HomeMy WebLinkAbout2010-215
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RESOLUTION NO. 2010-215
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A RENEWAL
3 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROGRESSIVE
4 SOLUTIONS, INC FOR REVENUE RECOVERY AND SOFTWARE LICENSE
AGREEMENT FOR SOFTWARE AND REVENUE RECOVERY SERVICES.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The City Manager of the City of San Bernardino is hereby authorized to execute
on behalf of said City an Agreement between the City of San Bernardino and
Progressive Solution, Inc., a copy of which is attached hereto, marked Exhibit "A" and
incorporated herein by reference as fully as though set forth at length.
SECTION 2.
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The authorization to execute the above referenced Agreement is rescinded if not
issued within sixty (60) days of the passage ofthis resolution.
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2010-215
"
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
2 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A RENEWAL
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROGRESSIVE
3 SOLUTIONS, INC FOR REVENUE RECOVERY AND SOFTWARE LICENSE
4 AGREEMENT FOR SOFTWARE AND REVENUE RECOVERY SERVICES.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint adjourned
and Common Council of the City of San Bernardino at a regular meeting thereof, held
on the 23rd
June
,2010, by the following vote, to wit:
day of
Council Members:
ABSTAIN
ABSENT
AYES
NAYS
MARQUEZ
x
DESJARDINS
x
BRINKER
x
SHORETT
x
KELLEY
x
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17 MCCAMMACK
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JOHNSON
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~ar~ity~
i30"-" day of June
The foregoing resolution is hereby approved this
2010.
0'... ~
Pat' k J. Morris, Mayor
lty of San Bernardino
Approved as to
Form and legal content:
~~~NMAN' 2,
By. ~(( t (aa:{
2010-215
EXHIBIT "A"
CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 23rd day of June , 2010,
("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and
PROGRESSIVE SOLUTION, INC a California Corporation ("CONSULTANT").
WITNESSETH:
A. WHEREAS, CITY proposes to have CONSULTANT perform the services described
herein below; and
B. WHEREAS, CONSULTANT represents that it has that degree of specialized
expertise contemplated within California Government Code, Section 37103, and holds all necessary
licenses to practice and perform the services herein contemplated; and
C. WHEREAS, CITY and CONSULTANT desire to contract for revenue recovery,
automation & professional services to augment CITY'S revenue enhancement and efficiency efforts
as described in Exhibits "B" and "C", attached hereto; and
D. WHEREAS, no official or employee of CITY has a financial interest, within the
provisions of California Government Code, Sections 1090-1092, in the subject matter of this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. For the remuneration stipulated, CONSULTANT shall provide the
professional services described in the Scope of Services attached hereto as Exhibits "B" and "C",
and incorporated herein by this reference. If a conflict arises between the Proposal and this
Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall
govern.
1.2. Professional Practices. All professional services to be provided by CONSULTANT
pursuant to this Agreement shall be provided by personnel identified in the Proposal and in a manner
consistent with the standards of care, diligence and skill ordinarily exercised by professional
consultants in similar fields and circumstances in accordance with sound professional practices.
CONSULTANT also warrants that it is familiar with all laws that may affect its performance ofthis
Agreement and shall advise CITY of any changes in any laws that may affect CONSULTANT's
performance of this Agreement. CONSULTANT further represents that no CITY employee will
provide any services under this Agreement.
Exhibit "A"
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2010-215
1.3. Warrantv. CONSULTANT warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws including, but
not limited to, those laws related to minimum hours and wages; occupational health and safety; fair
employment and employment practices; workers' compensation insurance and safety in employment;
and all other Federal, State and local laws and ordinances applicable to the services required under
this Agreement. CONSULTANT shall indemnify and hold harmless CITY from and against all
claims, demands, payments, suits, actions, proceedings, and judgments of every nature and
description including reasonable attorneys' fees and costs, presented, brought, or recovered against
CITY for, or on account of any liability under any of the above-mentioned laws, arising from or
related to CONSULTANT's performance under this Agreement.
1.4. Non-discrimination. In performing this Agreement, CONSULTANT shall not engage
in, nor permit its officers, employees or agents to engage in, discrimination in employment of
persons because of their race, religion, color, national origin, ancestry, age, mental or physical
disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted
pursuant to Section 12940 of the Government Code. Violation of this provision may result in the
imposition of penalties referred to in Labor Code, Section 1735.
1.5 Non-Exclusive Agreement. CONSULTANT acknowledges that CITY may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services contemplated
by this Agreement.
1.6. Delegation and Assigrunent. This is a personal service contract, and the duties set
forth herein shall not be delegated or assigned to any person or entity without the prior written
consent of CITY. CONSULTANT may engage a subcontractor( s) as permitted by law and may
employ other personnel to perform services contemplated by this Agreement at CONSULTANT's
sole cost and expense.
1.7 Conflicts of Interest. During the term ofthis Agreement, CONSULTANT shall at all
times maintain a duty ofloyalty and a fiduciary duty as to the CITY and shall not accept payment
from or employment with any person or entity which will constitute a conflict of interest with the
CITY.
1.8 CITY Business Certificate. CONSULTANT shall obtain and maintain during the
term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the
City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications,
insurance and approvals of whatever nature that are legally required of CONSULTANT to practice
its profession, skill or business.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Except as provided herein, CONSULTANT shall be paid
compensation as required in Exhibit "B", Section 4.
Exhibit "A"
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2010-215
2.2. Additional Services. CONSULTANT shall not receive compensation for any services
provided outside the scope of services specified in the Proposal unless the CITY, prior to
CONSULTANT performing the additional services, approves such additional services in writing. It
is specifically understood that oral requests and/or approvals of such additional services or additional
compensation shall be barred and are unenforceable.
2.3. Method of Billing. CONSULTANT may submit invoices to CITY for approval. Said
invoice shall be based on the total of all CONSULT ANT's services and realized benefits which have
been completed to CITY's sale reasonable satisfaction. Unless CITY provides CONSULTANT with
written notification to the contrary within 30 days from CONSULTANT's delivery of written
determination to CITY, such CONSULTANT's services will automatically be deemed to have been
completed to CITY's satisfaction. CITY shall pay CONSULTANT's invoice as set forth in Exhibit
"B". The invoice shall describe in detail the services performed and any realized benefits. Any
additional services approved and performed pursuant to this Agreement shall be designated as
"Additional Services" and shall identify the number of the authorized change order, where
applicable, on all invoices.
2.4. Records and Audits. Records of CONSULTANT's services relating to this
Agreement shall be maintained in accordance with generally recognized accounting principles and
shall be made available to CITY for inspection and/or audit at mutually convenient times for a period
of three (3) years from the Effective Date.
3.0. TERM AND NOTIFICATION.
3.1. Term. This Agreement shall commence on the Effective Date and continue through
the completion of services as set forth in Exhibit "B,", Section 2 unless the Agreement is previously
terminated as provided for herein.
3.2 Termination. CITY or CONSULTANT may terminate the services provided under
Section 1.1 ofthis Agreement upon thirty (30) days written notice to the other party. In the event of
termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of
termination.
3.3 Documents. In the event of termination ofthis Agreement, all documents prepared by
CONSULTANT in its performance of this Agreement including, but not limited to, finished or
unfinished background investigations, shall be delivered to the CITY within ten (10) days of delivery
of termination notice to CONSULT ANT, at no cost to CITY. Any use of uncompleted documents
without specific written authorization from CONSULTANT shall be at CITY's sole risk and without
liability or legal expense to CONSULTANT.
4.0. INSURANCE
4.1. Minimum Scope and Limits of Insurance. CONSULT ANT shall obtain and maintain
during the term of this Agreement all of the following insurance coverages:
Exhibit "A"
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2010-215
(a) Commercial general liability, including premises-operations,
productslcompleted operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury with a policy
limit of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence and aggregate.
(b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00), combined
single limits, per occurrence and aggregate.
(c) Workers' compensation insurance as required by the State of California.
4.2. Endorsements. The commercial general liability insurance policy shall contain or be
endorsed to contain the following provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds
with respect to this subject project and contract with City."
(b) Notice: "Said policy shall not terminate, nor shall it be materially changed or
cancelled, nor the coverage reduced, until thirty (30) days after written notice
is given to City."
(c) Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance provided
by this policy."
4.3. Certificates of Insurance. CONSULTANT shall provide to CITY certificates of
insurance showing the insurance coverages and required endorsements described above, in a form
and content approved by CITY, prior to performing any services under this Agreement.
4.4. Non-limiting. Nothing in this Section shall be construed as limiting in anyway, the
indemnification provision contained in this Agreement, or the extent to which CONSULT ANT may
be held responsible for payments of damages to persons or property.
5.0. GENERAL PROVISIONS
5 ,1. Entire Agreement: This Agreement constitutes the entire Agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior writings
and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in
interest at the time of such modification. The terms of this Agreement shall prevail over any
inconsistent provision in any other contract document appurtenant hereto, including exhibits to this
Agreement.
Exhibit "A"
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5.2. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or
mail and shall be addressed as set forth below. Such communication shall be deemed served or
delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time
of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S.
Mail as reflected by the official U.S. postmark if such communication is sent through regular United
States mail.
IF TO CONSULTANT:
IF TO CITY:
Progressive Solutions, Inc.
CITY MANAGER
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Telephone: (909) 384-5122
Fax: (909) 384-5138
P.O. Box 783
Brea, CA 92822
Telephone: (714) 671-1597
Facsimile: (714) 255-9775
5.3. Attornevs' Fees: In the event that litigation is brought by any party in connection with
this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any
of its rights or remedies hereunder or the enforcement of any ofthe terms, conditions, or provisions
hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing
this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this
Agreement.
5.4. Governing Law. This Agreement shall be governed by and construed under the laws
of the State of California without giving effect to that body oflaws pertaining to conflict oflaws. In
the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the
sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino
County, California.
5.5. Assigrunent: CONSULTANT shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of CONSULT ANT's interest in this Agreement without
CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall
be void and shall constitute a breach of this Agreement and cause for termination of this Agreement.
Regardless of CITY's consent, no subletting or assignment shall release CONSULTANT of
CONSULTANT's obligation to perform all other obligations to be performed by CONSULTANT
hereunder for the term ofthis Agreement.
5.6. Indemnification and Hold Harmless. CONSULTANT shall protect, defend,
indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions,
officers, attorneys, agents and employees from any and all claims, losses, demands, suits,
administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage
Exhibit "A"
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2010-215
to property or injuries to or death of any person or persons or damages of any nature including, but
not limited to, all civil claims or workers' compensation claims arising from or in any way related to
CONSULTANT's performance under this Agreement, except when caused solely by the CITY's
negligence.
5.7. Independent Contractor. CONSULTANT, at all times while performing under this
Agreement, is and shall be acting at all times as an independent contractor and not as an agent or
employee of CITY. CONSULTANT shall secure, at his expense, and be responsible for any and all
payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security,
State Disability Insurance Compensation, Unemployment Compensation, and other payroll
deductions for CONSULTANT and its officers, agents, and employees, and all business licenses, if
any are required, in connection with the services to be performed hereunder. Neither
CONSULT ANT nor is officers, agents and employees shall be entitled to receive any benefits which
employees of CITY are entitled to receive and shall not be entitled to workers' compensation
insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid
holidays, pension, profit sharing or social security on account of CONSULTANT and its officers',
agents' and employees' work for the CITY. This Agreement does not create the relationship of agent,
servant, employee partnership or joint venture between the CITY and CONSULTANT.
5.8 Conflict of Interest Disclosure: CONSULTANT or its employee may be subject to the
provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such
persons to disclose financial interests that may be materially affected by the work performed under
this Agreement, and (2) prohibits such persons from making or participating in making decisions that
will have a foreseeable financial affect on such interest.
CONSULTANT shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds for termination of the Agreement by CITY.
5.9. Responsibilitv for Errors. CONSULTANT shall be responsible for its work and
results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or
explanation as may be required by the CITY's representative, regarding any services rendered under
this Agreement at no additional cost to CITY. In the event that an error or omission attributable to
CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other
CONSULTANT professional services necessary to rectify and correct the matter to the extent that a
reasonable person would deem specified services to be met sale satisfaetioa of CITY and to
participate in any meeting required with regard to the correction.
5.10. Prohibited Employment. CONSULTANT shall not employ any current employee of
CITY to perform the work under this Agreement while this Agreement is in effect.
5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and
negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
Exhibit "A"
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2010-215
5.12. No Third Partv Beneficiarv Rights. This Agreement is entered into for the sole
benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental
beneficiaries ofthis Agreement and no third party shall have any right in, under or to this Agreement.
5.13. Headings Paragraphs and subparagraph headings contained in this Agreement are
included solely for convenience and are not intended to modify, explain or to be a full or accurate
description of the content thereof and shall not in anyway affect the meaning or interpretation of this
Agreement.
5.14. Amendments. Only a writing executed by all of the parties hereto or their respective
successors and assigns may amend this Agreement.
5.15. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver
of those rights to require such performance or compliance. No waiver of any provision of this
Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe
party against whom enforcement of a waiver is sought. The waiver of any right or remedy with
respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect
to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
5.16. Severabilitv. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not
affect the validity or enforceability ofthe remaining terms and provisions hereof or ofthe offending
provision in any other circumstance, and the remaining provisions ofthis Agreement shall remain in
full force and effect.
5.17. Counterparts: This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original. All counterparts shall be construed together and shall constitute
one agreement.
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Exhibit "A"
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2010-215
5.18. Corporate Authoritv. The persons executing this Agreement on behalf ofthe parties
hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by doing so, the parties hereto are formally bound to the provisions ofthis Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and
through their respective authorized officers, as ofthe date first above written.
CITY OF SAN BERNARDINO,
A mu cipal corporation
CONSULTANT
/12 d G/l.f ~ .(/(/ Ii ~ 0' C 1/ fZA.f Iiv(',
/Jr: L.. /1- f;a&J
Charles McNeely, City
Signature
r; U;.nA/ ,{, /I Of},?f At4~ , I'~f 1.1' ~
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Name and Title
APPROVED AS TO FORM:
JAMES F. PENMAN,
City Attorney
~ 1~<u"'.2~ct
Exhibit "A"
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2010-215
EXHIBIT B
PROGRESsiVE SOLUTIONS"
THIS AGREEMENT by and betvveen the City of San Bernardino, a
municipal corporation, hereinafter referred to as "CITY", and Progressive
Solutions, Inc., a California Corporation, hereinafter referred to as "PSI" is
made and entered into on July 1, 2010.
RECITALS
WHEREAS, the CITY desires to obtain state of the art revenue recovery
automation & professional services to augment CITY's revenue
enhancement efforts; and WHEREAS, PSI has the necessary software,
professional expertise and skill to provide such services.
NOW. THEREFORE, the purpose of this AGREEMENT is to retain PSI
as a consultant to CITY to implement the revenue recovery module and
to perform services specified in SECTION 1 of this AGREEMENT as
authorized by CITY,
Management and oversight of the functionality and/or services detailed in
this agreement by CITY will be performed by the City Clerk and/or hislher
designee, herein after referred to as the ADMINISTRATIVE DESIGNEE.
THE PARTIES HEREBY AGREE:
SECTION 1 SCOPE OF OFFERING.
PSI shall assist CITY staff to maximize CITY's revenue recovery results.
To that end. UDon direction of the ADMINISTRATIVE DESIGNEE, PSI
shall:
License Revenue Recovery Automation for CITY Staff:
Facilitate use of state of the art-revenue recovery/discovery
software suite which will:
o Automate processing of AB990 data, AB63 data and other data
Provide appropriate written responses to Frequently
Asked Questions (FAQ's) as well as detailed procedures.
Perform cross checks using revenue recovery software
and available data.
Automatically create leads for automated follow-up.
. Create letters for notification of non compliance as well as
providing a tracking mechanism for all additional follow-
up,
Provide generation of ad hoc reports of payment received
as a result of non compliant business discovery efforts
over any period (day, week, month, year etc.).
o Automate Business, Transient Occupancy, Franchise & other
Audits
Provide appropriate written responses to Frequently
Asked Questions (FAQ's) as well as detailed procedures.
Provide staff with ability to prioritize audit leads and
flag/select leads for audit.
Provide staff with ability to review both completed as well
as assigned audits.
PSI will enter audit findings so that CITY may generate
invoices of detailed audit findings via the UcenseTrackTN
software.
Provide ability to generate ad hoc reports of payment
received as a result of audit findings over any period (day,
week, month, year etc.).
o Work. with CITY to test automated electronic transmission of
data for submittal to SBE (State Board of Equalization) to
correct misallocations, and follow-through to ensure that the
SBE makes the corrections.
o Work to facilitate revenue trend analysis & forecasting.
o Provide ability for staff to generate reports for evaluation of the
success of each/all recovery endeavors as required by CITY.
Optional Services
Collaborate with CITY staff to identify service priorities.
Meet with CITY staff to affirm service objectives, scope and
procedures, schedule meetings and plan logistical matters.
Represent the CITY for the purposes of examining agreements and
records related to the scope of this AGREEMENT.
. Provide staff to perform either field or desk audits of Business
Registration, Transient Occupancy, Franchise and/or other Audits.
. Upon completion of any audit, prepare findings, submit report to
CITY & attach audit report to the appropriate account.
Collaboratively (with CITY staff) perform identification of businesses
that should be contacted regarding a business outreach program to
increase the amount use tax that is self accrued to the CITY.
Revenue Enhancement Agreement (1,5)
2010-215
REVENUE RECOVERY
SOFTWARE & SERVICES AGREEMENT
Enable CITY staff to establish gross receipt levels which may be
used to set accounts with either a critical or non critical "audit
status". The audit status may be used as a tool to schedule audits
for those accounts where filing errors and a financial return to the
CITY is likely.
. Upon CITY request, supporting documentation submitted with
invoices provided to CITY shall indude: the business account
numbers where recovery has occurred, the amount recovered for
each account & the source of CITY'S REALIZED BENEFITS (Le,
AB63, AB990, Fictitious Business Name Listings, CITY Vendor
Listings, etc.)
As CITY budgets and funding are often constrained, this agreement
provides software for revenue enhancement servicesJsoftware which
facilitates significant revenue recovery. Any authorized revenue recovery
audits are generally performed by reviewing the current year and the prior
3 years records at the same time. Postponement of audits or other
services would likely cost the CITY countless dollars should any delay
limit the revenue recovery period. Financially responsible cities generally
elect to continue audit and other services to retain the possibility of
significant revenue recovery.
PSI is expected to expand opportunities for both CITY and PSI to realize
additional Revenue. Revenue recovery activities shall be approved by
CITY in writina prior to implementation.
CITY may at its sole discretion assign to PSI additional, specific work in
addition to the described services (I.e. small daims representation).
Compensation for additional work assignments shall be mutually agreed
upon by means of a written letter agreement.
PSI will at CITY's written request, assist CITY on an "as-needed" basis by
providing technical support on contract issues, tax issues and questions
regarding estimated revenue on proposed projects, revenue-sharing
negotiations, budget projections, software systems, available audit
programs, development disposition and development agreements and in
other related areas as questions arise.
SECTION 2
TERM OF AGREEMENT.
The tenn of this AGREEMENT shall be from July 1, 2010 to Juno 30,
2013, indusive, subject to the provisions of SECTION 11 of this
AGREEMENT,
SECTION 3
SCHEDULE OF PERFORMANCE.
PSI shall commence work under this AGREEMENT within 10 days of
execution of this AGREEMENT by implementing the revenue recovery
automation suite, customizing recovery letters, providing answers to
frequently asked questions and instruction. Recovery projects may be
initiated by CITY and assigned to PSI under this AGREEMENT until June
3D, 2013. The CITY, subsequent to June 30, 2013, may at its sole
discretion renew this Agreement on an annual basis. Time is of the
essence in this AGREEMENT.
SECTION 4
COMPENSATION AND PAYMENT
"REALIZED BENEFITS" shalf be defined as increased CITY accounts
receivable due to the identification or non-payment and/or underpayment
of a tax (including tax levy), receipt of an audit report which verifies the
CITY has received the fuff extent of tax due, recovery of tax payments
made on exempt purchases, reduction of prior, current and future
accounts payable and the reduction of future liabilities.
"CONTINGENT FEE" shall be defined as compensation to PSI in
consideration of the timely and faithful performance of services set forth
in this AGREEMENT (such as initial setup, training & other services).
Such fees shall be earned by PSI for REALIZED BENEFITS obtained by
the CITY due to PSI's efforts (i.e. initial setup & training), use of the cross
referencing or SBE notification capabilities of the licensed business
license/registration & recovery software.
As situations may arise where legal or other challenges limit PSI's ability
to perform services or obtain compensation, CITY shall ensure
continuation of services via payment of non contingent fees. Such
challenges may result from potential or actual litigation arising from CITY
municipal code, ordinances, resolutions, policies, procedure, etc. Other
possible challenges include but are not limited to: refusal of access to
records & litigation.
Page 1 of 5jJ'
PROGRESSIVE SOLUTIONS"
~NON CONTINGENT FEE" shall be defined as reimbursement of all or
part of PSI's expenses, The NON CONTINGENT FEES below shall only
be invoiced should a CONTINGENT FEE CALCULATION for a requested
service identified below not exceed the minimum NON CONTINGENT
fee.
Examples of non contingent costs relating to PSI orovided services
include:
);l> $750 minimum fee for each ~ business or occupancy tax
audit (induding written audit findings)
)- $50 minimum for each desk business tax audit
}o> $1,250 for each field franchise fee audit (including written audit
findings)
}o> all reasonable related expenses incurred
Reasonable expenses shall include but are not limited to: meals,
transportation, lodging, postage and costs of data obtained to
identify non compliant businesses & individuals.
"ONE TIME" recoveries shall be defined as REAliZED BENEFITS
derived from Audits of Transient Occupancy, Business license and/or
other data. Audits may be prioritized and scheduled for licensed
businesses to examine documentation generated within the audit period
(typically for the current and 3 prior years).
"ONGOING" recoveries shall be defined as REALIZED BENEFITS
derived from newly identified businesses, sales tax misallocations or
existing businesses without resale permits that have been identified as
requiring them.
PSI's professional services and revenue enhancement software may also
serve as an invaluable backstop audit program to decrease costs and
supplement services offered/provided by another vendor. PSI offers a
mechanism for marking PSI identified accounts. In the event of a conflict,
CITY, upon presentation to PSI of evidence of a conflict will receive credit
for all amounts paid to PSI which result from the conflict(s).
As a direct result of this agreement, the CITY obtains the potential of a
large financial retum with limited financial outlay. As no budget
commitment need be made by the CITY, 2!.! risk is absorbed by PSI.
PSI business licensing software has been designed to facilitate follow-up
notice processing. PSI will make a report of findings available to CITY
based upon the municipal code in effect at the time. Should CITY elect to
waive or exempt payment of all or part of the amounts due (as reported
by PSI) for any reason. the ADMINISTRATIVE DESIGNEE will have 14
days from notification of realized benefits identified to modify the
amount(s) due. In such case the contingency fee due to PSI shall be
based upon the amount due determined by the ADMINISTRATIVE
DESIGNEE of this agreement (The amount due may be a dramatically
reduced determination that has been determined to be in the best
interests of the CITY for reasons either specified or unspecified).
Consequently, the contingent payment shall be due and payable upon
invoice received subsequent to the date of the decision. Otherwise the
contingency fee due to PSI shall be based upon the amount(s) due per
the submitted PSI report of findings. Audit related contingency fees will
be calculated from the report of findings and invoiced to CITY no ear1ier
than 14 days from presentation of audit report(s) to CITY staff for their
review. In the event PSI findings are found to be invalid by an
administrative or judicial proceeding, PSI will revise said findings and
credit CllY with any CONTINGENT FEES paid,
1) CITY agrees to pay CONTINGENT FEES to PSI from recoveries of
REAL1ZED BENEFITS such as deficiencies from eligible prior periods
(plus associated charges for penalties and interest). Said recoveries
include amounts recovered, refunded, credited, or any other
consideration received by the CITY in lieu or as a result of audits,
licensed software or other PSI provided service.
2) CONTINGENT FEE CALCULATIONS: When PSI's audits, licensed
software or other PSI provided services result in the detection and
correction of errors/omissions that the CITY and PSI mutually agree will
produce ONGOING (rather than ONE TiME) benefits. PSI's
compensation shall be based upon REALIZED BENEFITS to the CITY
plus revenue recovered during the first twelve consecutive quarters
following correction.
100% of the REALIZED BENEFITS shall apply toward reimbursable costs
and NON CONTINGENT expenses. For all funds recovered (REALIZED
BENEFITS) in excess of NON CONTINGENT expenses and agreed
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CONTINGENT fees for service. CllY shall pay PSI a 12,5% Contingent
Fee for REAL1ZED BENEFITS. While PSI services are generally based
upon REALIZED BENEFITS and subject to CONTINGENT FEE
CALCULATIONS. when there is a minimum NON CONTINGENT fee. the
greater of the two fees shall be the amount invoiced. Should CITY
authorize and direct PSI to perform revenue recovery functions with PSI
staff exclusively as opposed to the normal self service arrangement, the
contingent fee for REALIZED BENEFITS resulting from such PSI activity
after recovery of Software License fees will be 23%.
SECTION 5
CllY'S OBLlGA -nONS
To facilitate revenue recovery via audits andfor optimal utilization of the
automated cross referencing capabilities available within the business
licensing software, the CITY agrees to support PSI by providing or
arranging to provide (to the best of its ability):
Letters of introduction (as mutually deemed necessary)
Venues and protocol for inviting businesses for question & answer
sessions, hearings and/or appeals regarding scheduled audits.
Requests for information (as required for revenue recovery
purposes) from third parties (such as the state, county, trash & utility
companies, etc.)
Codes & ordinances covering each tax recovery effort authorized by
the CllY,
Resources for obtaining state franchise tax (AB63) and/or state
board of equalization (AB990) data.
Resources for importing and processing AB63 & AB990 data to
affect revenue recovery.
With regard to REALIZED BENEFITS and CONTINGENT FEES. the
CITY agrees to:
Require payments in accord with the appropriate municipal code
code sections especially with regard to requiring payment of all
current & prior year obligations.
Invoice responsible parties via the business licensing system for
REAL1ZED BENEFITS resulting from PSI's software or services
within 15 days of notification.
Notify PSI in writing of:
o Recovery payments received within 5 days from receipt (Or
allow PSI internet access to such data) so that PSI may invoice
the CllY,
o Decisions or communications Vllhich document CITY's benefit
from REALIZED BENEFITS including, but not iimited to,
increased accounts receivable (including tax levy), reduction of
prior, current and future accounts payable and the reduction of
future liabilities within 5 days from the date the benefits take
effect or from receipt of notification whichever is first (Or allow
PSI internet access to such data).
o All other relevant information and progress reports received
related to the above REAliZED BENEFITS and payment. (Or
allow PSI internet access to such data)
o Any proposed change in municipal law which has the potential
to impact this agreement at least 60 days prior to
implementation of the change. PSI will then reserve the right to
either reaffinn or renegotiate the terms of this agreement.
Make payment to PSI:
o Within 24 hours from receipt of an invoice from PSI for
decisions by the ADMINISTRATIVE DESIGNEE to modity
(reduce) amounts due from audits or other findings for CITY
business reasons. The modified amounts (and the
corresponding recovery fee due PSI) shall become NON
CONTINGENT. due & payable,
o Within 14 days from receipt of PSI's invoice for NON
CONTINGENT expenses. CITY agrees that payment shall not
be delayed even if no funds have been recovered.
o Within 14 days from receipt of PSI's invoice for CONTINGENT
expenses Vllhich do not exceed the aggregate revenue
recovered under this agreement or any subsequent
agreements.
o Within 30 days from receipt of PSI's invoice for contingent
RECURRING recoveries.
SECTION 6
INDEPENDENT CONTACTOR.
It is understood and agreed that PSI, in the performance of the work and
services agreed to be performed by PSI, shall act as and be an
independent contractor and not an agent or employee of CITY; and as an
independent contractor, PSI shall obtain no rights to retirement benefits
pageZOf:;
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or other benefits which accrue to CITY employees, and PSI hereby
expressly waives any claim it may have to any such rights.
SECTION 7
ASSIGNABILllY.
The parties agree that the expertise and experience of PSI are material
considerations for this AGREEMENT. PSI shall not assign or transfer any
interest in this AGREEMENT nor the pertormance of any of PSI's
obligations hereunder, without the prior written consent of CITY, and any
attempt by PSI to so assign this AGREEMENT or any rights, duties or
obligations arising hereunder shall be void and of no effect.
SECTION 8
INDEMNIFICATION.
PSI shall defend, indemnify and hold harmless CITY, its officers,
employees and agent against any claim, loss of liability arising out of or
resulting in any way from work performed under this AGREEMENT due to
willful or negligent acts (active or passive) or omissions by PSI,
employees or agents. The acceptance of said services and duties by
CITY shall not operate as a waiver of such right of indemnification. This
provision shall survive termination, completion or expiration of this
AGREEMENT. Said sums shall include, in the event of legal action, court
costs, expense of litigation and reasonable attorney's fees. The costs,
salary and expenses of the CITY Attorney and members of his office in
enforcing the AGREEMENT on behalf 01 the CITY shall be considered
"attorneys fees" for the purposes of this paragraph.
SECTION 9
INSURANCE REQUIREMENTS.
PSI, at PSI's sole cost and expense, shall procure and maintain for the
duration of this AGREEMENT insurance against claims for injuries to
persons or damages to property which may arise from, or in connection
with, the performance of the services hereunder by PSI, its agents,
representatives or employees. Said policy shall have at least a combined
single limit of $1 ,000,000 for bodily injury and property damage.
PSI shall provide CITY with a copy of certificate of such insurance upon
request.
SECTION 10
NONDISCRIMINATION.
PSI shall not discriminate, in any way, against any person on the basis of
age, sex, race, color, creed or national origin in connection with or related
to the performance of this AGREEMENT.
SECTION 11
TERMINATION.
A. With the exception of provisions which survive termination of this
agreement (Le. relating to compensation earned from Realized
Benefits), CITY and PSI shall have the right to terminate this
AGREEMENT (the non surviving provisions), without cause, by
giving not less than thirty (30) days written notice of termination.
B. If PSI or CITY defaults on any of its obligations under this
AGREEMENT and fails to cure its default within 60 days after having
been given notice of such default, in addition to all other remedies
provided by law, either party may terminate this AGREEMENT
immediately upon written notice.
C. In the event of termination, PSI shall deliver to CITY copies of all
reports, documents, and other work performed by PSI under this
AGREEMENT, and upon receipt thereof, CITY shall pay PSI for
services performed and reimbursable expenses incurred to the date
of termination in accordance with the terms and conditions of
Section 4 hereto.
D. Because the software and services performed by PSI prior to
termination may result in CITY's receipt of revenue after termination
and because this receipt of revenue entitles PSI to payment from the
CITY even after expiration of contract or termination, CITY agrees to
provide to PSI subseauent to expiration or termination of this
AGREEMENT such information as is necessary to enable PSI to
calculate the compensation due to PSI as a result of this receipt of
revenue by the CITY, and PSI shall maintain the confidentiality of
this information as required by the AGREEMENT. In light of
Revenue and Taxation Code Section 7056, PSI shall be deemed
"under contract" subsequent to expiration of contract or receipt of
notice of termination from the CITY for the sole and limited purpose
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of enabling PSI to have access to said information to calculate
compensation.
SECTION 12
GOVERNING LAW.
CITY and PSI agree that the law governing this AGREEMENT shall be
that of the State of California.
SECTION 13
COMPLIANCE WITH LAWS.
PSI shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local governments.
SECTION 14
CONFIDENTIAL INFORMATION.
All data, documents, discussions or other information developed or
received by or for PSI in performance of this AGREEMENT are
confidential and not to be disclosed to any person except as authorized
by CITY, or as required by law. PSI agrees to be bound by all covenants
contained in the attached "CERTIFICATE OF CONFIDENTIALllY",
SECTION 15
WAIVER.
PSI agrees that waiver by CITY for any breach or violation of any term or
condition of this AGREEMENT shall not be deemed to be a waiver of any
other term or condition contained herein or a waiver of any subsequent
breach or violation of the same or any other term or condition. The
acceptance by CITY of the performance of any work or services by PSI
shall not be deemed to be a waiver of any term or condition of this
AGREEMENT.
SECTION 16 PSI's BOOKS AND RECORDS.
A. PSI shall maintain any and all ledgers, books of accounts, invoices,
vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services, or expenditures, and
disbursements, charged to CITY for a minimum period of three (3)
years, or for any longer period required by law, from the date of final
payment to PSI pursuant to this AGREEMENT.
S. PSI shall maintain all documents and records which demonstrate
performance under this AGREEMENT for a minimum period of three
(3) years, or for any longer period required by law, from the date of
termination, completion or expiration of this AGREEMENT.
C. Any records or documents required to be maintained pursuant to
this AGREEMENT shall be made available for inspection or audit, at
any time during regular business hours, upon written request by the
CITY CLERK or his/her designee. Upon request, electronic copies
of such documents or instructions on how CITY may produce the
desired documents via the licensed business registration software
shall be provided to CITY via email. Unless an alternative is mutually
agreed upon, any records not available via the licensed business
registration software shall be available for inspection at PSI's
address indicated for receipt of notices in the AGREEMENT.
D. Where CITY has reason to believe that such records or documents
may be lost or discarded due to dissolution, disbandment or
cessation of PSI's business, CITY may, by written request by any of
the corporate officers, require that copies of all written records
pertaining to CITY be provided to CITY within 10 days from the date
of the written request.
E. Any information contained in, or derived from, States Sales and Use
Tax records furnished by the State Board of Equalization or State
Franchise Tax Board are and shall remain the sole property of the
CITY,
SECTION 17 NOTICES.
Unless otherwise specifically provided, all notices, including notice of
termination provided for hereunder, shall be in writing and delivered to
designated contact at the respective party's address indicated below in
the execution block. All notices and other communications required or
permitted to be given or made pursuant to this Agreement shall deemed
delivered one (1) day after being sent by a nationally (or internationally)
recognized overnight courier service or three (3) days after being sent
certified U.S. mail, return receipt requested, postage prepaid.
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SECTION 18
PRIOR AGREEMENTS AND AMENDMENTS.
This AGREEMENT, including all Exhibits attached hereto, represent the entire understanding of the parties as to those matters contained herein. No
prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This AGREEMENT may only be
modified by a written amendment duly executed by the parties to this AGREEMENT.
EXECUTED as of the day and year first above stated.
CllY:
CITY OF SAN BERNARDINO
CilyCler1<
300 North '0' Slreet
San Bernardino, CA 92418
PSI:
PROGRESSIVE SOLUTIONS, INC
P,O, Box 783
Brea,CA928L fij/c1U
By: Glenn Vodhanel
By:
Title:
CilyCler1<
Title:
President
Date:
Date:
7-/~/LM
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2010-215
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CERTIFICATE OF CONFIDENTIALITY
CERTIFICATE OF CONFIDENTIALITY
The following conditions specified in Section 7056 (b), (1) of the State of California Revenue and Taxation Code are hereby made part of this
AGREEMENT entered into by and between CITY and PSI:
A. PSI is authorized by this AGREEMENT to examine sales and use tax records of the Stale Board of Equalization provided to CITY pursuant to
contract under the Bradley-Bums Uniform Sales and Use Tax Law.
B. PSI is required to disclose information contained in or derived from those sales and use tax records only to an officer or employee of CITY
who is authorized by resolution of the City Council to examine the information.
C. PSI is prohibited from pelforming consulting services for any retailer doing business in CITY during the term of this AGREEMENT.
D. PSI is prohibited from retaining the information contained in, or derived from, those sales and use tax records after the AGREEMENT has
expired.
Information obtained by examination of Board records shall be used only for purposes related to collection of local sales and use taxes or for other
governmental functions of CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the California Revenue and Taxation Code.
The resolution shall designate PSI as a person authorized to examine sales and use tax records and shall certify that this AGREEMENT meets the
requirements set forth above in Section 7056 (b) (1) of the California Revenue and Taxation Code.
PSI hereby certifies that any and all information utilized in the conduct of work performed is to be utilized only for this purposes authorized by CITY and
by the Bradley-Burns Uniform Local Sales and Use Tax Law.
PROGRESSIVE SOLUTIONS. . I" If'
By .b-, It jf ~
Title: President
Date: 6/21/2010
Revenue Enhancement Agreement (1,5)
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