HomeMy WebLinkAbout11-01-2021 Procure America AgreementAGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on _________________,
by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and
Procure America, Inc. hereinafter referred to as Consultant.
W I T N E S S E T H:
WHEREAS, Subject to the terms and conditions set forth in this Agreement, Consultant shall provide
to the City the services set forth in Exhibit A.
WHEREAS, Consultant is qualified to perform this type of service and has submitted a proposal
attached to do so which has been accepted by City.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter
contained, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall be from the date this Agreement is made and
entered, as first written above, for three years from the date of acceptance of Consultant’s enterprise
strategic plan (ESP) as set forth in Exhibit A.
2. INCORPORATION BY REFERENCE The Contractor’s fees and scope of work are incorporated
in and made a part of this Agreement attached as Exhibit A. The City’s terms and conditions are hereby
incorporated in an made a part of this Agreement as Exhibit B. The City’s insurance requirements and
Consultant’s proof of insurance are hereby incorporated in and made part of this Agreement attached as
Exhibit C. To the extent that there are any conflicts between the Contractor’s fees and scope of work and
the City’s terms and conditions, the City’s terms and conditions shall prevail, unless specifically agreed
otherwise in writing signed by both parties.
3. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, there will be no
up-front fees. Consultant’s compensation proposal is 100% contingency based. The ESP report will
document the established rates and specific recommendations for cost reduction. If the City approves and
receives Consultant recommendations the City shall pay Consultant 50% of actual cost s avings in quarterly
installments over a period of three years.
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4. CONTRACTOR'S OBLIGATIONS. For and in consideration of the payments and Agreements
herein before mentioned to be made and performed by City, Consultant agrees with City to provide services
as set forth in Exhibit A.
5. AMENDMENTS. Any amendment, modification or variation from the terms of this
Agreement shall be in writing and shall be effective only upon approval by the City Manager.
6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically
incorporated herein by reference, shall constitute the complete Agreement between the parties hereto. No
oral Agreement, understanding, or representation not reduced to writing and specifically incorporated
herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation
be binding upon the parties hereto.
7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage
prepaid by registered or certified mail addressed as follows:
City Finance
City of San Luis Obispo
990 Palm St.
San Luis Obispo, CA 93401
Attn: belke@slocity.org
Contractor/Consultant Procure America
31103 Rancho Viejo Road #D2102
San Juan Capistrano, CA 92765
8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each
individual executing this Agreement on behalf of each party is a person duly authorized and empowered to
execute Agreements for such party.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and
year first above written.
CITY OF SAN LUIS OBISPO, A Municipal Corporation
By:_____________________________
Derek Johnson, City Manager
APPROVED AS TO FORM: CONTRACTOR
________________________________ By: __________________________________
J. Christine Dietrick, City Attorney
ATTEST:
_____________________________________
City Clerk
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EXHIBIT A
Statement of Work
1.) STATEMENT OF WORK: Procure America (PA) is pleased to provide the following cost reduction consulting
services to Client (as selected by Client) with the resolve and purpose of reducing or recovering costs.
❑ Waste & Recycle ❑ Utilities
❑ Document Management ❑ Treasury Services
❑ Telecommunications ❑ Technology Optimization
PA shall use its best efforts to obtain cost savings for Client’s benefit by analyzing Client’s policies, procedures,
supplier contracts, past invoices and other pertinent information as it relates to the above selected expense categories
set for review. PA will gather information as to Client’s needs (past, present and future) from Client’s service
providers so as to build a solution that not only lowers cost, but also matches Client’s operational and corporate
requirements and expectations. After analyzing Client’s current spending patterns, PA shall provide Client with a
findings report outlining PA’s observations. PA’s report will include a review of operations, cost reduction
recommendations and potential service level enhancements. The report’s recommendations will also include a
comparison to the Client’s historical cost or “Established Rates” to clearly outline the cost savings generated by this
project. It is understood that despite PA’s recommendations, the Client has the right not to proceed with any of PA’s
result findings or proposals.
2.) POST REVIEW PHASE: In the event that the Client wishes to proceed with PA’s recommendations as set forth
in PA’s findings report, for the entire balance of the relationship with Client, PA will continue to consult with Client in
an effort to continuously look for efficiencies in the chosen areas of focus. Periodically, the PA team will review
Client’s invoicing and deliverables to ensure accountability by Client’s service providers with respect to the spirit and
intent of the agreement between Client and the third-party service provider. This review will take into account service
levels, cost controls and overall client satisfaction. Further, PA will continuously consult with Client to anticipate
changes in service needs to ensure that the proper service provider, contract and procedures are in place to address
Client’s go forward requirements. This Post Review consulting work comes to client at no additional cost, unless
additional savings are generated. If additional savings are generated during the 36-month term of the Agreement after
the initial findings, Client agrees to compensate PA for the savings at fifty percent of half of the actual realized
savings.
3.) REVENUE SHARE: Client has in place certain existing costs as it pertains to the requested expense categories
selected for review (“Established Rates”). PA’s findings report will document the Established Rates and specific
recommendations for each service or product chosen for review and outline the methodology used to generate PA’s
report. Client and PA will then discuss and agree on the Established Rates for the targeted service or product as
outlined in PA’s findings report. If Client elects to proceed with any or all of the recommendations as set forth in PA’s
findings report, Client agrees to compensate PA for the savings outlined with the findings report. The Revenue Share
to PA is fifty percent or half of the actual realized savings measured by the difference between the agreed upon
Established Rates and Client’s new costs as set forth in PA’s findings report and documented through actual realized
savings.
In some cases, the PA staff may discover over billing, credits, rebates or other sources of revenue. This income is to be
considered expense reduction for purposes of this Agreement and will be accounted for in the same manner as the
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expense reduction savings. This revenue shall be shared with PA after the refunds or other credits are realized by
Client. In other cases, PA may have the ability to recover rebates or other compensation by contractors or service
providers. PA shall disclose this compensation to Client and both parties shall share this revenue as savings at the time
the revenue is received. It may be necessary to institute cost reduction strategies within a specific expense category in
stages. If this occurs, then each stage of implementation will be viewed with its own billing cycle.
4.) CLIENT PARTICIPATION: Client shall give its full cooperation to PA in providing all required documents,
invoices, contracts and staff consultation time to PA’s evaluation team in order to conduct the expense reduction
review. During the review process, Client agrees not to renegotiate, amend or extend in place contracts or introduce
operational procedures/changes that will effect cost/pricing and or contractual obligations of the Client to the supplier.
Any cost reduction made during the assessment process will be credited to PA’s presence and is therefore treated as
such and factored into the shared revenue structure. During the course of the relationship between PA and Client,
Client and PA understand that despite PA’s recommendations, suggestions, potential suppliers and other proposals,
Client has the right not to proceed with said proposals. However, if Client does pursue any or all of the documented
review recommendations (with or without PA’s further assistance), PA is entitled to the appropriate revenue share as
outlined in Section 3 above. Client agrees to grant PA the right to review any materials (books, records, invoices,
contracts or other information) related to the review category selected by Client in Section 1 above. PA is authorized to
obtain information relating to the provider accounts directly from the providers personnel and provider websites. Any
additional Client request or engagements, written or otherwise, to review supplementary expenses or income streams
will also be governed by this Agreement.
This Agreement shall commence with the Client’s first PA invoice per expense category and will be in effect for an
initial 36 month term. Each expense reduction category carries its own 36 month term/billing cycle commencing on the
first invoice for that particular practice group. If the savings is implemented in stages, each stage will carry its own 36
month term. PA and Client shall have the option to terminate this Agreement after the initial term with a 30 day prior
written notice to the other party.
5.) CONFIDENTIALITY: Each party shall maintain in strict confidence all information received from the other
party in the performance of this Agreement, except to the extent disclosure of such information or documentation is
required by court order or law, including but not limited to the California Public Records Act. Client acknowledges
and agrees that any intellectual property developed or used by PA shall be the property of PA.
IN WITNESS WHEREOF, Client has executed this Agreement to be effective on the date below.
Client: By:
Title: Signature:
Date: _______________________________
Procure America 31103 Rancho Viejo Road #D2102 San Juan Capistrano CA 92675
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EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Insurance Requirements. The Contractor shall provide proof of insurance in the form,
coverages and amounts specified in Section E of the City’s Request for Proposal referenced in
paragraph 2 of the Agreement, unless changes are otherwise approved and agreed to in writing
between the parties. If the Agreement is entered into outside of a Request for Proposal, Contractor
shall provide proof of insurance in the form of coverages and amounts specified in Exhibit C.
2. Business License & Tax. The Contractor must have a valid City of San Luis Obispo business
license & tax certificate before execution of the contract. Additional information regarding the
City’s business tax program may be obtained by calling (805) 781-7134.
3. Ability to Perform. The Contractor warrants that it possesses, or has arranged through
subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and
complete the work hereunder in compliance with all federal, state, county, city, and special district laws,
ordinances, and regulations.
4. Laws to be Observed. The Contractor shall keep itself fully informed of and shall observe and
comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances,
regulations and adopted codes during its performance of the work.
5. Payment of Taxes. The contract prices shall include full compensation for all taxes that the
Contractor is required to pay.
6. Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges
and fees, and give all notices necessary.
7. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to
safety established by OSHA and the California Division of Industrial Safety.
8. Public and Employee Safety. Whenever the Contractor’s operations create a condition
hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish,
erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take
such other protective measures as are necessary to prevent accidents or damage or injury to the public
and employees.
9. Preservation of City Property. The Contractor shall provide and install suitable safeguards,
approved by the City, to protect City property from injury or damage. If City property is injured or
damaged resulting from the Contractor’s operations, it shall be replaced or restored at the Contractor’s
expense. The facilities shall be replaced or restored to a condition as good as when the Contractor
began work.
10. Immigration Act of 1986. The Contractor warrants on behalf of itself and all
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subcontractors engaged for the performance of this work that only persons authorized to work in the
United State pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws
shall be employed in the performance of the work hereunder.
11. Contractor Non-Discrimination. In the performance of this work, the Contractor agrees that
it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in
employment of persons because of age, race, color, sex, national origin or ancestry, sexual
orientation, or religion of such persons.
12. Work Delays. Should the Contractor be obstructed or delayed in the work required to be done
hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire,
earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to
federal government restrictions arising out of defense or war programs, then the time of completion
may, at the City’s sole option, be extended for such periods as may be agreed upon by the City and the
Contractor. In the event that there is insufficient time to grant such extensions prior to the completion
date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that
may have accrued for failure to complete on time, due to any of the above, after hearing evidence as to
the reasons for such delay, and making a finding as to the causes of same.
13. Payment Terms. The City’s payment terms are 30 days from the receipt of an original invoice
and acceptance by the City of the materials, supplies, equipment, or services provided by the Contractor
(Net 30).
14. Inspection. The Contractor shall furnish City with every reasonable opportunity for City to
ascertain that the services of the Contractor are being performed in accordance with the requirements
and intentions of this contract. All work done, and all materials furnished, if any, shall be subject to the
City’s inspection and approval. The inspection of such work shall not relieve Contractor of any of its
obligations to fulfill its contract requirements.
15. Audit. The City shall have the option of inspecting and/or auditing all records and other written
materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to
Contractor.
16. Interests of Contractor. The Contractor covenants that it presently has no interest, and shall
not acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree
with the performance of the work hereunder. The Contractor further covenants that, in the
performance of this work, no subcontractor or person having such an interest shall be employed. The
Contractor certifies that no one who has or will have any financial interest in performing this work is an
officer or employee of the City. It is hereby expressly agreed that, in the performance of the work
hereunder, the Contractor shall at all times be deemed an independent contractor and not an agent or
employee of the City.
17. Hold Harmless and Indemnification.
(a) Non-design, non-construction Professional Services: To the fullest extent permitted by
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law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Consultant shall
indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers,
and agents (“City Indemnitees”), from and against any and all causes of action, claims, liabilities,
obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation
(“claims”), arising out of the Consultant’s performance or Consultant’s failure to perform its obligations
under this Agreement or out of the operations conducted by Consultant, including the City’s active or
passive negligence, except for such loss or damage arising from the sole negligence or willful
misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit, or
other adversarial proceeding arising from Consultant’s performance of this Agreement, the Consultant
shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees
their costs of defense, including reasonable legal fees, incurred in defense of such claims.
(b) Non-design, construction Professional Services: To the extent the Scope of Services involve a
“construction contract” as that phrase is used in Civil Code Section 2783, this paragraph shall apply in
place of paragraph A. To the fullest extent permitted by law (including, but not limited to California Civil
Code Sections 2782 and 2782.8), Consultant shall indemnify, defend, and hold harmless the City, and its
elected officials, officers, employees, volunteers, and agents (“City Indemnitees”), from and against any
and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable
legal counsels’ fees and costs of litigation (“claims”), arising out of the Consultant’s performance or
Consultant’s failure to perform its obligations under this Agreement or out of the operations conducted
by Consultant, except for such loss or damage arising from the active negligence, sole negligence or
willful misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit,
or other adversarial proceeding arising from Consultant’s performance of this Agreement, the
Consultant shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City
Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.
(c) Design Professional Services: In the event Consultant is a “design professional”, and the Scope of
Services require Consultant to provide “design professional services” as those phrases are used in Civil
Code Section 2782.8, this paragraph shall apply in place of paragraphs A or B. To the fullest extent
permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8)
Consultant shall indemnify, defend and hold harmless the City and its elected officials, officers,
employees, volunteers and agents (“City Indemnitees”), from and against all claims, damages, injuries,
losses, and expenses including costs, attorney fees, expert consultant and expert witness fees arising
out of, pertaining to or relating to, the negligence, recklessness or willful misconduct of Consultant,
except to the extent caused by the sole negligence, active negligence or willful misconduct of the City.
Negligence, recklessness or willful misconduct of any subcontractor employed by Consultant shall be
conclusively deemed to be the negligence, recklessness or willful misconduct of Consultant unless
adequately corrected by Consultant. In the event the City Indemnitees are made a party to any action,
lawsuit, or other adversarial proceeding arising from Consultant’s performance of this Agreement, the
Consultant shall provide a defense to the City Indemnitees or at the City’s
option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, incurred
in defense of such claims. In no event shall the cost to defend charged to Consultant
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under this paragraph exceed Consultant’s proportionate percentage of fault. However, notwithstanding
the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due
to bankruptcy or dissolution of the business, Consultant shall meet and confer with other parties regarding
unpaid defense costs.
(d) The review, acceptance or approval of the Consultant’s work or work product by any indemnified
party shall not affect, relieve or reduce the Consultant’s indemnification or defense obligations. This
Section survives completion of the services or the termination of this contract. The provisions of this
Section are not limited by and do not affect the provisions of this contract relating to insurance.
18. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of
the contract, or its right, title or interest, or its power to execute such a contract to any individual or
business entity of any kind without the previous written consent of the City.
19. Termination for Convenience. The City may terminate all or part of this Agreement for any or no
reason at any time by giving 30 days written notice to Contractor. Should the City terminate this
Agreement for convenience, the City shall be liable as follows: (a) for standard or off-the-shelf products, a
reasonable restocking charge not to exceed ten (10) percent of the total purchase price; (b) for custom
products, the less of a reasonable price for the raw materials, components work in progress and any
finished units on hand or the price per unit reflected on this Agreement. For termination of any services
pursuant to this Agreement, the City’s liability will be the lesser of a reasonable price for the services
rendered prior to termination, or the price for the services reflected on this Agreement. Upon
termination notice from the City, Contractor must, unless otherwise directed, cease work and follow the
City’s directions as to work in progress and finished goods.
20. Termination. If, during the term of the contract, the City determines that the Contractor is not
faithfully abiding by any term or condition contained herein, the City may notify the Contractor in writing
of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice
of time thereafter in which to perform said work or cure the deficiency.
If the Contractor has not performed the work or cured the deficiency within the ten days specified in the
notice, such shall constitute a breach of the contract and the City may terminate the contract
immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any
further duties, obligations, responsibilities, or rights under the contract except, however, any and all
obligations of the Contractor’s surety shall remain in full force and effect, and shall not be extinguished,
reduced, or in any manner waived by the terminations thereof.
In said event, the Contractor shall be entitled to the reasonable value of its services performed from the
beginning date in which the breach occurs up to the day it received the City’s Notice of Termination,
minus any offset from such payment representing the City’s damages from such breach. “Reasonable
value” includes fees or charges for goods or services as of the last milestone or task satisfactorily
delivered or completed by the Contractor as may be set forth in
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SECTION H: INSURANCE REQUIREMENTS
Consultant Services
The Contractor shall procure and maintain for the duration of the contract insurance against claims for
injuries to persons or damages to property which may arise from or in connection with the performance
of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors.
Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1
(any auto).
3. Workers' Compensation insurance as required by the State of California and Employer's Liability
Insurance.
4. Errors and Omissions Liability insurance as appropriate to the consultant's profession.
Minimum Limits of Insurance. Contractor shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer's Liability: $1,000,000 per accident for bodily injury or disease.
4. Errors and Omissions Liability: $1,000,000 per occurrence.
Deductibles and Self‐Insured Retentions. Any deductibles or self‐insured retentions must be declared to
and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such
deductibles or self‐insured retentions as respects the City, its officers, officials, employees and volunteers;
or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be
endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as
respects: liability arising out of activities performed by or on behalf of the Contractor; products
and completed operations of the Contractor; premises owned, occupied or used by the
Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage
shall contain no special limitations on the scope of protection afforded to the City, its officers,
official, employees, agents or volunteers.
2. For any claims related to this project, the Contractor's insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents and volunteers. Any
insurance or self‐insurance maintained by the City, its officers, officials, employees, agents or
volunteers shall be excess of the Contractor's insurance and shall not contribute with it.
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3. The Contractor's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer's liability.
4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not
be suspended, voided, canceled by either party, reduced in coverage or in limits except after
thirty
(30) days' prior written notice by certified mail, return receipt requested, has been given to the
City.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no
less than A:VII.
Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing
maintenance of the required insurance coverage. Original endorsements effecting general liability and
automobile liability coverage required by this clause must also be provided. The endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be
received and approved by the City before work commences.
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the Agreement payment schedule; compensation for any other work, services or goods performed or
provided by the Contractor shall be based solely on the City’s assessment of the value of the work-in-
progress in completing the overall work scope.
The City reserves the right to delay any such payment until completion or confirmed abandonment of
the project, as may be determined in the City’s sole discretion, so as to permit a full and complete
accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the
compensation quoted in its proposal.
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