HomeMy WebLinkAboutFIRESTATS LLC; 2011-06-16;AGREEMENT FOR SOFTWARE RELATED TO
FIRE SERVICE OPERATIONS WITH FIRESTATS, LLC
THIS AGREEMENT is made and entered into as of the /o _ day of
, 2011, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and FIRESTATS, LLC, a limited liability company ("Contractor").
RECITALS
A. City requires the professional services of a software support provider that is
experienced in analyzing fire service operations.
B. Contractor has the necessary experience in providing professional services and
advice related to statistical and geospatial analysis of municipal fire service and Emergency
Medical Services (EMS) operations.
C. Selection of Contractor is expected to achieve the desired results in an expedited
fashion.
D. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of 24 months from the date first above
written. The City Manager may amend the Agreement to extend it for two additional one-year
periods or parts thereof in an amount not to exceed twelve thousand eight hundred dollars
($12,800) per One Year Agreement Period. Extensions will be based upon a satisfactory review
of Contractor's performance, City needs, and appropriation of funds by the City Council. The
parties will prepare a written amendment indicating the effective date and length of the extended
Agreement.
4- TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable per One Year Agreement Period for the Services to be performed during
the initial Agreement term and any subsequent extension term(s) shall not exceed twelve
thousand eight hundred dollars ($12,800) per One Year Agreement Period. No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
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retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental
payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will
be under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within
thirty (30) days for any tax, retirement contribution, social security, overtime payment,
unemployment payment or workers' compensation payment which City may be required to
make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work
done under this Agreement. At the City's election, City may deduct the indemnification amount
from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will notify the City of the subcontracting of any portion of the Services. If Contractor
subcontracts any portion of the Services, Contractor will be fully responsible to City for the acts
and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible
for payment of subcontractors. Contractor will bind every subcontractor and every
subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work
unless specifically noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or early termination of this Agreement.
City acknowledges that Consultant makes its best professional efforts at understanding and
interpreting the data available, that not all data may necessarily be available, that not all
possible analyses are likely to be performed in the pursuit of understanding City's resource
deployment and performance, and that alternative interpretations of the data and analyses may
exist. City further acknowledges that any deployment decisions made by City with information
provided through FireStats' tools or consulting are made with multiple considerations and not
solely with FireStats' tools or consulting. City therefore shall indemnify, defend and hold
Consultant harmless from any and all suits, claims or liabilities, including attorneys' fees, costs
or expenses incurred or arising under this Agreement and not arising from any illegal act by
Consultant in the performance of this Agreement.
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Each party hereby, to the extent and limit permitted by State law, but without obligation to
provide insurance of any nature of the other party, shall hold harmless and indemnify the other
party from and against any and all liability, assertions, loss, claims, damages, costs, attorney's
fees, judgments and expenses of whatsoever kind or nature which the other party may sustain,
suffer or incur or be required to pay by reason of a loss resulting from the negligent acts or
omissions of the party. To the extent and limit permitted by State law, in the event that any
action, suit or proceeding is brought against a party upon any alleged liability arising out of this
Agreement asserted to have resulted from the negligence of the other party, the party against
whom the action, suit or proceeding is brought shall promptly provide notice in writing thereof to
the other party by registered or certified mail addressed to the party against whom the action,
suit or proceeding is brought at the address herein provided. Upon receiving such notice, the
party receiving notice, at its own expense, shall diligently defend the party against whom the
action, suit or proceeding is brought against such assertions, actions, lawsuits, or proceedings
and take any and all appropriate actions to prevent the obtaining of a judgment against the party
against whom the action, suit or proceeding is brought and to otherwise protect the interests of
the party against whom the action, suit or proceeding is brought.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH". OR
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
10.1 Coverages and Limits
Contractor will maintain the types of coverages and minimum limits indicated below, unless City
Attorney or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance $1,000,000 combined single-
limit per occurrence for bodily injury, personal injury and property damage. If the submitted
policies contain aggregate limits, general aggregate limits will apply separately to the work
under this Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and
property damage.
10.1.3 Workers' Compensation and Employer's Liability Workers'
Compensation limits as required by the California Labor Code. Workers' Compensation will not
be required if Contractor has no employees and provides, to City's satisfaction, a declaration
stating this.
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10.1.4 Professional Liability Errors and omissions liability that is appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
[ | If box is checked, Professional Liability
City's Initials Contractor's Initials Insurance requirement is waived.
10.2. Additional Provisions Contractor will ensure that the policies of insurance required
under this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on General Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements Prior to City's execution of
this Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. Contractor is responsible for any payments made by City to
obtain or maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of
three (3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered to City within 30 days. Contractor will have the right to make one (1)
copy of the work product for Contractor's records. Nothing herein shall be construed to
establish any ownership by City over any of the programming used by Contractor and made
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available to City pursuant to this Agreement. All programming is entirely owned by Contractor
and City's usage of that programming is contingent on this Agreement being current.
14. COPYRIGHTS
No copyrightable materials are contemplated to be developed pursuant to this Agreement.
However, some documents and analyses will be developed through Contractor's standard
formats and software applications. These will be specific to City but substantially the same as
those developed for other jurisdictions. City shall have no copyrights over any such works.
Contractor and City agree to consider each written work created under this Agreement and to
vest with the City any copyrights not reserved by Contractor.
15. NOTICES
The names of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement are:
For City For Contractor
Name Kevin Crawford Name Paul Rottenberg
Title Fire Chief Title Owner
Department Carlsbad Fire Department Address 10366 Hawke Lane
City of Carlsbad Nevada City, California 95959
Address 2560 Orion Way Phone No. (530) 478-0657
Carlsbad, California 92010
Phone No. (760)931-2141
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required of
Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees, agents,
or subcontractors will complete and file with the City Clerk those schedules specified by City
and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and
consultants warrants that by execution of this Agreement, that they have no interest, present or
contemplated, in the projects affected by this Agreement. Contractor further warrants that
neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have
any ancillary real property, business interests or income that will be affected by this Agreement
or, alternatively, that Contractor will file with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
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these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants that the services required
by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services, the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded
to the City Manager. The City Manager will consider the facts and solutions recommended by
each party and may then opt to direct a solution to the problem. In such cases, the action of the
City Manager will be binding upon the parties involved, although nothing in this procedure will
prohibit the parties from seeking remedies available to them at law. Any third party adjudication
of disputes subsequent to the above-described process shall be thorough arbitration under the
rules of the American Bar Association.
20. TERMINATION
Within the first year of this Agreement, termination by City may be only for substantial failure to
perform by Consultant. A written notice of cure must be provided by City and a 30-day cure
period allowed for resolution of the breach. Within the first year, the Agreement may be
terminated by Consultant for failure of City to make payment due Consultant. Invoices 30 days
past due will be noticed to City. Invoices 60 days past due will receive a second notice. At 75
days past due, Consultant shall notify City of material default for non-payment and services may
be terminated by Consultant at 90 days past due unless agreed by the parties otherwise.
Termination by Consultant for non-payment within the first year shall accelerate all remaining
payments for the year.
After the first year, this Agreement may be terminated by either party with or without cause. All
amounts outstanding shall be due net 30 days from final invoice. Upon notification of
termination, Contractor has thirty (30) business days to deliver any documents owned by City
and all work in progress to City at the address contained in this Agreement. The parties shall
work in good faith to determine what percentage of the outstanding work is compensable.
Failure by the parties to reach an agreement shall be dealt with in accordance with Section 19,
Dispute Resolution.
21- COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
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contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, City will have the right to annul this Agreement without liability, or, in
its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in
anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false
claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq..
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement
for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction
is grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it,
along with the purchase order for this Agreement and its provisions, embody the entire
Agreement and understanding between the parties relating to the subject matter of it. In case of
conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor
any of its provisions may be amended, modified, waived or discharged except in a writing
signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California
(sign here)
Paul J. Rottenberg, Owner
K
Fire Cfilef
(print name/title)
Notary Acknowieagemeni Attached ATTEST:
*By:
>, •••!? .v
'',x -A- x 0>'"'unio*^
(sign here)LORRAINE M. WOOD
City Clerk
7
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation. Agreement must be signed by one corporate officer from each of the
following two groups.
"Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD
City Attorney Approved Version 2.18.11
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
On before me,
personally appeared
(Here insert name and title of the officer) I
who proved to me on the basis of satisfactory evidence to be the person(&) whose name(S) is/aYe subscribed to
the within instrument and acknowledged to me that he/sTTeVthey executed the same in his/KeT/their authorized
capacity {las), and that by his/fieT/thsir signature^ on the instrument the person(1s), or the entity upon behalf of
which the persori^sj acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WI cS my-Jiand and </fficial seal.i " ; I
Signature of Notary Public
DONA M. BERGTHOLD
Commission # 1903924
Notary Public - California
Nevada County
My Comm. Expires Oct 10.2014 L
(Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
Title or desription ofyattached document)
f ("Title or description of attached documS^t continued)
Number of Pages /Q Document Date J ''/v? ' /
(Additional information)
CAPA£
f
D
D
D
D
HTY CLAIMED BY THE SIGNER
Individual (s)
Corporate Officer
(Title)
Partner(s)
Attorney-in-Fact
Trustee(s)
Other
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment fonn must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
document carefully for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/she/they, is /are) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
* Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
''• Indicate title or type of attached document, number of pages and date.
•> Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com
EXHIBIT "A"
SCOPE OF SERVICES
ONLINE SERVICES AND SOFTWARE
• Contractor provides an on-line business intelligence software application for use by the
City.
• The City provides the monthly data through NorthCom, the City's dispatch agency.
• Contractor processes the data and makes it available through the online tools.
• The tools are modified and enhanced form time-to-time. Contractor is solely responsible
for maintenance of the data and tools.
• Contractor shall provide technical support to appropriate Fire Department staff to ensure
their proper use and understanding of the tools.
• Contractor shall provide unique and terminable user names and passwords to all
designated Fire Department personnel.
• Upon termination of this Agreement, Contractor shall, at the express request of the Fire
Department, delete all Carlsbad Fire Department data except where said data is being
used pursuant to agreements with neighboring departments (e.g. participants in the fire
and EMS JPA) under separate agreements with Contractor.
• Contractor shall provide 30-day invoicing and City shall provide net payment within 30
days of invoice receipt.
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SOLE OWNER
I, Paul J. Rottenberg, am the sole owner of FireStats, LLC., a single-member LLC.
Should FireStats, LLC., become jointly owned by adding members or changing its
corporate structure during the term of the Agreement with the City of Carlsbad for
management consulting and software-related services, then I shall notify the City
promptly.
Executed on this 26th day of May, 2011, at Nevada City, California.
Paul J. Rottenberg
Owner of FireStats, LLC.
CITY ATTORNEY APPROVED VERSION 09.05.01
CERTIFICATE OF EXEMPTION
FROM WORKERS COMPENSATION/ EMPLOYERS' LIABILITY INSURANCE
I, Paul J. Rottenberg, am the owner of FireStats, LLC. I hereby certify that FireStats,
LLC., has no employees and is not required by law to maintain workers compensation or
employers' liability insurance. Should FireStats, LLC., employ any person during the
term of the Agreement with the City of Carlsbad for management consulting and
software-related services then workers compensation and employers' liability insurance
will be obtained.
Executed on this 26th day of May, 2011, at Nevada City, California.
Paul J. Rottenberg, Owner of FireStats, LLC
CITY ATTORNEY APPROVED VERSION 09.05.01