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ORIGINAL
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
From: Rachel Clark, City Clerk Subject: Resolution of the Mayor and
Common Council of the City of San
Dept: City Clerk Bernardino authorizing the execution of
a renewal agreement between the City
Date: 6-3-10 of San Bernardino and Progressive
Solutions Inc. for revenue recovery and
software license agreement for software
and revenue recovery services.
M/CC Meeting Date: 6-21-10
Synopsis of Previous Council Action:
Resolution No. 2007-450 adopted November 19, 2007 authorizing a professional
services agreement with Progressive Solutions for July 1, 2007 to June 30, 2010 and to
install LicenseTrack Web Renewal software.
Resolution No. 2003-204 adopted July 21, 2003 authorizing a professional services
agreement and software license agreement with Progressive Solutions, Inc to install
LicenseTrack and CashierCentral software to replace the Business Registration
Division's licensing system and to provide revenue enhancement services.
Recommended Motion:
Adopt Resolution
Signature
Contact person: Cindy RiiPr-hter Phone- '3200
Supporting data attached: Yes Ward: All Wards
FUNDING REQUIREMENTS: Amount: 0
Source:
Finance:
Council Notes: / ' ` `-75`� 2,0/0 —°275
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing
the execution of a renewal agreement between the City of San Bernardino and Progressive
Solutions Inc. for revenue recovery and software license agreement for software and
revenue recovery services.
Background:
In 2003 the original agreement with Progressive Solutions was approved by the Mayor and
Common Council and allowed for the purchase of new business registration software and
the conversion of existing data. In 2007, our renewal with Progressive Solutions also
included authorization to install software for on-line web renewals. Renewal of our
Agreement with Progressive Solutions will allow us to continue to utilize not only the core
software and web renewal functions, but those aspects of LicenseTrack software that allow
the import of State Board of Equalization and Franchise Tax Board data and comparison
to our existing records, and the continuation of business audits.
Since our partnership with Progressive Solutions began, over $275,000 has been recovered
from the State Board of Equalization data comparison (AB990). This is ongoing, with data
being imported and compared monthly. Without the revenue recovery agreement, this
feature is disabled in the LicenseTrack software. In addition, $112,000 was realized from
audits completed in 2006. We are currently undertaking another audit review and have
discovered over $44,000 in under reported revenue. Renewal of the agreement will allow
the continuation of business registration audits and the import/comparison of data received
from various agencies.
The web renewal software module went live in July 2009. To date, over 425 customers
have utilized this feature and the numbers continue to grow each month. This option
provides a great customer convenience feature to our businesses.
Financial Impact:
Contingency fee of 12.5% for realized benefits and any charges for non-contingent services
such as lodging and travel expenses for any on-site audits. Estimated contingency fees for
FY 2010/11 are $10,000 415,000.
The current 09/10 Business Registration Division's budget includes $64,000 for"Other
Professional Services" which provides the funding for the ongoing annual maintenance fees
for LicenseTrack, CashierCentral, and Web Renewals ($23,098). The remaining balance is
available for any contingency fees on realized benefits and charges for non-contingent
services along with credit card processing fees.
Recommendation: Adopt Resolution
i
I RESOLUTION NO. 2010-215 C (/ F'y
2 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.
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1.
8
The City Manager of the City of San Bernardino is hereby authorized to execute
9
10 on behalf of said City an Agreement between the City of San Bernardino and
11 Progressive Solution, Inc., a copy of which is attached hereto, marked Exhibit "A" and
12 incorporated herein by reference as fully as though set forth at length.
13 SECTION 2.
14 The authorization to execute the above referenced Agreement is rescinded if not
15
16 issued within sixty (60) days of the passage of this resolution.
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24 HI
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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.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint adjourned
6 and Common Council of the City of San Bernardino at a regular meeting thereof, held
7 on the 23rd day of June , 2010, by the following vote, to wit:
8
Council Members: AYES NAYS ABSTAIN ABSENT
9
10 MARQUEZ %
11 DESJARDINS X
12 BRINKER x
13 SHORETT x
14 KELLEY x
15
16 JOHNSON x
17
MCCAMMACK %
18
19 Rac el G. Clark, City Clerk
20 The foregoing resolution is hereby a pp roved this a30 n+
day of June ,
21 2010.
22
23 Pa k J. Moms, Mayor
24 ity of San Bernardino
Approved as to
25 Form and legal content:
26 JAM PENMAN,
27 ty ey
By.
28
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. Swne 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 of this
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"
�v
2010-215
1.3. Warran . 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 Assignment. 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 of this Agreement,CONSULTANT shall at all
times maintain a duty of loyalty 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"
2010—us
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 CONSULTANT'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 previous y
terminated as provided for herein.
3.2 Termination. CITY or CONSULTANT may terminate the services provided under
Section 1.1 of this 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 of this 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 CONSULTANT, 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 Scone and Limits of Insurance. CONSULTANT shall obtain and maintain
during the term of this Agreement all of the following insurance coverages:
Exhibit"A"
V
2010-215
(a) Commercial general liability, including premises-operations,
products/completed 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 CI'T'Y 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 any way,the
indemnification provision contained in this Agreement,or the extent to which CONSULTANT 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"
a
2010-215
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
P.O. Box 783 300 North "D" Street
Brea, CA 92822 San Bernardino, CA 92418
Telephone: (714) 671-1597 Telephone: (909) 384-5122
Facsimile: (714) 255-9775 Fax: (909)384-5138
5.3. Attomeys'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 of the 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 of laws pertaining to conflict of laws. hi
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. Assignment: CONSULTANT shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of CONSULTANT'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 of this 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"
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
CONSULTANT 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 maybe subject to the
provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such
persons to disclose financial interests that maybe 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. Responsibility for Errors. CONSULTANT shall be responsible for its work and
results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or
explanation as maybe 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 satisfastien 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"
2010-215
5.12. No Third Party Beneficiary 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 of this 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 any way 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 of the
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 of the remaining terms and provisions hereof or of the offending
provision in any other circumstance,and the remaining provisions of this Agreement shall remain in
full force and effect.
5.17. Countemarts: This Agreement maybe 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.
Exhibit"A'
2010-215
5.18. Corporate Authority. The persons executing this Agreement on behalf of the 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 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and
through their respective authorized officers, as of the date first above written.
CITY OF SAN BERNARDINO, CONSULTANT
A municipal corporation YO-12 oM ft!/vI-2- r dC /2Z4 f rAe,
1 1/11, D�4 - -/� - pr�- .44 /7
Charles McNeely, City kiagV Signature
('C .v
Name and Title
APPROVED AS TO FORM:
JAMES F. PENMAN,
City Attorney
Exhibit"A"
t/vl
2010-215
EXHIBIT B
2010-215
PROGRESS]VE SOLUTIONS' REVENUE RECOVERY
SOFTWARE & SERVICES AGREEMENT
THIS AGREEMENT by and between the City of San Bernardino, a Enable CITY staff to establish gross receipt levels which may be
municipal corporation, hereinafter referred to as"CITY",and Progressive used to set accounts with either a critical or non critical "audit
Solutions,Inc.,a California Corporation,hereinafter referred to as"PSI"is status". The audit status may be used as a tool to schedule audits
made and entered into on July 1,2010. for those accounts where filing errors and a financial return to the
RECITALS CITY is likely.
Upon CITY request, supporting documentation submitted with
WHEREAS,the CITY desires to obtain state of the art revenue recovery invoices provided to CITY shall include: the business account
automation & professional services to augment CITY's revenue numbers where recovery has occurred, the amount recovered for
enhancement efforts; and WHEREAS, PSI has the necessary software, each account & the source of CITY'S REALIZED BENEFITS (i.e.
professional expertise and skill to provide such services. AB63, AB990, Fictitious Business Name Listings, CITY Vendor
Listings,etc.)
NOW, THEREFORE, the purpose of this AGREEMENT is to retain PSI
as a consultant to CITY to implement the revenue recovery module and As CITY budgets and funding are often constrained, this agreement
to perform services specified in SECTION 1 of this AGREEMENT as provides software for revenue enhancement services/software which
authorized by CITY. facilitates significant revenue recovery. Any authorized revenue recovery
audits are generally performed by reviewing the current year and the prior
Management and oversight of the functionality and/or services detailed in 3 years records at the same time. Postponement of audits or other
this agreement by CITY will be performed by the City Clerk and/or his/her services would likely cost the CITY countless dollars should any delay
designee,herein after referred to as the ADMINISTRATIVE DESIGNEE. limit the revenue recovery period. Financially responsible cities generally
THE PARTIES HEREBY AGREE: elect to continue audit and other services to retain the possibility of
significant revenue recovery.
SECTION 1 SCOPE OF OFFERING.
PSI is expected to expand opportunities for both CITY and PSI to realize
PSI shall assist CITY staff to maximize CITY's revenue recovery results. additional Revenue. Revenue recovery activities shall be approved by
To that end, upon direction of the ADMINISTRATIVE DESIGNEE, PSI CITY in writing prior to implementation.
shall:
License Revenue Recovery Automation for CITY Staff: CITY may at its sole discretion assign to PSI additional, specific work in
• Facilitate use of state of the art—revenue recovery/discovery addition to the described services (I.e. small claims representation).
software suite which will: Compensation for additional work assignments shall be mutually agreed
• Automate processing of AB990 data,AB63 data and other data upon by means of a written letter agreement.
• Provide appropriate written responses to Frequently PSI will at CITY's written request,assist CITY on an"as-needed"basis by
Asked Questions(FAQ's)as well as detailed procedures. providing technical support on contract issues,tax issues and questions
• Perform cross checks using revenue recovery software regarding estimated revenue on proposed projects, revenue-sharing
and available data. negotiations, budget projections, software systems, available audit
• Automatically create leads for automated follow-up. programs, development disposition and development agreements and in
• Create letters for notification of non compliance as well as other related areas as questions arise.
providing a tracking mechanism for all additional follow-
up. SECTION 2 TERM OF AGREEMENT.
• Provide generation of ad hoc reports of payment received
as a result of non compliant business discovery efforts The term of this AGREEMENT shall be from July 1, 2010 to June 30,
over any period(day,week,month,year etc.). 2013, inclusive, subject to the provisions of SECTION 11 of this
• Automate Business, Transient Occupancy, Franchise & other AGREEMENT.
Audits SECTION 3 SCHEDULE OF PERFORMANCE.
• Provide appropriate written responses to Frequently
Asked Questions(FAQ's)as well as detailed procedures. PSI shall commence work under this AGREEMENT within 10 days of
• Provide staff with ability to prioritize audit leads and execution of this AGREEMENT by implementing the revenue recovery
flag/select leads for audit. automation suite, customizing recovery letters, providing answers to
• Provide staff with ability to review both completed as well frequently asked questions and instruction. Recovery projects may be
as assigned audits. initiated by CITY and assigned to PSI under this AGREEMENT until June -
• PSI will enter audit findings so that CITY may generate 30, 2013. The CITY, subsequent to June 30, 2013, may at its sole
invoices of detailed audit findings via the LicenseTrack- discretion renew this Agreement on an annual basis. Time is of the
software. essence in this AGREEMENT.
• Provide ability to generate ad hoc reports of payment SECTION 4 COMPENSATION AND PAYMENT
received as a result of audit findings over any period(day,
week,month,year etc.). "REALIZED BENEFITS" shall be defined as increased CITY accounts
• Work with CITY to test automated electronic transmission of receivable due to the identification or non-payment and/or underpayment
data for submittal to SBE (State Board of Equalization) to of a tax(including tax levy), receipt of an audit report which verifies the
correct misallocalions, and follow-through to ensure that the CITY has received the full extent of tax due, recovery of tax payments
SBE makes the corrections. made on exempt purchases, reduction of prior, current and future
• Work to facilitate revenue trend analysis&forecasting. accounts payable and the reduction of future liabilities.
• Provide ability for staff to generate reports for evaluation of the
success of each/all recovery endeavors as required by CITY. "CONTINGENT FEE" shall be defined as compensation to PSI in
Optional Services consideration of the timely and faithful performance of services set forth
in this AGREEMENT (such as initial setup, training & other services).
• Collaborate with CITY staff to identify service priorities. Such fees shall be earned by PSI for REALIZED BENEFITS obtained by
• Meet with CITY staff to affirm service objectives, scope and the CITY due to PSI's efforts(i.e.initial setup&training),use of the cross
procedures,schedule meetings and plan logistical matters. referencing or SBE notification capabilities of the Licensed business
• Represent the CITY for the purposes of examining agreements and license/registration&recovery software.
records related to the scope of this AGREEMENT.
• Provide staff to perform either field or desk audits of Business As situations may arise where legal or other challenges limit PSI's ability
Registration,Transient Occupancy,Franchise and/or other Audits. to perform services or obtain compensation, CITY shall ensure
• Upon completion of any audit, prepare findings, submit report to continuation of services via payment of non contingent fees. Such
CITY&attach audit report to the appropriate account. challenges may result from potential or actual litigation arising from CITY
• Collaboratively(with CITY staff)perform identification of businesses municipal code, ordinances, resolutions, policies, procedure, etc. Other
that should be contacted regarding a business outreach program to possible challenges include but are not limited to: refusal of access to
increase the amount use tax that is self accrued to the CITY. records&litigation.
Revenue Enhancement Agreement(1.5) Page 1 of 5 '
2010-215
PROGRESSIVE SOLUTIONV REVENUE RECOVERY
SOFTWARE & SERVICES AGREEMENT
"NON CONTINGENT FEE" shall be defined as reimbursement of all or CONTINGENT fees for service, CITY shall pay PSI a 12.5% Contingent
part of PSI's expenses. The NON CONTINGENT FEES below shall only Fee for REALIZED BENEFITS. While PSI services are generally based
be invoiced should a CONTINGENT FEE CALCULATION for a requested upon REALIZED BENEFITS and subject to CONTINGENT FEE
service identified below not exceed the minimum NON CONTINGENT CALCULATIONS,when there is a minimum NON CONTINGENT fee,the
fee. greater of the two fees shall be the amount invoiced. Should CITY
authorize and direct PSI to perform revenue recovery functions with PSI
Examples of non contingent costs relating to PSI orovided services staff exclusively as opposed to the normal self service arrangement,the
include: contingent tee for REALIZED BENEFITS resulting from such PSI activity
$750 minimum fee for each field business or occupancy tax after recovery of Software License fees will be 23%.
audit(including written audit findings)
$50 minimum for each desk business tax audit SECTION 5 CITY'S OBLIGATIONS
D $1,250 for each field franchise fee audit(including written audit
findings) To facilitate revenue recovery via audits and/or optimal utilization of the
all reasonable related expenses incurred automated cross referencing capabilities available within the business
Reasonable expenses shall include but are not limited to: meals, licensing software, the CITY agrees to support PSI by providing or
transportation, lodging, postage and costs of data obtained to arranging to provide(to the best of its ability):
identify non compliant businesses&individuals. Letters of introduction(as mutually deemed necessary)
Venues and protocol for inviting businesses for question & answer
"ONE TIME" recoveries shall be defined as REALIZED BENEFITS sessions,hearings and/or appeals regarding scheduled audits.
derived from Audits of Transient Occupancy, Business License and/or Requests for information (as required for revenue recovery
other data. Audits may be prioritized and scheduled for licensed purposes)from third parties(such as the state,county,trash&utility
businesses to examine documentation generated within the audit period companies,etc.)
(typically for the current and 3 prior years). Codes&ordinances covering each tax recovery effort authorized by
"ONGOING" recoveries shall be defined as REALIZED BENEFITS the CITY.
identified businesses, sales tax misallocation or Resources for obtaining state franchise tax (AB63) and/or state
derived from newly i board of equalization(AB990)data.
existing businesses without resale permits that have been identified as Resources for importing and processing AB63 & AB990 data to
requiring them. affect revenue recovery.
PSI's professional services and revenue enhancement software may also With regard to REALIZED BENEFITS and CONTINGENT FEES,the
serve as an invaluable backstop audit program to decrease costs and CITY agrees to:
supplement services offered/provided by another vendor. PSI offers a Require payments in accord with the appropriate municipal code
mechanism for marking PSI identified accounts. In the event of a conflict, code sections especially with regard to requiring payment of all
CITY,upon presentation to PSI of evidence of a conflict will receive credit current&prior year obligations.
for all amounts paid to PSI which result from the conflict(s). Invoice responsible parties via the business licensing system for
As a direct result of this agreement, the CITY obtains the potential of a REALIZED BENEFITS resulting from PSI's software or services
large financial return with limited financial outlay. As no budget within 15 days of notification.
commitment need be made by the CITY,all risk is absorbed by PSI. Notify PSI in writing of:
o Recovery payments received within 5 days from receipt (Or
PSI business licensing software has been designed to facilitate follow-up allow PSI intemet access to such data)so that PSI may invoice
notice processing. PSI will make a report of findings available to CITY the CITY.
based upon the municipal code in effect at the time.Should CITY elect to o Decisions or communications which document CITY's benefit
waive or exempt payment of all or part of the amounts due (as reported from REALIZED BENEFITS including, but not limited lo,
by PSI)for any reason, the ADMINISTRATIVE DESIGNEE will have 14 increased accounts receivable(including tax levy), reduction of
days from notification of realized benefits identified to modify the prior, current and future accounts payable and the reduction of
amount(s) due. In such case the contingency fee due to PSI shall be future liabilities within 5 days from the date the benefits take
based upon the amount due determined by the ADMINISTRATIVE effect or from receipt of notification whichever is first (Or allow
DESIGNEE of this agreement (The amount due may be a dramatically PSI internet access to such data).
reduced determination that has been determined to be in the best o All other relevant information and progress reports received
interests of the CITY for reasons either specified or unspecified). related to the above REALIZED BENEFITS and payment. (Or
Consequently, the contingent payment shall be due and payable upon allow PSI intemet access to such data)
invoice received subsequent to the date of the decision. Otherwise the o Any proposed change in municipal law which has the potential
contingency fee due to PSI shall be based upon the amount(s)due per to impact this agreement at least 60 days prior to
the submitted PSI report of findings. Audit related contingency fees will implementation of the change. PSI will then reserve the right to
be calculated from the report of findings and invoiced to CITY no earlier either reaffirm or renegotiate the terms of this agreement.
than 14 days from presentation of audit report(s) to CITY staff for their Make payment to PSI:
review. In the event PSI findings are found to be invalid by an o Within 24 hours from receipt of an invoice from PSI for
administrative or judicial proceeding, PSI will revise said findings and decisions by the ADMINISTRATIVE DESIGNEE to modify
credit CITY with any CONTINGENT FEES paid. (reduce) amounts due from audits or other findings for CITY
1) CITY agrees to pay CONTINGENT FEES to PSI from recoveries of business reasons. The modified amounts (and the
REALIZED BENEFITS such as deficiencies from eligible prior periods Corresponding recovery fee due PSI) shall became NON
(plus associated charges for penalties and interest). Said recoveries CONTINGENT,due&payable.
include amounts recovered, refunded, credited, or any other o CONTINGENT 14 days from receipt g es that invoice for NON
consideration received by the CITY in lieu or as a result of audits, CONTINGENT expenses. CITY agrees that payment shall not
licensed software or other PSI provided service. delayed even no funds have been recovered.
o Within 14 days from receipt of PSI's invoice for CONTINGENT
2) CONTINGENT FEE CALCULATIONS: When PSI's audits, licensed expenses which do not exceed the aggregate revenue
software or other PSI provided services result in the detection and recovered under this agreement or any subsequent
correction of errorslomissions that the CITY and PSI mutually agree will agreements.
produce ONGOING (rather than ONE TIME) benefits, PSI's o Within 30 days from receipt of PSI's invoice for contingent
compensation shall be based upon REALIZED BENEFITS to the CITY RECURRING recoveries.
plus revenue recovered during the first twelve consecutive quarters SECTION 6 INDEPENDENT CONTACTOR.
following correction.
100%of the REALIZED BENEFITS shall apply toward reimbursable costs It is understood and agreed that PSI,in the performance of the work and
and NON CONTINGENT expenses. For all funds recovered(REALIZED services agreed to be performed by PSI, shall act as and be an
BENEFITS) in excess of NON CONTINGENT expenses and agreed independent contractor and not an agent employee CITY;and an
n re
independent contractor, PSI shall obtain no rights to retirement benefits
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2010-215
PROGRESS/VESOLUT/ONe REVENUE RECOVERY
SOFTWARE & SERVICES AGREEMENT
or other benefits which accrue to CITY employees, and PSI hereby of enabling PSI to have access to said information to calculate
expressly waives any claim it may have to any such rights. compensation.
SECTION 7 ASSIGNABILITY. SECTION 12 GOVERNING LAW.
The parties agree that the expertise and experience of PSI are material CITY and PSI agree that the law governing this AGREEMENT shall be
considerations for this AGREEMENT.PSI shall not assign or transfer any that of the State of California.
interest in this AGREEMENT nor the performance of any of PSI's SECTION 13 COMPLIANCE WITH LAWS.
obligations hereunder,without the prior written consent of CITY, and any
attempt by PSI to so assign this AGREEMENT or any rights, duties or PSI shall comply with all applicable laws, ordinances, codes and
obligations arising hereunder shall be void and of no effect. regulations of the federal,state and local governments.
SECTION 8 INDEMNIFICATION. SECTION 14 CONFIDENTIAL INFORMATION.
PSI shall defend, indemnity and hold harmless CITY, its officers, All data, documents, discussions or other information developed or
employees and agent against any claim, loss of liability arising out of or received by or for PSI in performance of this AGREEMENT are
resulting in any way from work performed under this AGREEMENT due to confidential and not to be disclosed to any person except as authorized
willful or negligent acts (active or passive) or omissions by PSI, by CITY,or as required by law. PSI agrees to be bound by all covenants
employees or agents. The acceptance of said services and duties by contained in the attached"CERTIFICATE OF CONFIDENTIALITY".
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 SECTION 15 WAIVER.
costs, expense of litigation and reasonable attorney's fees. The costs, PSI agrees that waiver by CITY for any breach or violation of any term or
salary and expenses of the CITY Attorney and members of his office in condition of this AGREEMENT shall not be deemed to be a waiver of any
enforcing the AGREEMENT on behalf of the CITY shall be considered other term or condition contained herein or a waiver of any subsequent
"attorneys fees"for the purposes of this paragraph. breach or violation of the same or any other term or condition. The
SECTION 9 INSURANCE REQUIREMENTS. 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
PSI, at PSI's sole cost and expense, shall procure and maintain for the AGREEMENT,
duration of this AGREEMENT insurance against claims for injuries to
persons or damages to property which may arise from, or in connection SECTION 16 PSI's BOOKS AND RECORDS.
with, the performance of the services hereunder by PSI, its agents, A. PSI shall maintain any and all ledgers, books of accounts, invoices,
representatives or employees. Said policy shall have at least a combined vouchers, canceled checks, and other records or documents
single limit of$1,000,000 for bodily injury and property damage. evidencing or relating to charges for services, or expenditures, and
disbursements, charged to CITY for a minimum period of three (3)
PSI shall provide CITY with a copy of certificate of such insurance upon years,or for any longer period required by law,from the date of final
request. payment to PSI pursuant to this AGREEMENT.
SECTION 10 NONDISCRIMINATION. B. PSI shall maintain all documents and records which demonstrate
performance under this AGREEMENT for a minimum period of three
PSI shall not discriminate,in any way,against any person on the basis of (3)years, or for any longer period required by law,from the date of
age,sex,race,color,creed or national origin in connection with or related termination,completion or expiration of this AGREEMENT.
to the performance of this AGREEMENT.
SECTION 11 TERMINATION. C. Any records or documents required to be maintained pursuant to
this AGREEMENT shall be made available for inspection or audit,at
A. With the exception of provisions which survive termination of this any time during regular business hours, upon written request by the
agreement (i.e. relating to compensation earned from Realized CITY CLERK or his/her designee. Upon request, electronic copies
Benefits), CITY and PSI shall have the right to terminate this of such documents or instructions on how CITY may produce the
AGREEMENT (the non surviving provisions), without cause, by desired documents via the licensed business registration software
giving not less than thirty(30)days written notice of termination. shall be provided to CITY via email. Unless an alternative is mutually
agreed upon, any records not available via the licensed business
B. If PSI or CITY defaults on any of its obligations under this registration software shall be available for inspection at PSI's
AGREEMENT and fails to cure its default within 60 days after having address indicated for receipt of notices in the AGREEMENT,
been given notice of such default, in addition to all other remedies
provided by law, either party may terminate this AGREEMENT D. Where CITY has reason to believe that such records or documents
immediately upon written notice. may be lost or discarded due to dissolution, disbandment or
cessation of PSI's business,CITY may,by written request by any of
C. In the event of termination, PSI shall deliver to CITY copies of all the corporate officers, require that copies of all written records
reports, documents, and other work performed by PSI under this pertaining to CITY be provided to CITY within 10 days from the date
AGREEMENT, and upon receipt thereof, CITY shall pay PSI for of the written request.
services performed and reimbursable expenses incurred to the date
of termination in accordance with the terms and conditions of E. Any information contained in,or derived from,States Sales and Use
Section 4 hereto. Tax records furnished by the State Board of Equalization or State
Franchise Tax Board are and shall remain the sole property of the
D. Because the software and services performed by PSI prior to CITY.
termination may result in CITY's receipt of revenue after termination
and because this receipt of revenue entitles PSI to payment from the SECTION 17 NOTICES.
CITY even after expiration of contract or termination,CITY agrees to
provide to PSI subsequent to expiration or termination of this Unless otherwise specifically provided, all notices, including notice of
AGREEMENT such information as is necessary to enable PSI to termination provided for hereunder, shall be in writing and delivered to
calculate the compensation due to PSI as a result of this receipt of designated contact at the respective party's address indicated below in
revenue by the CITY, and PSI shall maintain the confidentiality of the execution block. All notices and other communications required or
this information as required by the AGREEMENT. In light of permitted to be given or made pursuant to this Agreement shall deemed
Revenue and Taxation Code Section 7056, PSI shall be deemed delivered one (1)day after being sent by a nationally (or internationally)
"under contract" subsequent to expiration of contract or receipt of recognized overnight courier service or three (3) days after being sent
notice of termination from the CITY for the sole and limited purpose certified U.S.mail,return receipt requested,postage prepaid.
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PROGRESSIVE SOLUTIONS`"' REVENUE RECOVERY
SOFTWARE & SERVICES AGREEMENT
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.
CITY: PSI:
CITY OF SAN BERNARDINO PROGRESSIVE SOLUTIONS,INC
City Clerk
300 North'D'Street P.O.Box 783
San Bernardino,CA 92418 Brea,CA 92822
By: By: Glenn Vodhanel
Title: City Clerk Title: President
Date: Date: V-/,�f11)
Revenue Enhancement Agreement(1.5) Page 4 of 5
2010-215
PROGRESS/VESOLUTIONS* 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 State 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 performing 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 lax 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-Bums Uniform Local Sales and Use Tax Law.
PROGRESSIVE SSOLUTIONS® //
By: ./®L', ,. V j
Title: President
Date: 6/21/2010
Revenue Enhancement Agreement(1.5) Page 5 of 5