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HomeMy Public PortalAbout2016.094 (05-03-16)RESOLUTION NO. 2016.094 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD, CALIFORNIA, DIRECTING AND CONFERRING AUTHORIZATION TO THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE ADDENDUM TO THE AGREEMENT, OR TAKE ANY ACTIONS NECESSARY, TO IMPLEMENT THE COST REDUCTION RECOMMENDATIONS SUBMITTED OR TO BE SUBMITTED BY PROCUREAMERICA. WHEREAS, the City of Lynwood's Council Ad Hoc Audit Committee has met to review and make recommendations to the City Council on auditing and cost review measures; and WHEREAS, ProcureAmerica has agreed to offer cost - reduction and auditing services for a percentage from realized savings, derived from ProcureAmerica recommendations; and WHEREAS, the Council Ad Hoc Committee recommended award of a contract to ProcureAmerica to perform cost - reduction auditing services; and WHEREAS, the City Council approved award of a contract to ProcureAmerica on November 24, 2015; and WHEREAS, ProcureAmerica has completed its cost - reduction audit and identified potential savings and has presented its findings to the Council Ad Hoc Audit Committee and the City Manager on April 5, 2016. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD HEREBY RESOLVE AS FOLLOWS: Section 1. By approval of this resolution, the City Council of the City of Lynwood hereby directs and confers authorization to the City Manager, or his designee, to execute any addendum to the agreement, or take any actions necessary to implement the cost- reduction recommendations submitted or to be submitted by ProcureAmerica. Any addendum to the agreement will be in a form to be approved by the City Attorney. Section 2. That the City, Clerk shall certify to the adoption of this resolution and the same shall be in full force and effect immediately upon its adoption. [THIS SPACE INTENTIONALLY LEFT BLANK] PASSED, APPROVED, and ADOPTED this 3rd day of May 2016. ATTEST: Maria Quinonez, City Clerk APPROVED AS TO FORM / r qIA David A. Garcia, City Attorney l� �' Edwin Hernande Mayor APPROVED AS TO CONTENT: J. Arnoldo Beltran, City Manager STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the foregoing Resolution was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 3`d day of May, 2016, and passed by the following vote: AYES: COUNCIL MEMBERS ALATORRE, SANTILLAWBEAS, SOLACHE, CASTRO AND MAYOR HERNANDEZ NOES: NONE ABSENT: NONE ABSTAIN: NONE aria Quinonez, City Clerk STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the above foregoing is a full, true and correct copy of Resolution No. 2016.094 and is on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 3rd day of May, 2016. i Maria Quinonez, City Clerk SERVICES AGREEMENT This agreement ( "Agreement ") is made as of December 1f1r, 2015, by and between the City of Lynwood, a California municipal corporation (the "City "), and ProcureAmerica ( "Consultant "). City and Consultant are sometimes hereinafter individually referred to as a "Party" and collectively referred to as the "Parties." RECITALS WHEREAS, City desires to utilize the services of Consultant as an independent contractor to provide consulting services to City as set forth in the attached Exhibit "A'; and WHEREAS, Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees. NOW, THEREFORE, in consideration of performance by the Parties of the covenants and conditions herein contained, the Parties hereto agree as follows: 1. Scope of Services. The purpose of this Agreement is for Contractor to conduct cost reduction consulting services. The nature and scope of the specific services to be performed by Consultant are as described in Exhibit "A" ( "Statement of Work'; "Treasury (Bank Fees) Process Review'; "Utilities Process Review "). 2. Term of Agreement. This Agreement shall be for an approximate three (3) year period of time commencing on the date that Consultant first presents an invoice for any cost reduction recommendation, accepted in writing by the City, and ending at midnight on the 36th month following presentation of such invoice ( "Termination Date "), unless sooner terminated with or without cause pursuant to Paragraph 8 of Exhibit "B." On or before thirty (30) days prior to the Termination Date, Consultant and City shall meet to discuss this Agreement and its possible extension and or modification. 3. Compensation. A. City agrees to compensate Consultant for services under this Agreement in compliance with the rates set forth in Exhibit "A." Payment will be made only after submission of proper monthly invoices in the form and manner specified by City. B. Total payment to Consultant pursuant to this Agreement shall be a not -to- exceed a rate of 50% of the recommended cost - reduction recommendations) accepted by the City, which shall be payable in installments based on monthly invoices submitted by Consultant based on the rates agreed upon by both parties in Exhibit "A." In the event that this Agreement continues beyond the Termination Date as specified in Section 2, the total additional payment to Consultant in the event no new agreement is signed shall not exceed the remainder of the balance of this Agreement's not - to- exceed amount. It is the Consultant's sole duty to manage the costs associated with this Agreement and, subject to the applicable professional standard of care and reasonable and prudent management practices to reasonably ensure costs of services rendered as set forth in Exhibit "A" do not exceed the agreed upon amount. C. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out -of -town travel and lodging) which are above and beyond the ordinary PAGE 1 OF 3 expenses associated with performance of this Agreement, Consultant shall be entitled to reimbursement of such expenses as previously authorized by the City Manager. Consultant shall only be reimbursed for those expenses which: (i) appear on Consultant's monthly invoices; (ii) are accompanied by a copy of the City's written authorization for Consultant to incur such expenses; and (iii) receipts documenting such expenses. 4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit "B" are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both Parties intend the provisions of the other exhibit(s) to control. 5. Addresses. City of Lynwood Consultant 11330 Bullis Road Lynwood, CA 90262 Attn: City Manager 6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference. Exhibit A — "Statement of Work "; "Treasury (Bank Fees) Process Review'; "Utilities Process Review" (4 pages) Exhibit B — General Terms and Conditions (6 pages) SIGNATURES ON FOLLOWING PAGE PAGE 2OF3 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written below. CITY OF LYNWOOD By: . \ /ls•� iS Q— — y Ay/pb/ Arnoldo Beltran, City Manager Date ATTEST: By: Maria Quinones City Clerk APPROVED AS TO FORM: By: fdt. David A. Garcia, City Attorney CONSULTANT ProcureAmerica PAGE 3OF3 Date EXHIBIT "A" EXHIBIT `B" � IIS h A►sC:_ �.0 : \II Status as Independent Contractor. A. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation,.or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City. Contractor represents to the City, and City relies on Consultant's representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. The City has no duty, obligation, or responsibility to the Consultant's agents or employees, including the Affordable Care Act coverage requirements. The Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to the Consultant's agents and employees. Consultant warrants and represents that the City will not responsible and will not be held liable for issues related to the Consultant's status as an independent contractor, including Consultant's failure to comply with the Consultant's duties, obligations, and responsibilities under the Affordable Care Act. The Consultant agrees to defend, indemnify, and hold the City harmless for any and all taxes, claims, and penalties against the City related to the Consultant's status as an independent contractor, including its obligations under the Affordable Care Act. B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor's breach of relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent contractor status of Consultant and the audit in any way fails to sustain the validity of a wholly independent contractor relationship between City and Consultant to the extent such failure is due to the fault or breach of Consultant, then Consultant agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto. C. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant's employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 1. 2. Standard of Performance. A. Consultant shall perform all work to usual and customary professional standards and in a manner reasonably satisfactory to the City Manager or his/her designee. The City Manager or his/her designee may from time to time assign additional or different tasks or services to Consultant, provided such tasks are within the scope of services described in Exhibit A. However, no additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A, or those so assigned in writing to Consultant by the City Manager or his/her designee. B. The City shall, until further notice to Consultant, administer this Agreement and provide for immediate supervision of Consultant with respect to the services to be provided hereunder. 3. Indemnification. A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties. B. To the greatest extent permitted by law, City and its respective elected and appointed boards, officials, officers, and employees (individually and collectively,` "Indemnitees ") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, protect, defend (with counsel acceptable to the City) and hold harmless Indemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims "), which Indemnitees may suffer or incur or to which Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring to the extent caused by the Consultant's performance of any services under this Agreement or to the extent caused by the negligent acts, errors or omissions or willful misconduct of Consultant, its agents, officers, directors, subcontractors, subconsultants or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, the provisions of this subsection shall not apply to Claims occurring as a result of the City's sole negligence or willful and wrongful acts or omissions. C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, subconsultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify Indemnitees as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to City. D. Consultant represents to the City, and City relies on Consultant's representations, that the contractor shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Consultant or any of Consultant's employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to Consultant's agents or employees, including the Affordable Care Act coverage requirements. Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Consultant's agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to Consultant's status as an independent contract, including Consultant's failure to comply with Consultant's duties, obligations, and responsibilities under the Affordable Care Act. 1 4. Insurance. A. Without limiting Consultant's indemnification of Indemnitees pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below: (i) Commercial General Liability Insurance using Insurance Services Office Commercial General Liability form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits shall be no less than $1,000,000 per occurrence for bodily injury and property damage all covered losses and no less than $2,000,000 general aggregate, $2,000,000 Products /Completed Operations Aggregate. (ii) Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than 1,000,000 per accident, combined single limit. If consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described in the preceding subsection. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. (iii) Workers' Compensation insurance on a state approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident, $1,000,000 policy limit for bodily injury by disease and $1,000,000 each employee for bodily injury by disease. Limits can be met in combination of primary and excess coverages for all covered losses. (iv) Professional Liability or Errors and Omissions Insurance as appropriate to the profession, written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions or willful misconduct of the consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy limit shall be not less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. B. City, its officers, officials, employees and volunteers, shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability. C. All insurance procured pursuant to these requirements shall be written by insurers that are admitted or authorized carriers in the state of California with a Best's rating of no less than ANN. D. All insurance policies shall provide that the insurance coverage shall not be non - renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to "Risk Manager," City of Lynwood, 11330 Bullis Road, Lynwood, California, 90262. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage. E. Consultant shall submit to City (i) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (ii) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City's appropriate standard forms entitled "Additional Insured Endorsement ". A F. The Consultant's General Liability and Automobile Liability insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any General Liability insurance or self - insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of the Consultant's insurance and shall not contribute with it. G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost, City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Consultant and the cost of such insurance may be deducted, at the option of City, from payments due Consultant. 5. Confidentiality. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. 6. Ownership of Work Product. Upon payment of Consultant's consideration due hereunder, all reports, documents or other written material developed by Consultant in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination for the express purpose for which it was created under this Agreement. Any use or dissemination contrary hereto without the express written consent of Consultant shall be at City's sole risk and liability. Such material shall not be the subject of a copyright application by Consultant. Conflict of Interest. A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant. Consultant's covenant under this section shall survive the termination of this Agreement. 8. Termination With or Without Cause. This Agreement may be duly terminated at any time by the City at its sole discretion with or without cause, except for any compensation due by the City to Consultant for any cost - saving recommendation(s) accepted by the City for the term specified in writing signed by both Parties. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination. Consultant agrees that in the event of such termination, City's obligation to pay Consultant shall be limited to payment only for those services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written notice of termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City. 9. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant's services under this Agreement, but City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City's premises. 10. Financial Condition. Prior to entering into this Agreement, Consultant has submitted documentation acceptable to the City Manager, establishing that it is financially solvent, such that it can reasonably be expected to perform the services required by this Agreement. Within thirty (30) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement, Consultant shall submit such financial information as may be appropriate to establish to the satisfaction of the City Manager that Consultant is in at least as sound a financial position as was the case prior to entering into this Agreement. Financial information submitted to the City Manager shall be returned to Consultant after review and shall not be retained by City. 11. Non - Discrimination and Equal Employment Opportunity. A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials. 12. Assignment. Consultant shall not assignor transfer any interest in this Agreement nor the performance of any of Consultant's obligations hereunder, without the prior written consent of City, and any attempt by Consultant to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect. 13. Performance Evaluation. For any Agreement in effect for twelve months or longer, a written annual administrative performance evaluation shall be required within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein. 14. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times comply with such 91 laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section. 15. Licenses. At all times during the term of this Agreement, Consultant shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder. 16. Non - Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 17. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and consultants. 18. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during Consultant's regular business hours or by facsimile before or during Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. 19. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California. 20. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument. 21. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 22. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk. 23. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he /she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.