HomeMy WebLinkAboutUniversity of Chicago - Water Usage Patterns - 2016AGREEMENT
CITY OF FRESNO, CALIFORNIA
DATA SERVICES
THIS AGREEMENT is made and entered into effective the 13th day of January,
2016, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as "C|TY"), and The University of Chicago, and institute of
higher education (hereinafter referred to as "RECIPIENT").
RECITALS
WHEREAS, CITY desires to obtain insight into its water customers' usage
patterns for the purposes of increasing water efficient and water services; and
WHEREAS, RECIPIENT is engaged in conducting research for the purposes of
analyzing data to provide such insights into customers' usage patterns, and has
approached CITY requesting to use its water users' data for the limited purposes
outlined in Exhibit A, Data Use Agreement, attached, and subject to Exhibit D, Non-
Disclosure Agreement, also attached, hereinafter referred to as the "Project;" and
WHERAS, RECIPIENT will provide such services at no cost in exchange for the
right to use CITY's data; and
WHEREAS, this Agreement will be administered for CITY by its Director of Public
Utilities (hereinafter referred to as "Administrator") or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Scope of Services. RECIPIENT shall perform the services described in
Exhibit A, Scope of Services and Data Use Agreement.
2. Term of Aqreement and Time for Performance. This Agreement shall be
effective from the date first set forth above ("Effective Date") and shall continue in full
force and effect through 613012018, subject to any earlier termination in accordance with
this Agreement. The services of RECIPIENT as described in Exhibit A are to
commence upon the Effective Date and shall be completed in a sequence assuring
exped itious completion.
3. No Compensation. RECIPIENT agrees that it shall perform the services
set forth in Exhibit A at no cost to CITY, and that no compensation shall be owed to
RECIPIENT for any of the services rendered or to receive the products of the services.
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
may include an adjustment to RECIPIENT'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. RECIPIENT shall not be entifled to any
additional compensation if services are performed prior to a signed written amendment.
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4. Termination, Remedies and Force Majeure.
(a) This Agreement shall terminate without any liability of CITY to
RECIPIENT upon the earlier of: (i) 30 calendar days prior written notice with or without
cause by CITY to RECIPIENToT (ii) expiration of this Agreement.
(b) Upon any breach of this Agreement by RECIPIENT, CITY may
(i) 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 seek enforcement of the terms of the
Agreement; and/or (iii) seek to recover all direct, indirect, consequential, economic and
incidental damages for the breach of the Agreement. lf it is determined that CITY
improperly terminated this Agreement, such termination shall be deemed a termination
for convenience.
5. Confidential lnformation and Ownershio of Documents.
(a) Exhibit D, Non-Disclosure Agreement, is expressly incorporated in
to this Agreement and made a part thereof
(b) This Section 5 shall survive expiration or termination of this
Agreement as set forth in Exhibit D.
6. Professional Skill. lt is further mutually understood and agreed by and
between the parties hereto that inasmuch as RECIPIENT represents to CITY that
RECIPIENT is 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 RECIPIENT to do and perform such
services in a skillful manner and RECIPIENT agrees to thus perform the services.
7. lndemnification To the furthest extent allowed by law, RECIPIENT 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 any time and property damage), and from any and all third
party claims, demands and actions in law or equity (including reasonable attorney's fees
and litigation expenses) that directly arise out of the negligence, recklessness or willful
misconduct of RECIPIENT, its principals, officers, employees, agents or volunteers in
the performance of this Agreement.
This section shall survive termination or expiration of this Agreement.
8. lnsurance.
(a) Throughout the life of this Agreement, RECIPIENT shall maintain
its program of self-insurance which shall provide coverages in amounts and types
equivalent to those denoted in Exhibit B.
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(b) lf at any time during the life of the Agreement or any extension,
RECIPIENT or any of its subcontractors\sub-REC|PIENTs fail to maintain any required
insurance in full force and effect, all seruices and work under this Agreement shall be
discontinued immediately. 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 RECIPIENT 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 RECIPIENT shall not be
deemed to release or diminish the liability of RECIPIENT, 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 RECIPIENT. Approval or purchase of any insurance
contracts or policies shall in no way relieve from liability nor limit the liability of
REC I PI ENT.
L Conflict of lnterest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, RECIPIENT shall
complete a City of Fresno conflict of interest disclosure statement in the form as set
forth in Exhibit G. During the term of this Agreement, RECIPIENT shall have the
obligation and duty to immediately notify CITY in writing of any change to the
information provided by RECIPIENT in such statement.
(b) RECIPIENT 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 10g0 et.
seq., the California Political Reform Act (California Government Code Section 87100 et.
seq,) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations Section 18700 et.
seq.). At any time, upon written request of CITY, RECIPIENT shall provide a written
opinion of its legal counsel and that of any subcontractor that, after a due diligent
inquiry, RECIPIENT and the respective subcontractor(s) are in full compliance with all
laws and regulations. RECIPIENT 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, RECIPIENT shall
immediately notify CITY of these facts in writing.
(c) ln performing the work or services to be provided hereunder,
RECIPIENT 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,
a
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) RECIPIENT represents and certifies that it has not paid or agreed
to pay any compensation, contingent or othenruise, direct or indirect, to solicit or procure
this Agreement or any rights/benefits hereunder.
(e) RECIPIENT shall not 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 unless fully disclosed to and approved by the City Manager, in advance and in
writing. RECIPIENT 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 andin writing. Notwithstanding any approval given by the City Manager under this
provision, RECIPIENT shall remain responsible for complying with Section 9(b), above.
(f) This Section I shall survive expiration or termination of this
Agreement.
10. Nondiscrimination. To the extent required by controlling federal, state and
local law, RECIPIENT 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.
11. lndependentContractor.
(a) ln the furnishing of the services provided for herein, RECIPIENT is
acting solely as an independent contractor. Neither RECIPIENT, 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 manner or method by which RECIPIENT shall perform its work
and functions. However, CITY shall retain the right to administer this Agreement so as
to verify that RECIPIENT is performing its obligations in accordance with the terms and
conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between RECIPIENT and CITY. RECIPIENT shall have no authority to bind Clry
absent CITY'S express written consent. Except to the extent othenruise provided in this
Agreement, RECIPIENT shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, RECIPIENT
and its officers, agents and employees shall have absolutely no right to employment
rights and benefits available to CITY employees. RECIPIENT 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. ln addition, together with its other obligations under this
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Agreement, RECIPIENT shall be solely responsible for 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. lt is acknowledged that during the term of this Agreement, RECIPIENT
may be providing services to others unrelated to CITY or to this Agreement.
12. 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.
13. Bindinq. 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.
14. Assiqnment. This Agreement is personal to RECIPIENT and there shall
be no assignment by RECIPIENT 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 RECIPIENT, its successors or assigns, shall be null and void
unless approved in writing by the City Manager or his/her designee.
15. Compliance With Law. ln providing the services required under this
Agreement, RECIPIENT shall at all times comply with all applicable laws of the United
States 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.
16. 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.
17. Governino 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.
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18. Headinqs. 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.
19. 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.
20. lnterpretation. 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.
21. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
22. Precedence of Documents. ln 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.
23. 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.
24. No Third Partv Beneficiaries. The rights, interests, duties and obligations
defined 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.
25. Extent of Agreement. 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 RECIPIENT.
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lN WITNESS WHEREOF, the parties have executed this Agreement, at Fresno,
California, the day and year first aþove written.
WONNE SPENCE, CMC
City Clerk
DISCLOSING PARTY:
CITY OF FRESNO
a California municipal corporation
RECEIVING PARTY:
THE UNIVERSITY OF C
By: æ¡
\./¿lo\tc+.Lz
(.
APPROVED AS TO FORM
DOUGLAS T. SLOAN
u/tq /t ø
Deputy City Attorney
Addresses:
CITY:
City of Fresno
Attention: Thomas Esqueda
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8000
RECEIVING PARTY;
The University of Chicago
Attention:
Address:
Phone
Attachments:
1. Exhibit A - Scope of Services and Data Use Agreement
2. Exhibit B - lnsurance Requirements
3. Exhibit C - Conflict of lnterest Disclosure Form
4. Exhibit D - Non-Disclosure Agreement
Exhibit A
SCOPE OF SERVIGES and DATA USE AGREEMENT
RECIPIENT hereto desires to make the technical and professional services of
University of Chicago's Urban Energy and Environment Labs available to the ClTy to
review, evaluate, and analyze the CITY's hourly water meter data, as well as other
data, for approximately 130,000 accounts (the "Transaction"). The parties have
mutually agreed upon the analyses that are to be conducted, and the analyses to be
conducted are defined in this DUA.
During this Transaction, the CITY will provide certain proprietary information to
RECIPIENT. Therefore, in consideration of the mutual promises and covenants
contained in this DUA, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Confidential lnformation
a. CITY agrees to transfer to RECIPIENT the following (hereinafter
"Confidential I nformation") :
i. Water Account Data;
ii. Hourly Water Meter Data by Account;
iii. Water Rebate Program Data by Account;
iv. Parcel Data for properties served by the city of Fresno; and
v. This data is classified as ldentifiable. For the purposes of this
Agreement, ldentifiable means the data will be attached to a readily
available subject identifier such as a name, address, parcel number,
telephone number, email, etc.
b. The CITY represents and warrants that they have the legal authority to
share the data with RECIPIENT for the Transaction,
c. ln order to respect the privacy of the water accountholders, the RECIPIENT
agrees that it will not contact or make any effort to identify individuals,
families, communities, or populations which are or maybe the sources of
the Confidential lnformation.
2. Transaction
a. RECIPIENT will use the Confidential lnformation solely for the uses
outlined below (the "Transaction"):
i. To identify statistically-valid water use patterns, trends, correlations,and relationships using the Disclosing Party's hourly water
consumption data for the period Jan 1 ,2013 through December 31,
2015, and the following data sets:
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b.
1. Geographic data (zip code, council district, census
tracts/blocks, non-municipal areas, etc.);
2. Demographic data (age, income, ethnicity, etc.);
3. Climate data (temperature, precipitation, humidity, etc.);
4. Parcel data (parcel type, parcel size, age of structures, size of
structures, etc.); and
5. Water Efficiency Rebate Data (type of rebate, date of rebate,
value of rebate, date appliance installed (if possible), etc.).
i¡. To identify statistically-valid compliance patterns, trends,
correlations, and relationships for the Disclosing Party's alternate-
day outdoor watering schedule data (three-day per week, two-day
per week, and one-day per week) using (i)1 through (i)5 data sets
(i.e. which types of accounts have the greatest compliance rate and
the least compliance rate);
¡i¡. To identify statistically-valid utilization patterns, trends, correlations,
and relationships for the Disclosing Party's water rebate program
data (see attached map) using (i)1 through (i)5 data sets (ex. which
type of accounts use rebates the most, and which accounts use
rebates the least);
iv. To assess the impact on single-family residential water consumption
based on recent changes in water rates. Within the period of record
considered for this Transaction, rate changes have occurred on
September 2013, August 2014, March 2015, and July 2015 (ex.
which type of accounts showed the greatest response to rate
changes, and which type of accounts showed little, to no response
to rate changes);
v. To identify apparent causal factors driving water use patterns in the
Disclosing Party's service area (geography, demographics, climate,
parcel type and size, etc.); and
vi. To design a survey instrument that can be used to validate and
confirm the apparent causal factors for differences in water use
identified by the data analysis.
The Confidential lnformation shall be used solely for the Transaction
described herein. RECIPIENT agrees it will only conduct the research and
analyses which have been approved by the clTY. RECIPIENT agrees to
comply with all Federal rules and regulations applicable to the Transaction
and the handling of the Data.
All of the services to be provided by RECIPIENT shall be performed at no
cost to the CITY. The CITY's sole responsibilities is to:
i. Provide Confidential lnformation as described herein;
c.
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ii. To review work products developed by the Receiving Party in a
timely manner; and
iii. To prepare and submit written comments on work products
developed by the Receiving Party in a timely manner.
d. RECIPIENT will consider the City's requested additions, deletions, and
other changes to work products developed by RECIPIENT in good faith.
3. Non-Disclosure of Confidential lnformation
a. The additional terms and conditions associated with disclosure limitations,
prohibitions, and restrictions for Confidential lnformation provided by the
CITY have been established and agreed upon by the parties in Exhibit D,
Non-Disclosu re Agreement.
b. Receiving Party acknowledges and agrees that all information and data
provided by the Disclosing Party is Confidential lnformation, unless
othen¡vise noted, and shall not be disclosed, released, cited, or used by the
Receiving Party without receiving prior written consent from the Disclosing
Party.
c. The RECIPIENT and its employees shall have the right, consistent with
academic standards, to publish the results of research performed under this
Agreement, provided such publication does not disclose the Confidential
lnformation of Company. RECIPIENT agrees that, prior to submission of a
manuscript describing the results for publication, RECIPIENT shall fonruard
to the CITY a copy of the manuscript to be submitted and shall allow the
CITY thirty (30) days for review and comment and to determine whether a
patent application or other intellectual property protection should be sought
prior to publication in order to protect the City's proprietary interest in any
product or invention developed in connection with this project. RECIPIENT
grants CITY a non-exclusive, nontransferable, fully-paid up license, solely for
noncommercial purposes, for a period of five (5) years, to any invention
covered by such patent application. ln addition, with reasonable justification,
RECIPIENT agrees to withhold such publication an additional sixty (60)
days, if required, to obtain patent protection. CITY will have the right to
request deletion of any Confidential lnformation. Further, RECIPIENT agrees
to consider all comments from the City in good faith. RECIPIENT also
agrees not to publish individually identifiable information. Further, if during
the above publication review period by CITY, the CITY requests RECIPIENT
not to specifically reference The City of Fresno as the data source under this
Agreement, RECIPIENT shall comply with such request. Notwithstanding the
foregoing, RECIPIENT may still reference that the data originates from one
of the United States' top 100 most populations cities, located in the State of
California and/or the Western Region of the United States. The Confidential
lnformation provided for this Transaction represents a significant
investment on the part of the CITY and is considered proprietary to the
CITY. RECIPIENT therefore agrees to retain control over Confidential
lnformation and further agrees not to transfer the Confidential lnformation
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to other parties not under the direct supervision and control of the
Receiving Party.
d. The City reserves the right to distribute the resulting information and data
developed by the RECIPIENT under this Agreement ("Study Results") to
other parties and to use it for its own purposes.
e. ALL STUDY RESULTS ARE PROVIDED ,.AS IS,' WITHOUT WARRANTY
OF ANY KIND AND RECIPIENT HEREBY DISCLAIMS ALL WARRANTIES
WITH RESPECT THERETO, EXPRESS OR IMPLIED, CINLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES AND/OR CONDITIONS
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR OF ACCURATE OR OF NONINFRINGEMENT OF THIRD-PARTY
RIGHTS. RECIPIENT DOES NOT WARRANT THAT THE STUDY
RESULTS WILL MEET ANY SPECIFIC CRITERIA.
f. The CITY assumes all liability for damages that may arise from its use,
storage, disposal, or distribution of Study Results. RECIPIENT will not be
liable to the City for any loss, claim or demand made by the City or made
against the City by any other party, due to or arising from the use of the
Study Results by the City.
g. When the Transaction is complete, the Confidential lnformation, at the
request of the CITY, will be returned to the CITY or discarded in
compliance with all applicable statutes and regulations and to the
satisfaction of the CITY.
4. The CITY and RECIPIENT expressly certify and affirm that the contents of any
statements made herein are truthful and accurate.
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Exhibit B
INSURANCE REQUIREMENTS
RECIPIENT Service Agreement between City of Fresno ("ClTY")
and THE UNIVERSITY OF CHICAGO ("REC|PIENT")
Review, Evaluate, and Analyze the CITY's hourly water meter data
PROJECT TITLE
MINIMUM LIMITS OF INSURANCE
RECIPIENT, or any party the RECIPIENT 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,(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. WORKERS' COMPENSATION INSURANCE as required by the State of
lllinois 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.
DEDUCTIBLES AND SELF.INSURED RETENTIONS
RECIPIENT shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and RECIPIENT shall also be responsible for
payment of any self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liabilitv policies are to contain, or be endorsed to contain, the followinq
provisions:
CITY, its officers, officials, employees, agents and volunteers are to be covered
as additional insureds. RECIPIENT shall establish additional insured status for
the City and for all ongoing and completed operations
For any claims relating to this Agreement, RECIPIENT'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 RECIPIENT'S insurance
and shall not contribute with it.
The Workers'Compensation insurance policy is to contain, or be endorsed to contain,
the following provision: RECIPIENT and its insurer shall waive any right of subrogation
against CITY, its officers, officials, employees, agents and volunteers.
RECIPIENT is also responsible for providing written notice to the CITY if during the term
of this Agreement such coverage is cancelled, not renewed, or reduced. Upon issuance
by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in
coverage or in limits, RECIPIENT shall furnish CITY with a new certificate and
applicable endorsements for such policy(ies). ln the event any policy is due to expire
during the work to be performed for CITY, RECIPIENT 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
RECIPIENT 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. Upon request of
CITY, RECIPIENT shall immediately furnish City with a complete copy of any insurance
policy required under this Agreement, including all endorsements.
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Exhibit C
DISCLOSI.JRE OF CONF¡.ICT OF INTEREST
Review, Evaluate, and Analyze the CITY's hourly water meter data
PROJECT TITLE
Explanation: #s 3-5 were left blank. As
larqe versitv anv
individuals enqaqe in many proiects
and are not privy to all of the Board of
Trustees relationships.
Date
Michael R. Ludwig
(name) Âssoc. Vice presidentfor Research Admlnisùation
YES*NO
1 Are you currently in litigation with the City of Fresno or any of
its agents?
T X
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?
T X
3 Do you currently represent or pedorm work for any clients who
do business with the City of Fresno?
T T
4 Are you or any of your principals, managers or professionals,
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?
tr ¡
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee
who has any significant role in the subject matter of this
service?
T T
6 Do you or any ofyour subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
connection with this Project?T X
* lf the answer to any question is yes, please explain in fyll below. ,/l/ , //
lanation: #s 3-5 4t
Uni we have m
rlé
(,
NON.DISC LOSU RE AGREEMENT
1 . Definition of Gonfidential Information
(a) Confidential lnformation need not be novel, unique, patentable,
copyrightable or constitute a trade secret in order to be designated Confidential
lnformation. RECIPIENT acknowledges that the Confidential lnformation is
proprietary to the CITY, has been developed and obtained through significant
investment by the CITY. RECIPIENT acknowledges and agrees that all information
and data provided by the CITY is Confidential lnformation and shall not be disclosed,
released, cited, or used by the RECIPIENT without receiving prior written consent
from the CITY, except as allowed by this Agreement.
(b) Notwithstanding anything in the foregoing to the contrary,
Confidential lnformation shall not include information which: (i) was known by the
RECIPIENT prior to receiving the Confidential lnformation from the CITY; (ii)
becomes rightfully known to the Receiving Party from a third-party source not
known by the Receiving Party to be under an obligation to the CITY to maintain
confidentiality; (iii) is or becomes publicly available through no breach of this
Agreement by the RECIPIENT in breach of this Agreement; (iv) is required to be
disclosed in a judicial or administrative proceeding, or is otherwise requested or
required to be disclosed by law or regulation, although the requirements of
paragraph 4 hereof shall apply prior to any disclosure being made; and (v) is or
has been independently developed by employees, consultants or agents of the
RECIPIENT without the use of or reliance on Confidential lnformation.
2. Disclosure of Confidential Information
From time to time, the CITY may disclose Confidential lnformation to RECIPIENT.
RECIPIENT will: (i) limit disclosure of any Confidential Information to its directors,
officers, employees, agents or representatives (collectively "Representatives") who
have a need to know such Confidential lnformation in connection with the
Transaction between the parties to which this Agreement relates, and only for
that purpose; (ii) advise its Representatives of the proprietary nature of the
Confidential lnformation and of the obligations set forth in this Agreement and require
such Representatives to keep the Confidential lnformation confidential; (iii) shall
keep all Confidential lnformation strictly confidential by using a reasonable degree of
care, but not less than the degree of care used by it in safeguarding its own
confidential information; and (iv) not disclose any Confidential lnformation received by
it to any third parties (except as othenvise provided for herein).
Each party shall be responsible for any breach of this NDA by any of their
respective Rep resentatives.
3. Use of Gonfidential lnformation
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The RECIPIENT agrees to use the Confidential lnformation solely in connection with
the current or contemplated Transaction between the parties and not for any
purpose other than as authorized by this Agreement without the prior written
consent of an authorized representative of the CITY. No other right or license,
whether expressed or implied, in the Confidential lnformation is granted to
RECIPIENT hereunder. Title to the Confidential lnformation will remain solely with
the CITY. RECIPIENT will own Study Results. The City may use the Study
Results as allowed by Exhib¡t A of this Agreement.
4. Compelled Disclosure of Confidential lnformation
Notwithstanding anything in the foregoing to the contrary, RECIPIENT may disclose
Confidential lnformation pursuant to any governmental, judicial, or administrative
order, subpoena, discovery request, regulatory request or similar method, provided
that the RECIPIENT promptly notifies, to the extent practicable, the CITY in writing
of such demand for disclosure so that the CITY, at its sole expense, may seek to
make such disclosure subject to a protective order or other appropriate remedy to
preserve the confidentiality of the Confidential lnformation; provided in the case of
a broad regulatory request with respect to the RECIPIENT's business (not targeted
at the CITY), the RECIPIENT may promptly comply with such request provided the
RECIPIENT give (if permitted by such regulator) the CITY prompt notice of such
disclosure. The RECIPIENT agrees that it shall not oppose and shall cooperate with
efforts by, to the extent practicable and at the City's expense, the CITY with respect
to any such request for a protective order or other relief. Notwithstanding the
foregoing, if the Clry is unable to obtain or does not seek a protective order and
the RECIPIENT is legally requested or required to disclose such Confidential
lnformation, disclosure of such Confidential lnformation may be made without liability.
5, Remedies
Both parties acknowledge that the Confidential lnformation to be disclosed hereunder
is of a unique and valuable character, and that the unauthorized dissemination of
the Confidential lnformation may destroy or diminish the value of such information.
The damages to the City that may result from the unauthorized dissemination of the
Confidential lnformation may be impossible to calculate. Therefore, both parties
hereby agree that the CITY may be entitled to seek injunctive relief preventing the
dissemination of any Confidential lnformation in violation of the terms hereof. Such
injunctive relief may be in addition to any other remedies available hereunder,
whether at law or in equity.
6. Return of Gonfidential lnformation
RECIPIENT shall immediately return and re-deliver to the C ITY all tangible
material embodying the Confidential lnformation provided hereunder ("Notes") (and
all copies of any of the foregoing, including "copies" that have been converted to
computerized media in the form of image, data or word processing files either
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manually or by image capture) including any Confidential lnformation, in whatever
form of storage or retrieval, upon the earlier of (i) the completion or termination of
the Transaction between the parties contemplated hereunder; (ii) the termination of
the Agreement; or (iii) at such time as the CITY may so request; provided however
that the RECIPIENT may retain such of its documents as is necessary to enable it to
comply with its document retention policies. For the purposes of clarity, this
paragraph is not meant to require RECIPIENT to return Study Results. Alternatively,
the RECIPIENT, with the written consent of the CITY may (or in the case of Notes, at
the RECIPIENT's option) immediately destroy any of the foregoing embodying
Confidential lnformation (or the reasonably non-recoverable data erasure of
computerized data) and, upon request, certify in writing such destruction by an
authorized officer of the RECIPIENT supervising the destruction).
7. Notice of Breach.
RECIPIENT shall notify the CITY immediately upon discovery of any unauthorized
use or disclosure of Confidential lnformation by RECIPIENT or its Representatives, or
any other breach of this Agreement by RECIPIENT or its Representatives, and will
cooperate with efforts by the CITY to help the CITY regain possession of
Confidential lnformation and prevent its further unauthorized use.
8. No Bindinq Agreement for Transaction.
The parties agree that neither party will be under any legal obligation of any kind
whatsoever with respect to a new Transaction by virtue of this NDA, except for the
matters specifically agreed to herein and in the Data Use Agreement. The parties
further acknowledge and agree that they each reserve the right, in their sole and
absolute discretion, to reject any and all proposals and to terminate discussions and
negotiations with respect to a new Transaction at any time. This Agreement does not
create a joint venture or paftnership between the parties. lf a new Transaction goes
fon¡uard, the non-disclosure provisions of any applicable transaction documents
entered into between the parties (or their respective affiliates) for the new
Transaction shall supersede this Agreement. ln the event such provision is not
provided for in said new Transaction documents, this Agreement shall control.
9. Warranty
The City warrants that it has the right to make the disclosures under this
Agreement. The parties acknowledge that although they shall each endeavor to
include in the Confidential lnformation all information that they each believe relevant
for the purpose of the evaluation of the Transaction, the parties understand that no
representation or warranty as to the accuracy or completeness of the Confidential
lnformation is being made by either party as the CITY. Further, neither party is
under any obligation under this Agreement to disclose any Confidential lnformation
it chooses not to disclose.
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10. Miscellaneous
(a) Although the restrictions contained in this NDA are considered
by the parties to be reasonable for the purpose of protecting the Confidential
lnformation, if any such restriction is found by a court of competent jurisdiction to
be unenforceable, such provision will be modified, rewritten or interpreted to include
as much of its nature and scope as will render it enforceable. lf it cannot be so
modified, rewritten, or interpreted to be enforceable in any respect, it will not be given
effect, and the remainder of the NDA will be enforced as if such provision was not
included.
(b) The receipt of Confidential lnformation pursuant to the
Agreement will not prevent or in any way limit either party from: (i) developing,
making or marketing products or services that are or may be competitive with the
products or services of the other; or (ii) providing products or services to others who
compete with the other.
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