed prior to loss, may execute a waiver of subrogation. However, for purposes of work performed by the employer in Missouri, this waiver of subrogation does not apply to any construction group of classifications as designated by the waiver of right to recover from others (subrogation) rule in our manual. Producer Copy ?? ?? ?? ???? ? ,-6?%1$356%0%17?03$-(%6?-1685!1#%?4539-$%$?81$%5?7,%?)//3;-1+ ? ?? ?? ?? ?? ?? ? ?? ? ?? ? ? ?? -7,?5%64%#7?73?7,%?#39%5!+%?4539-$%$?"<?7,-6?%1$356%0%17?7,%?4539-6-316?3&?7,%? 39%5!+%?350? !44/<?81/%66?03$-(%$?"<?7,-6?%1$356%0%17? ? !0%?3&?%56316?35?5+!1-=!7-316 ? ERISSUEDCERTIFICATE 1$%5? 30031?3/-#<? 31$-7-316?7,%?)//3;-1+?#31$-7-31?-6?!$$%$ ? ,%1?:%?#!1#%/?7,-6?43/-#<?:%?;-//?137-*?7,%?4%56316?35?35+!1-=!7-316?$%6#5-"%$?-1?7,%? ?!7?/%!67??$!<6??$!<6?-1?7,%?%9%17?3&?1314!<0%17?3&?45%0-80?-1?!$9!1#%?3&?7,%? #!1#%//!7-31?$!7%? 1<?'-/85%?"<?86?73?137-*?68#,?4%56316?35?35+!1-=!7-316?;-//?137 ? >0436%?!1<?/-!"-/-7<?35?3"/-+!7-31?3&?!1<?.-1$?8431?86 ?35 >2!/-$!7%?68#,?#!1#%//!7-31 FM Live SaaS Agreement Final Audit Report 2023-07-31 Created:2023-07-31 By:Marilyn Pavlov (marilynp@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAu2XESwM-SYFfApuW-8bZSaB7yyvpWwth "FM Live SaaS Agreement" History Document created by Marilyn Pavlov (marilynp@cupertino.org) 2023-07-31 - 6:36:54 PM GMT- IP address: 64.165.34.3 Document approved by Marilyn Pavlov (marilynp@cupertino.org) Approval Date: 2023-07-31 - 6:39:39 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-07-31 - 6:39:41 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-07-31 - 9:55:51 PM GMT - Time Source: server- IP address: 71.204.144.228 Document emailed to trentdouglass@comcast.net for signature 2023-07-31 - 9:55:53 PM GMT Email viewed by trentdouglass@comcast.net 2023-07-31 - 10:38:18 PM GMT- IP address: 104.6.24.122 Signer trentdouglass@comcast.net entered name at signing as Trent Douglass 2023-07-31 - 10:44:02 PM GMT- IP address: 104.6.24.122 Document e-signed by Trent Douglass (trentdouglass@comcast.net) Signature Date: 2023-07-31 - 10:44:04 PM GMT - Time Source: server- IP address: 104.6.24.122 Document emailed to christopherj@cupertino.org for signature 2023-07-31 - 10:44:06 PM GMT Email viewed by christopherj@cupertino.org 2023-07-31 - 10:45:52 PM GMT- IP address: 104.47.74.126 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-07-31 - 10:46:07 PM GMT- IP address: 136.24.22.111 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-07-31 - 10:46:09 PM GMT - Time Source: server- IP address: 136.24.22.111 Document emailed to Teri Gerhardt (terig@cupertino.org) for signature 2023-07-31 - 10:46:11 PM GMT Email viewed by Teri Gerhardt (terig@cupertino.org) 2023-07-31 - 11:00:39 PM GMT- IP address: 104.47.74.126 Document e-signed by Teri Gerhardt (terig@cupertino.org) Signature Date: 2023-07-31 - 11:01:03 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-07-31 - 11:01:04 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-07-31 - 11:09:11 PM GMT- IP address: 104.47.74.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-07-31 - 11:09:35 PM GMT - Time Source: server- IP address: 67.188.176.248 Agreement completed. 2023-07-31 - 11:09:35 PM GMT