HomeMy WebLinkAboutADS Corp. Consultant Agreement - 12-01-2022UVUU,Dl lI CI IVCIupt: IV. our I0OG0-0GU/-Y0.7.7-5/li U-V lil UUUUVNJ I/A
C O R P.
Sarah Aguila
City of Fresno
2600 Fresno Street
Fresno, CA 93721
Subject: Sewer Flow Monitoring Agreement Extension
Dear Sarah,
ENVIRONMENTAL
SERVICES `
17 November 2022
We are pleased to confirm that ADS Corp., DBA ADS Environmental Services, is agreeable to extend the City of
Fresno and ADS Corp. contract dated 11/15/2018 for an additional 12-months effective December 1, 2022.
Per the terms of the agreement, we are adding a CPI increase of 5.0% (bis.gov) for this extension.
ADS I -Site Program: Sib Year (reference p.15)
ADS Comprehensive Turn -Key Service:
Maintenance, Parts, Data Collection, Web Hosting, Cellular Fees, Data Review, Data Finalization.
Price per meter per month: $649 x
Months: 12 x
Meters:- -- 21_
TOTAL: = $163,S48
Optional Items Year S Contract Extension = Year 4 Price + CPI Increase (reference p. 16)
• Emergency Mobilization Fee = $2,500.00
Temp Flow Monitoring Services (14-Day Study)
0 1st Site: = $3,500
o Additional sites:= $2,750
0 14-day monitoring extension: $560/ meter/ 2-Weel
■ ADS Depth Monitoring Services: Install $350 each. ATTEST:
0 1 Year Option = $199 / month/ ECHO TODD STERMER, CMC
0 2 Year Option= $149 / month/ ECHO
City PAFAKSLqrwd by:
Sincerely, 'ram, At. Nbw 12/8/2022
By:
�.r�GL•v_L Tina M. Your Date
Neil Volk
Business Development Manager
Authorized ADS Signatory:
Joseph J. Goustin, Treasurer, ADS Corp.
L iCo
by:
3(A193Gv86E438— - .
Signature
11/29/2022
Date
JGousrin@ id excorp. com
256-430-6418
Authorized City of Fresno Signatory:
Name:
QocuSignvd by:
D.
" �_
Signature
12/8/2022
Date
l
DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT is made and entered into effective the _ � r O day of
November, 2018, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as "CITY"), and ADS Corp., a Delaware Corporation (hereinafter referred
to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional technical services for flow meter
installation, maintenance, and data acquisition/upkeep, hereinafter referred to as the "Project;"
and
WHEREAS, CONSULTANT is engaged in the business of furnishing services as a flow
meter technical service and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be administered for CITY by its Director of Public
Utilities (hereinafter referred to as "Director") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and promises hereinafter contained to be kept and performed by the respective parties, it is
mutually agreed as follows:
1. Scope of Services. CONSULTANT shall perform to the satisfaction of CITY the
services described in Exhibit A, including all work incidental to, or necessary to perform, such
services even though not specifically described in Exhibit A.
2. Terra of _Agreement and Time for Performance. This Agreement shall be
effective from the date first set forth above and shall continue in full force and effect through the
earlier of complete rendition of the services hereunder or 11/01121, subject to any earlier
termination in accordance with this Agreement. The services of CONSULTANT as described in
Exhibit A are to commence upon CITY'S issuance of a written "Notice to Proceed." Work shall
be undertaken and completed in a sequence assuring expeditious completion, but in any event,
all such services shall be completed within 365 consecutive calendar days from such
authorization to proceed.
3. Compensation.
(a) CONSULTANT'S sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total fee of One Hundred
Fifty -One Thousand Two Hundred Dollars ($151,200). Such fee includes all expenses incurred
by CONSULTANT in performance of the services.
(b) Detailed statements shall be rendered monthly and will be payable in the
normal course of CITY business.
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(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement, which
modification shall include an adjustment to CONSULTANT'S compensation. Any change in the
scope of services must be made by written amendment to the Agreement signed by an
authorized representative for each party. CONSULTANT shall not be entitled to any additional
compensation if services are performed prior to a signed written amendment.
4. Termination Remedies and 1=orce Ma-eure.
(a) This Agreement shall terminate without any liability of CITY to
CONSULTANT upon the earlier of: (i) CONSULTANT'S filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party
against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to
CONSULTANT; (iii) CITY'S non -appropriation of funds sufficient to meet its obligations
hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Project;
or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all
of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and
all properties and materials in the possession of CONSULTANT that are owned by CITY.
Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be
paid for any work or services performed or costs incurred which reasonably could have been
avoided.
(c) In the event of termination due to failure of CONSULTANT to satisfactorily
perform in accordance with the terms of this Agreement, CITY may withhold an amount that
would otherwise be payable as an offset to, but not in excess of, CITY'S damages caused by
such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a
waiver by CITY of any breach of this Agreement which may then exist on the part of
CONSULTANT, nor shall such payment impair or prejudice any remedy available to CITY with
respect to the breach.
(d) Upon any breach of this Agreement by CONSULTANT, CITY may
(1) exercise any right, remedy (in contract, law or equity), or privilege which may be available to
it under applicable laws of the State of California or any other applicable law; (ii) proceed by
appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct
damages for the breach of the Agreement. If it is determined that CITY improperly terminated
this Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONSULTANT shall provide CITY with adequate written assurances of
future performance, upon Director's request, in the event CONSULTANT fails to comply with
any terms or conditions of this Agreement.
(f) CONSULTANT shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault
or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity,
fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of
common carriers. CONSULTANT shall notify Director in writing as soon as it is reasonably
possible after the commencement of any excusable delay, setting forth the full particulars in
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connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall
promptly give written notice to Director of the cessation of such occurrence.
5. Confidential Information Ownership of Documents and Copyright License.
(a) Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this Agreement shall not be made available to any individual or
organization by CONSULTANT without the prior written approval of CITY. During the term of
this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of
CITY, disclose to anyone any Confidential Information. The term Confidential Information for
the purposes of this Agreement shall include all proprietary and confidential information of CITY,
including but not limited to business plans, marketing plans, financial information, designs,
drawings, specifications, materials, compilations, documents, instruments, models, source or
object codes and other information disclosed or submitted, orally, in writing, or by any other
medium or media. All Confidential Information shall be and remain confidential and proprietary
in CITY.
(b) Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings and other documents prepared or
provided by CONSULTANT pursuant to this Agreement are the property of CITY at the time of
preparation and shall be turned over to CITY upon expiration or termination of the Agreement or
default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such
drawings and writings. CONSULTANT shall not permit the reproduction or use thereof by any
other person except as otherwise expressly provided herein. CITY may modify the design
including any drawings or writings. Any use by CITY of the aforesaid sketches, tracings, plans,
computations, specifications, computer disk files, writings and other documents in completed
form as to other projects or extensions of this Project, or in uncompleted form, without specific
written verification by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and
specifications for its sole and exclusive use.
(c) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
6. Professional Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and
its subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under
this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and
perform such services in a skillful manner and CONSULTANT agrees to thus perform the
services and require the same of any subcontractors. Therefore, any acceptance of such
services by CITY shall not operate as a release of CONSULTANT or any subcontractors from
said professional standards.
7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall
indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents
and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury, death at
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any time and property damage), and from any and all claims, demands and actions in law or
equity (including reasonable attorney's fees and litigation expenses) to the extent they arise out
of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSULTANT,
its principals, officers, employees, agents or volunteers in the performance of this Agreement.
If CONSULTANT should subcontract all or any portion of the services to be performed
under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and volunteers
in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, CONSULTANT shall pay for and
maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into
and part of this Agreement, with an insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California and rated no less than "A-VII"
in the Besfs Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk
Manager or his/her designee at any time and in his/her sole discretion. The required policies of
insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts
stated therein. However, the insurance limits available to CITY, its officers, officials, employees,
agents and volunteers as additional insureds, shall be the greater of the minimum limits
specified therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, all services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to CONSULTANT shall be
withheld until notice is received by CITY that the required insurance has been restored to full
force and effect and that the premiums therefore have been paid for a period satisfactory to
CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to
terminate this Agreement. No action taken by CITY pursuant to this section shall in any way
relieve CONSULTANT of its responsibilities under this Agreement. The phrase "fail to maintain
any required insurance" shall include, without limitation, notification received by CITY that an
insurer has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
(c) The fact that insurance is obtained by CONSULTANT shall not be
deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability
under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT.
Approval or purchase of any insurance contracts or policies shall in no way relieve from liability
nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under
the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall require each subcontractor/sub-
consultant to provide insurance protection, as an additional insured, to the CITY and each of its
officers, officials, employees, agents and volunteers in accordance with the terms of this
section, except that any required certificates and applicable endorsements shall be on file with
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CONSULTANT and CITY prior to the commencement of any services by the subcontractor.
CONSULTANT and any subcontractor/sub-consultant shall establish additional insured status
for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service
Office (ISO) Form CG 20 10 04 13 or both CG 20 10 04 13 and CG 20 37 04 13 or by an
executed manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 04 13.
9. Conflict of Interest and Non -Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONSULTANT shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth in
Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and
duty to immediately notify CITY in writing of any change to the information provided by
CONSULTANT in such statement.
(b) CONSULTANT shall comply, and require its subcontractors to comply,
with all applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and
regulations including, without limitation, California Government Code Section 1090 et. seq., the
California Political Reform Act (California Government Code Section 87100 et. seq.), the
regulations of the Fair Political Practices Commission concerning disclosure and disqualification
(2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno
Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY,
CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full
compliance with all laws and regulations. CONSULTANT shall take, and require its
subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon
discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall
immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder,
CONSULTANT shall not employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or
similar CITY body. This requirement may be waived in writing by the City Manager, if no actual
or potential conflict is involved.
(d) CONSULTANT represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither CONSULTANT, nor any of CONSULTANT'S subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of a bid
for, or perform any services pursuant to, any other contract in connection with this Project.
CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City Manager, in
advance and in writing.
(f) If CONSULTANT should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, CONSULTANT shall include the
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provisions of this Section 9 in each subcontract and require its subcontractors to comply
therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.
10. Recycling Program. In the event CONSULTANT maintains an office or operates
a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of
the City of Fresno, CONSULTANT at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling program,
approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available from CITY'S
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(ii) Immediately contact CITY'S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of
CITY within the body of this Agreement, and not otherwise specifically provided for, shall be
effective only if signed by the Director or his/her designee.
(b) Records of CONSULTANT'S expenses pertaining to the Project shall be
kept on a generally recognized accounting basis and shall be available to CITY or its authorized
representatives upon request during regular business hours throughout the life of this
Agreement and for a period of three years after final payment or, if longer, for any period
required by law. In addition, all books, documents, papers, and records of CONSULTANT
pertaining to the Project shall be available for the purpose of making audits, examinations,
excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations,
audit or other action is commenced before the expiration of said time period, all records shall be
retained and made available to CITY until such action is resolved, or until the end of said time
period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the
services to be performed under this Agreement, CONSULTANT shall cause each subcontractor
to also comply with the requirements of this paragraph. This Section 11(b) shall survive
expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by CITY, CONSULTANT shall have
provided evidence to CITY that CONSULTANT is licensed to perform the services called for by
this Agreement (or that no license is required). If CONSULTANT should subcontract all or any
portion of the work or services to be performed under this Agreement, CONSULTANT shall
require each subcontractor to provide evidence to CITY that subcontractor is licensed to
perform the services called for by this Agreement (or that no license is required) before
beginning work.
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12. Nondiscrimination. To the extent required by controlling federal, state and local
law, CONSULTANT shall not employ discriminatory practices in the provision of services,
employment of personnel, or in any other respect on the basis of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam
era. Subject to the foregoing and during the performance of this Agreement, CONSULTANT
agrees as follows:
(a) CONSULTANT will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded
from participation in, be denied the benefits of, or be subject to discrimination under any
program or activity made possible by or resulting from this Agreement.
(b) CONSULTANT will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran or veteran of the Vietnam era. CONSULTANT shall ensure that
applicants are employed, and the employees are treated during employment, without regard to
their race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Such requirement shall apply to CONSULTANT'S
employment practices including, but not be limited to, the following: employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship.
CONSULTANT agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this nondiscrimination clause.
(c) CONSULTANT will, in all solicitations or advertisements for employees
placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will
receive consideration for employment without regard to race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) CONSULTANT will send to each labor union or'representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of CONSULTANT'S commitment under
this section and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(e) If CONSULTANT should subcontract all or any portion of the services to
be performed under this Agreement, CONSULTANT shall cause each subcontractor to also
comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, CONSULTANT is
acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers,
agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or
associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the
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manner or method by which CONSULTANT shall perform its work and functions. However,
CITY shall retain the right to administer this Agreement so as to verify that CONSULTANT is
performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY'S
express written consent. Except to the extent otherwise provided in this Agreement,
CONSULTANT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CONSULTANT and
its officers, agents and employees shall have absolutely no right to employment rights and
benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for
all payroll and tax withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. In addition,
together with its other obligations under this Agreement, CONSULTANT shall be solely
responsible, indemnify, defend and save CITY harmless from all matters relating to employment
and tax withholding for and payment of CONSULTANT'S employees, including, without
limitation, (i) compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and regulations governing
matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in
CITY employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co -employee rights or other
theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be
providing services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by
United States registered or certified mail, with postage prepaid, return receipt requested,
addressed to the party to which notice is to be given at the party's address set forth on the
signature page of this Agreement or at such other address as the parties may from time to time
designate by written notice. Notices served by United States mail in the manner above
described shall be deemed sufficiently served or given at the time of the mailing thereof.
15. 8016ina. Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees and
representatives.
16. Assignment.
(a) This Agreement is personal to CONSULTANT and there shall be no
assignment by CONSULTANT of its rights or obligations under this Agreement without the prior
written approval of the City Manager or his/her designee. Any attempted assignment by
CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by
the City Manager or his/her designee.
(b) CONSULTANT hereby agrees not to assign the payment of any monies
due CONSULTANT from CITY under the terms of this Agreement to any other individuai(s),
corporation(s) or entity(ies). CITY retains the right to pay any and all monies due
CONSULTANT directly to CONSULTANT.
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17. Compliance With Law. In providing the services required under this Agreement,
CONSULTANT shall at all times comply with all applicable laws of the United States, the State
of California and CITY, and with all applicable regulations promulgated by federal, state,
regional, or local administrative and regulatory agencies, now in force and as they may be
enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision of
this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Agreement. No provisions of this Agreement may
be waived unless in writing and signed by all parties to this Agreement. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for
purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is
the result of the combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this
Agreement in favor of or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
23. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing
party in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this
Agreement shall control and take precedence over the terms and conditions expressed within
the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or
Attachment hereto which purport to modify the allocation of risk between the parties, provided
for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third Pam Beneficiaries. The rights, interests, duties and obligations defined
DPU ADS Corp. Total Fee 09-26-18
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within this Agreement are intended for the specific parties hereto as identified in the preamble of
this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any third
parties.
28. Extent of Acireement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations or agreements, either written or oral. This
Agreement may be modified only by written instrument duly authorized and executed by both
CITY and CONSULTANT.
DPU ADS Corp. Total Fee 09-26-18
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
Michael Car alai,
Director
Department of Public Utilities
APPROVED AS TO FORM:
City Attalzse�+'s Office
By:
manda Freeman ❑ate
Senior Deputy City Attorney
ADS Corp.,
a Del@ ar
By:
Name:
Title:
/-1%1 g By:
@
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By. cvno{.�
Deputy
RE-VIE5-D BY:
Sarah Aguila, Supdrvising Engineering
Technician
Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Sarah Aguila,
Supervising Engineering Technician
2101 G. St., Bldg A
Fresno, CA 93706
Phone: (559) 621-1615
FAX: (559) 498-4126
Title: .
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Secretary)
Any Applicable Professional License:
Number:
Name:
Date of Issuance:
CONSULTANT:
ADS Corp.
Attention: Rob Larson,
Business Development Manager
3447 Investment Blvd., Suite #5
Hayward, CA 94545
Phone: 858-210-5387
FAX:
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DPU ADS Corp. Total Fee 09-26-18
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DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
Exhibit A
SCOPE OF SERVICES
Consultant Service Agreement between City of Fresno ("City")
and ADS Corp. ("Consultant")
Sewer Ffow Monitorinci Maintenance and Repair Services
PROJECT TITLE
Scope of Work
Background: ADS has been providing the City of Fresno (City) sewer flow monitoring
maintenance and repair services on the City owned twenty-one (21) ADS Triton wireless flow
monitors on a quarterly schedule for many years. The City has performed data collection, data
editing, data finalization, and reporting to the appropriate City departments for modelling and
billing purposes. This arrangement was. agreed upon primarily due to the City's budget
constraints and the ability of ADS to control mobilization costs by only visiting the sites on a
quarterly schedule. The combination of upgrading the flow monitors (City purchased), adding
redundant sensors, and increased communication reliability, the flow monitoring data has
improved over the last contract period, but not to the levels required for accurate model
calibration and billing purposes where millions of dollars are billed to member agencies per year.
Strategy Moving Forward: ADS with the City input has developed a multi -pronged strategy to
increase data quality, data availability, data viewing, and opt in to ADS' flow meter technology
protection program called I -Site. The major changes proposed are as follows; ADS will mobilize
as needed instead of quarterly for site maintenance, ADS will take over the data
analysis/finalization processes, ADS will provide our FlowView Web -Data Delivery Service, and
ADS will return —21 used flow meters to the City to comply regulations. There are two main
advantages of ADS suppling the flow meters, 1) as the currently installed flow meters become
obsolete due to wireless communication turn -down, or end of life of our product line, ADS will
upgrade the monitors to the latest technology to ensure system is always up-to-date, 2) by ADS
owning the flow monitors, the recent CA DIR Prevailing Wage regulations do not apply due to the
fact ADS is not maintaining the City owned infrastructure, instead we are delivering data for
model calibration and billing purposes. This is the approach the vast majority of our California
flow metering clients have taken.
ADS Corp ("ADS") will perform a long term sewer flow -monitoring services to the City of Fresno,
CA (City) in four phases. These phases are described as follows:
Phase I — Initial Project Management
1) If requested, a Kick-off meeting between representatives of the City and ADS will be
scheduled. The purpose of the kick-off meeting is to discuss project scope, establish
lines of communication, set milestones, and set the project schedule.
2) ADS will setup FlowView website for the twenty-one (21) flow monitors. If the City would
like to import historical data into FlowView, the City will forward the Profile Database(s) to
ADS.
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Phase II — Mobilization
1) ADS crew(s) will mobilize on an "as -needed" schedule to perform routine maintenance and
corrective actions to ensure 90% system -wide uptime.
Phase III — Flow Monitoring
1) Preventative Maintenance. ADS is an ISO 9001 certified company and has proprietary
internal quality procedures for all fieldwork. During the course of the project and as part of
ADS' quality control program, the field manager will also visit each location and reconfirm
that the monitor is in proper working condition. This includes cleaning or replacing depth
and velocity sensors, and performing hydraulic confirmations as needed.
2) Maintenance Services. ADS will provide services for the flow monitors, involves
troubleshooting the common faults that are repairable in the field. More complex
problems are left to trained electronic technicians. Common service problems are sensor
scrubs, battery changes, and internal board replacements. ADS is responsible for all
Cellular SIM Fees.
Upgrades. ADS' I -Site program where ADS provides Turnkey services, including
equipment upgrades and all spare parts. We call this "Technology Protection". As part of
ADS' I -Site program, ADS will replace units that are nearing end of life with new
technology being released to the marketplace at no cost to the City.
Phase IV — Data Collection, Data Processing and Reporting
1) Data Collection: The flow monitoring system shall automatically collect data from all
telemetered flow meter sites at a minimum each day and whenever an alarm occurs. In
addition, the system shall have the ability to issue a data collection command in order to
obtain data in near real time. Twice -weekly Data Review shall be performed by ADS to
ensure that the equipment is operational and properly logging data.
2) Data Quality: ADS shall be expected to provide valid data points each calendar month.
Valid data points are defined as final data that accurately reflects the hydraulic conditions
present where the sensors are installed and is not skewed or inaccurate due to debris,
misreading sensors, or other problems.
3) Monthly Data Analysis: During the monitoring period, data will be analyzed by ADS and
reported to the City on a monthly basis. Data Analysis shall be performed by an analyst
with a minimum of two (2) years of direct experience. Final flow monitoring data will be
reviewed and confirmed by an analyst with a minimum of 10 years' experience. The
monthly analysis will consist of calculating flow at each monitoring location, plotting the
flow data, and analyzing depth vs. velocity scattergraphs to evaluate monitor accuracW
Finalized flow datasets shall be posted for the previous month to the website by the 15
of the following month.
4) Web Data Delivery: ADS shall supply a software system that is accessible using
Microsoft® Internet Explorer version 10.0 or greater and available to any personnel
requiring access. ADS shall host all data in a central database to ensure that any
modifications to the central data are available to all other users of the system. The
software system shall have unique password security for each user. Each user shall be
DPU ADS Corp. Total Fee 09-26-18
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permitted to perform only authorized functions that can be restricted by permissions.
These functions shall include, at a minimum, alarm acknowledgement, reporting, viewing
specific data types, viewing data and information from specified locations,
telecommunications, and any system configuration (such as adding new users). The
software system shall allow for the upload of final edited data and shall maintain a copy of
both the final and the original data after each upload. The system shall support the
following types of configurable reports:
• Hydrograph — a time series graph of multiple data types with the ability to
segment data based on intervals (e.g. "weekly") over the user specified time
period;
• Scattergraph — a depth to velocity graph for the specified time period with the
ability to select a data point to see the actual value for that data point;
• Tabular — both tables for viewing and a CSV format for download shall be
available.
• Uptime Chart — a chart to view and evaluate the amount of data available for
each day for single or multiple data entities for single or multiple monitors
• Alarm report providing information about all alarms generated by the monitoring
system including alarm type, alarm status and users who have acknowledged
the alarms;
• Confirmations report providing a list of manual measurements taken at a
monitoring location within a specific date range;
• Data Collect Summary report providing the number of successful and failed
attempts and the percentage of successful attempts to collect the data from
selected monitoring locations;
• Capacity trend reports indicating the average and maximum capacity used for
each monitoring location for the last 24-hours, compared with a user specified
time range, as a percentage of the theoretical capacity for each site;
■ Surcharge trend reports indicating the percentage of time that each site was in
a surcharge condition (depth greater than full pipe) over the last 24 hours, past
30 days or past 90 days, compared with a user specified time range; and
• Percentage -full trend reports indicating percentage of full pipe trending over the
last 24 hours, 30 days or past 90 days, compared with a user specified time
range.
All flow meter data shall be available to view and export electronic data in Microsoft Excel
format from a website provided by ADS for a date range entered by the user. ADS shall
conduct a customer training on website navigation and features, including report
generation.
Contingent Scope of Services
As part of this agreement, ADS is offering the City our other services we offer; temporary sewer
flow monitoring services, rain gauging, RDI/I Analysis, and our newest offering, ADS ❑-Site
SSO/Depth monitoring program. It is assumed mobilization for any of these services will be in
conjunction with our flow monitoring services. Pricing for these services will be agreed upon
based upon the exact scope of services the City is requesting.
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DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
City of Fresno's Responsibilities:
The City will perform the following functions in connection with this Project:
1) Access to the site of work with sufficient area for placement of personnel and
equipment, including all right-of-way and ramps, if required. This includes, but is
not limited to exposing manholes and clearing easements.
2) Help with Traffic Control at Sites at two locations, ADS will give ample notice to
the City.
3) Pay all local licenses and permits fees.
4) Assist in obtaining and complying with any special permits.
5) If sewer line is dirty and fill of debris, ensure that selected sites have been jet
cleaned to minimize hydraulic deficiencies or select an alternate location.
6) Any known information concerning bypasses, overflows, base flows, critical
surcharge areas, and maintenance habits.
ADS I -Site Program, Sewer Flow Monitors Fee Schedule (Non Prevailing Wage Rate):
Description
# of
I Price/Meter
I Yearly Fee
ADS FlowView Site Setup Fee
21
$ 240.00
$ 5,040.00
ADS I -Site Program: 1st Year Full Service / Turn -Key
Service, includes Maintenance, Parts, Data Collection,
21
$ 6,960.00
$
Web Hosting, Cellular Fees, Data Review, Data
146,160.00
Finalization. $580.00 per/meter/month.
Year 1 Total Fee $ 151,200.00
ADS I -Site Program: 2nd Year Full Service / Turn -Key
Service, includes Maintenance, Parts, Data Collection,
21
$ 7,200.00
$ 151,200.00
Web Hosting, Cellular Fees, Data Review, Data
Finalization. $600.00 per/meter/month.
ADS I -Site Program: 3rd Year Full Service / Turn -Key
Service, includes Maintenance, Parts, Data Collection,
21
$ 7,200.00
$ 151,200.00
Web Hosting, Cellular Fees, Data Review, Data
Finalization. $600.00 per/meter/month.
3-Year Base Contract Value: $453,600.00
DPU ADS Corp 9-26-18
DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
Optional Items
Year 4 Contract Extension = Year 3 Price + CPI Increase
Year 5 Contract Extension = Year 4 Price + CPI Increase
Emergency Mobilization Fee = $2,500.00
Temp Flow Monitoring Services for a 14 Day Study: 1st Site= $3,500, additional sites
at $2,750 Each. 14 day monitoring ext = $560 Per/Meter/2-Weeks
ADS Depth Monitoring Services: Install = $350 Each. 1 Year Option = $199
per/month/ECHO, 2 Year Option = $149 per/month/ECHO
DPU ADS Corp 9-26-18
DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
Exhibit B
INSURANCE REQUIREMENTS
Consultant Service Agreement between City of Fresno ("CITY")
and ADS Corp. ("CONSULTANT")
Sewer Flow Monitoring Maintenance and Repair Services
PROJECT TITLE
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on
an occurrence form and shall provide coverage for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for premises and
operations (including the use of owned and non -owned equipment), products and
completed operations, and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability not less than
those set forth under "Minimum Limits of Insurance."
The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non -owned automobiles or other licensed vehicles (Code 1- Any
Auto). If personal automobile coverage is used, the CITY, its officers, officials,
employees, agents and volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
CONSULTANT'S profession. Architect's and engineer's coverage is to be
endorsed to include contractual liability.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY, its
officers, officials, employees, agents and volunteers as additional insureds, shall be the greater
of the minimum limits specified herein or the full limit of any insurance proceeds available to the
named insured:
1. COMMECIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
DPU ADS Corp 9-26-18
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(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
OR*
PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not less
than:
(i) $100,000 per person;
(ii) $300,000 per accident for bodily injury; and,
(iii) $50,000 per accident for property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less
coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance
policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY,
its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self -
insured retentions. Any deductibles or self -insured retentions must be declared to on the
Certificate of Insurance, and approved by, the CITY'S Risk Manager or his/her designee. At the
option of the CITY'S Risk Manager or his/her designee, either:
0) The insurer shall reduce or eliminate such deductibles or self -insured
retentions as respects CITY, its officers, officials, employees, agents and
volunteers; or
(ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY'S
Risk Manager or his/her designee, guaranteeing payment of losses and
DPU ADS Corp 9-26-18
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DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
related investigations, claim administration and defense expenses. At no
time shall CITY be responsible for the payment of any deductibles or self -
insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed
to contain, the following provisions:
CITY, its officers, officials, employees, agents and volunteers are to be covered
as additional insureds. CONSULTANT shall establish additional insured status
for the City and for all ongoing and completed operations by use of ISO Form
CG 20 10 04 13 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed
manuscript insurance company endorsement providing additional insured status
as broad as that contained in ISO Form CG 20 10 04 13 or by such other ISO
Form as approved by the City.
2. The coverage shall contain no special limitations on the scope of protection
afforded to CITY, its officers, officials, employees, agents and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, CONSULTANT'S insurance coverage
shall be primary insurance with respect to the CITY, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance maintained
by the CITY, its officers, officials, employees, agents and volunteers shall be
excess of CONSULTANT'S insurance and shall not contribute with it.
CONSULTANT shall establish primary and non-contributory status by using ISO
Form CG 20 01 0413 or by an executed manuscript insurance company
endorsement that provides primary and non-contributory status as broad as that
contained in ISO Form CG 20 01 04 13 or by such other ISO Form as approved
by the City.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: CONSULTANT and its insurer shall waive any right of subrogation against
CITY, its officers, officials, employees, agents and volunteers.
If the Professional Liability (Errors and Omissions) insurance policy is written on a claims -made
form:
The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five (5) years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five (5) year discovery period.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a retroactive date prior to the effective date of the
Agreement or the commencement of work by CONSULTANT, CONSULTANT
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must purchase "extended reporting" coverage for a minimum of five (5) years
completion of the Agreement work or termination of the Agreement, whichever
occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for
review.
5. These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not
be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar
days written notice by certified mail, return receipt requested, has been given to CITY.
CONSULTANT is also responsible for providing written notice to the CITY under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation,
non -renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new
certificate and applicable endorsements for such policy(ies). In the event any policy is due to
expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less than fifteen (15)
calendar days prior to the expiration date of the expiring policy.
VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be received
and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the
Agreement and before work commences. All non -ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. Upon request of CITY,
CONSULTANT shall immediately furnish City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
DPU. ADS Corp 9-26-18
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DocuSign Envelope ID: C2D7768B-3B81-46C7-977E-6D94F42A2862
Exhibit C
DISCLOSURE OF CONFLICT OF INTEREST
Sewer Flow Monitoring_ Maintenance and Repair Services
PROJECT TITLE
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of its
❑
0'
agents?
2
Do you represent any firm, organization or person who is in
❑
�2`
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who do
❑
le'
business with the City of Fresno?
4
Are you or any of your principals, marl gers or professions ,,
owners or investors in a business which does business with the
❑
❑/'
City of Fresno, or in a business which is in litigation with the City of
Fresno?
5
Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who
❑
❑.r
has any significant role in the subject matter of this service?
6
Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
❑
0�
this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
❑ Additional page(s) attached.
14 1 1 Nr-W_
Signature
(name)
5 Cam.
(company)
S� d
(address)
(city state zip)