AGREEMENT
THIS AGREEMENT (“Agreement”) dated _____________, 2024, (for purposes of identification only), is made and entered into by and between the City of Anaheim, a municipal corporation (“Anaheim”), and ProcureAbility, Inc., a F lorida corporation ( “Consultant”).
Anaheim and Consultant are individually referred to herein as “ Party” and collectively as “Parties.” This Agreement shall take effect on the Effective Date as defined in Section 38.
RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and B. Anaheim desires to engage Consultant for procurement -related services such as strategic sourcing, operational purchasing, and procurement administration; C. Consultant possesses the skill, experience, ability, background, certification s, and knowledge to provide the Services (defined below); and
D. Anaheim has solicited and received a proposal from Consultant , has evaluated the Consultant’s previous experience and expertise, and desires to retain Consultant to render the Services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and conditions herein contained, the Parties agree as follows:
1. SERVICES TO BE PROVIDED BY CONSULTANT
In compliance with all of the terms and conditions of this Agreement, Consultant shall provide to Anaheim all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the service s necessary to accomplish the Purpose (“Services”). The Purpose and the Services are described in the Scope of Services attached as Exhibit A and incorporated herein by this reference . The Anaheim Public Utilities General Manager (“General Manager”) may (in accordance with Section 4.E or Section 31) add, modify, or delete tasks from the Scope of Services.
2. TERM
Unless either Party terminates this Agreement pursuant to Section 2 5, t he term of this Agreement (“Term”) shall commence on the Effective Date as defined in Section 38 below, and shall continue for an initial term of five (5) years (“Initial Term” ). The General Manager or designee is authorized to, by executing an extension letter to be signed by both Parties, extend the Term two times (2) for two (2) years per extension (“Extension Term(s)”). If the term is extended, then each Extension Term shall become part of the Term.
3. TIME OF PERFORMANCE
A. Time is of the essence in the performance of this Agreement and the S ervices shall be performed to completion in a diligent and timely manner . The failure by Consultant to perform the S ervices in a diligent and timely manner may result in termination of this Agreement by Anaheim.
B. The time period(s) specified for performance of the Services rendered , pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, government priorities, restraint by court order or public authority and action or non- action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if Consultant shall within ten (10) days of the commencement of such delay notify the Anaheim ’s project administrator ( “Project Administrator”) in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator , such delay is justified. The Project Administrator’s determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, Consultant ’s sole remedy shall be an extension of the Agreement, pursuant to this Section, and Consultant shall not be entitled to recover damages against Anaheim.
4. COMPENSATION
A. Except for increases authorized by Section 4.E(1) (Change Orders for Extra Services), the Parties understand and agreed that full and complete payment for all Services (including, but not limited to, travel expenses , subconsultant fees, and taxes) during the Term of this Agreement (including any term extension(s)) shall not exceed Thirteen Million, Five Hundred Thirty- Three Thousand, Three Hundred Thirty- Seven Dollars and no cents ($13,533,337.00). (“Contract Amount”).
B. Anaheim shall pay Consultant for the Services rendered, pursuant to this Agreement, as set forth in the Schedule of Compensation attached hereto as Exhibit B and incorporated herein by reference (“Schedule of Compensation”). Consultant and Anaheim agree that no changes to the hourly rates set forth in Exhibit B shall be made during the Term without the prior written authorization of the General Manager or designee.
C. Anaheim shall reimburse Consultant for only those costs or expenses specifically approved by the General Manager or designee in writing and in advance.
D. If Consultant obtains the General Manager’s or designee’s prior written approval of travel costs, then Consultant is eligible for reimbursement of reasonable travel costs incurred only in connection with performance of Services and subject to the maximum l imit described herein. During the first twelve months (contract year) of this Agreement, travel costs shall not exceed $140,000 USD. Travel costs for all subsequent contract years of this Agreement shall not exceed five percent (5%) of the total fixed fee for that year. Any unused portions of travel costs may, at Anaheim’s sole discretion, be allocated to compensation for Services, or carried over to subsequent years, if any.
Travel costs eligible for reimbursement include transportation, lodging, and meals. Travel costs requested for reimbursement shall reflect the actual expense incurred by Consultant, shall be supported with documentation such as receipts or invoices , and shall align with current U.S. Federal Government rates and guidelines on travel, lodging, and meals.
E. Subject to the limitations set forth in this Section 4.E, the General Manager or designee is authorized to approve Change Orders for Extra Services and Change Orders for Cost - Neutral Extra Services. Such approval shall be in writing and obtained prior to performance of Services or Extra Services.
(1) Change Orders for Extra Services
(a) The General Manager or designee may initiate a written request for Extra Services (“Change Order Request ”). In a timely manner, Consultant shall respond to the Change Order Request.
(b) “Extra Services” means services that: (a) were not included in the Scope of Services (Exhibit A); (b) are directly relevant to the Purpose but unanticipated by Anaheim at the time of the Agreement approval; and (c) are performed pursuant to the Agreement or a Change Order Request approved as described in this Section
4.E(1).
(c) The General Manager or designee may issue a Change Order for Extra Services if budget appropriations are available and the General Manager or designee determines, in their sole discretion, that: (a) the Extra Services are necessary for the accomplishing the Purpose ; (b) are directly relevant to the Purpose but unanticipated by Anaheim at the time of the Agreement approval; (c) in the opinion of the General Manager or designee, it is in the City’s best interest to do so. (d) The General Manager is authorized to approve additional expenditures for Extra Services not to exceed fifteen percent (15%) of the Contract Amount.
(e) All Extra Services approved in writing by the General Manager or designee shall be billed at either the rates set forth in the Schedule of Compensation or at a fixed price, at Anaheim’s sole discretion. If billed at a fixed price, Consultant shall provide Anaheim with a general description of the Extra Services to be performed with a proposed price. The Extra Services will be incorporated into the Services and the Agreement upon the execution of an Extra Services letter by both Parties which contains (a) the agreed price for the Extra Services; and a description of the Extra Services . Consultant shall commence performance of the Extra Services either upon the execution of the Extra Services letter by the Parties or such other time expressly indicated therein.
(2) Change Orders for Cost-Neutral Extra Services
(a) The General Manager or designee may initiate a Change Order Request for Cost - Neutral Extra Services. In a timely manner, Consultant shall respond to the Change Order Request.
(b) “Cost-Neutral Extra Services” means any services that: (a) were not included within the Scope of Services (Exhibit A); (b) are directly relevant to the Purpose but unanticipated by Anaheim at the time of the Agreement approval; (c) do not result in additional costs to Anaheim ; and (d) are performed pursuant to the Agreement or a Change Order Request approved as described in this Section 4.E(2). (c) The General Manager or designee may issue a Change Order for Cost-Neutral Extra Services if: (a) the General Manager or designee determines, in their sole discretion, that the Cost-Neutral Extra Services are necessary for accomplishing the Purpose; (b) are directly relevant to the Purpose but unanticipated by Anaheim at the time of the Agreement approval; and (c) in the opinion of the General Manager or designee, it is in the City’s best interest to do so.
(d) The Change Order for Cost -Neutral Extra Services will be incorporated into the Services and the Agreement upon both Parties ’ execution of a Cost-Neutral Extra Services letter containing a description of the Cost -Neutral Extra Services.
Consultant shall commence performance of the Cost-Neutral Extra Services either upon both Parties’ execution of the Cost-Neutral Extra Services letter or such other time expressly indicated therein.
(3) Except for the authority granted the General Manager or designee in this Section 4.E, Consultant shall not render any Extra Services beyond the scope of this Agreement, or provide any subscriptions or licenses , unless such Extra Services , subscriptions, or licenses, are first approved by written amendment to this Agreement.
F. Consultant shall submit monthly invoices to Anaheim describing the work performed the preceding month. Consultant’s invoices shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the S ervices were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. Anaheim shall pay Consultant no later than thirty (30) days after approval of the invoice by Anaheim staff.
G. All Parties recognize that the continuation of this Agreement after the close of any fiscal year of Anaheim, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as a budget expenditure . Anaheim does not represent that any such budget item will actually be adopted by the City Council at that time . No penalty shall accrue to Anaheim in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on monies paid and due for actual items delivered and Services provided.
5. PROJECT MANAGER
A. Consultant shall designate a project manager ( “Project Manager”), who shall coordinate the Services. This Project Manager shall be available to Anaheim at all reasonable times during the Term of this Agreement. Consultant has designated Tapan Pandya to be its Project Manager. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Project Manager is a substantial inducement for Anaheim to enter into this Agreement. Therefore, the foregoing Project Man ager shall be responsible during the Term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the provision of Services hereunder. The foregoing Project Manager may not be changed by Consultant and no other personnel may be assigned to supervise the Services to be provided hereunder without the expre ss written authorization of the General Manager or designee , which authorization shall not be unreasonably withheld.
B. At Anaheim’s request, Consultant shall promptly remove from the Services any personnel or subconsultant (if any) who fail or refuse to perform the Services in a manner acceptable to Anaheim, or who Anaheim determines , in Anaheim’s sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, or a threat to the safety of persons or property. Consultant warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
A. This Agreement will be administered by the Anaheim Public Utilities Department. The following employees of the Anaheim Public Utilities Department shall be authorized to take the following actions pursuant to this Agreement:
(1) The General Manager is authorized to take any action on behalf of Anaheim as set forth herein in this Agreement, including, but not limited to, extension of the Term pursuant to Section 2, and termination of the Agreement on behalf of the Anaheim in accordance with Section 25. Except for termination of the Agreement, the General Manager may authorize a designee to take actions on behalf of the General Manager. (2) Anaheim shall identify the Project Administrator by written notice to Consultant.
Anaheim may change the Project Administrator at any time and will provide Consultant written notice as soon as it is practical.
(3) The Project Administrator shall have the power to act on behalf of Anaheim for review and approval of all S ervices performed by Consultant under this Agreement . The Project Administrator is not authorized to terminate Services under this Agreement.
Furthermore, unless selected as the General Manager ’s designee, the Project Administrator shall not be authorized to approve Change Orders for Extra Services (cost-neutral or otherwise), or changes in billing rates.
7. STANDARD OF CARE
A. Consultant shall perform all Services under this Agreement in a skil lful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement ; all applicable federal, state and local laws; and the professional standard of care.
B. Consultant represents and warrants to Anaheim that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Anaheim business license during the Term.
8. FAMILIARITY WITH WORK
By executing this Agreement, Consultant represents and warrants that Consultant: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the S ervices should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the S ervices under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Consultant shall immediately inform Anaheim of such fact and shall not proceed except at Consultant ’s risk until written instructions are received from Anaheim.
9. INDEPENDENT CONTRACTOR
A. Neither Anaheim nor any of its employees shall have any control over the manner, mode or means by which Consultant , its agents or employees, perform the Services , except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision or control of Consultant ’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all Services as an independent contractor of Anaheim and shall remain at all times , as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deem ed to be a partner of Consultant in its business or otherwise or a joint venture or a member of any joint enterprise with Consultant.
B. In consideration for the compensation paid to Consultant by Anaheim, Consultant agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health or any other benefits, and Consultant agrees that it shall not sue or file a claim, petition or application therefor against Anaheim or any of its officers, employees, agents, representatives or sureties.
10. INSURANCE
A. Without limiting Anaheim’s right to indemnification, it is agreed that Consultant shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
(1) Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
(2) Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self -insured retention is disclosed to Anaheim , in writing, at the inception of this Agreement.
(3) Commercial Automobile Liability Coverage including —as applicable—owned, non- owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
(4) Professional Liability Insurance, inclusive of Cyber Liability Insurance where required in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self -insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
B. Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim’s Risk Manager prior to the inception of the final Agreement.
C. Consultant agrees that this insurance shall not be voluntarily cancelled or materially limited in scope or coverage by Consultant until after thirty (30) days’ prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805.
This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
D. Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation shall contain the following clauses or shall otherwise provide for the following conditions:
(1) “It is agreed that any insurance maintained by Consultant pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.”
(2) “The City of Anaheim, its officers, agents, employees, representatives and Anaheim - designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.” E. Prior to commencing any work under this Agreement, Consultant shall deliver to Anaheim insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Consultant shall provide Anaheim (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Anaheim evidencing that the coverage, terms, and conditions set forth in the above - referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that a claim or other legal action is filed against Anaheim, and if Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Consultant shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
F. In addition to other remedies Anaheim may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
(1) Order Consultant to stop work under this Agreement and/or withhold any payment(s) that become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof;
(2) Terminate this Agreement.
G. Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Consultant ’s failure to maintain insurance or secure appropriate endorsements.
H. Nothing herein contained shall be construed in any way as limiting the extent that Consultant may be held responsible for payments of damages to persons or property resulting from Consultant’s (or Consultant’s agent or sub-agent, if any) performance of the work covered under this Agreement.
I. In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure (i) that the acts or omissions of such persons or firms are covered under the above -referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Consultant under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Consultant shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.
J. Anaheim’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in Anaheim’s best interest.
11. INDEMNIFICATION
A. As respects acts, errors or omissions in the performance of professional services, Consultant agrees to indemnify and hold harmless Anaheim, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Consultant or any sub- agent in the performance of professional services under this Agreement.
B. As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Consultant agrees to indemnify, defend (at Anaheim ’s option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with Consultant’s (or Consultant’s Agent or Sub-Agent, if any) acts, errors, omissions, or work, relative to this Agreement, except for those Claims that arise out of the sole negligence or willful misconduct of Anaheim. Notwithstanding the foregoing, Consultant's liability for indemnification under this Section B shall be limited to Claims directly attributable to the Consultant’s negligence or willful misconduct, and shall not include incidental or consequential damages.
C. The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether Anaheim, Consultant, or any other person or entity maintains or fails to maintain insurance coverage or a self -insurance program, for any such Claim(s); and (ii) shall survive the termination of this Agreement.
12. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify Anaheim , its agents, officers, representatives and employees against any and all liability directly arising out of infringement of any United States ’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to Anaheim pursuant to this Agreement.
13. LIMITATION OF LIABILITY
A. Neither party shall be liable for any incidental, indirect, special, punitive, exemplary, or consequential damages of any kind, including but not limited to, loss of revenues or profits, loss of business or loss of data, commitments to subcontractors, rental or lease agreements, and personal services contracts arising out of this contract, regardless of whether the party was advised, had other reason to know, or in fact knew of the possibility thereof.
B. Notwithstanding any other provision of this agreement except with regard to indemnities set forth in Section 11.A., the consultant’s total liability to Anaheim for any and all claims, losses, damages, defense costs, or liabilities arising out of or related to this agreement, whether arising in contract, tort, or otherwise, shall be limited to $1,000,000 or the amount of the consultant's insurance coverage, whichever is greater.
14. PERFORMANCE OF SERVICES
Consultant is responsible for keeping the Projec t Administrator and/or the Project Administrator’s designees informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The P arties recognize that a substantial inducement to Anaheim for entering into this Agreement is the professional reputation, experience and competence of Consultant. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of Anaheim .
Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to Anaheim. If Anaheim approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of Consultant.
16. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of Anaheim . Consultant shall be fully responsible to Anaheim for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and subcontractor nor shall it create any obligation on the part of Anaheim to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Agreement.
17. USE AND OWNERSHIP OF DOCUMENTS AND DATA
A. Anaheim shall furnish to Consultant such documents and materials as may be relevant and pertinent to the provision of Services hereunder as Anaheim may possess or acquire.
B. All documents and materials furnished by Anaheim to Consultant, pursuant to Section
17.A, shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of Anaheim, and Anaheim shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant’s sole cost and expense, provide such documents and material to Anaheim upon prior written request.
C. Documents and material prepared by Consultant , pursuant to this Agreement , are not intended or represented to be suitable for reuse by Anaheim or others on any other project.
Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at Anaheim’s sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant’s deliverables under this Agreement by Anaheim or persons other than Consultant, is waived against Consultant and Anaheim assumes full responsibility for such changes unless Anaheim has given Consultant prior notice and has received from Consultant written consent for such changes.
D. Consultant shall retain all right, title, and interest in and to all pre -existing (i.e., existing prior to the effective date of this Agreement) methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how (collectively “Consultant Knowledge”) used by the Consultant in the production of the deliverables or the performance of the Services.
18. CONFIDENTIALITY
A. “Confidential Information” means, with respect to a Party hereto, all information or material which either (1) is marked or identified as “ Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnishe d in connection with this Agreement by the Disclosing Party or its Representatives ( “Representative” is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party (as defined below) or to its Representatives, and specifically includes but is not limited to Anaheim ’s individually identifiable customer information, and Anaheim’s customer usage data and financial data.
B. Consultant and Anaheim shall each hold the other ’s Confidential Information in confidence. Neither Party shall make the other’s Confidential Information available in any form to any third party or use the other ’s Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party ( “Receiving Party”) shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to the Receiving Party, or to its Representatives or to others. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or discl osed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party w ithout use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
C. By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 18 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement it shall be treated as though it was exchanged under this Agreement as of the date of such exchange.
D. The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party, and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authoriz ed in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibit ion on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
E. If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy, or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party ’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
F. In the event the Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt retur n of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
G. Within two (2) weeks of the termination of this Agreement, Consultant will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcri ptions or any other form of material, without retaining any copy or duplicate thereof; provided that Consultant may retain Confidential Information contained on backup media created in the ordinary course of business provided further that there is no effort to access such Confident ial Information and Consultant’s confidential obligations with respect to such information shall continue so long as such information is retained. Consultant shall certify in writing the destruction of the Confidential Information. Anaheim may perform an audit of Consultant’s records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
H. Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
19. FISCAL RECORDS AND AUDIT
A. Consultant shall keep records and invoices in connection with the Services. Consultant shall use recognized accounting methods in preparing such reports and invoices. Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm who shall have the right to audit Consultant’s accounting procedures and internal controls of Consultant’s financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. If Consultant fails to provide supporting documentation satisfactory to Anaheim for costs charged, then Consultant agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Consultant agrees to fully cooperate with any such audit(s).
B. This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Consultant agrees to retain all necessary records/documentation for the entire length of this audit period.
C. Consultant will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments which must be made as a result of any such audit or inspection of Consultant ’s invoices and/or records shall be made within thirty (30) days from presentation of Anaheim ’s findings to Consultant . If Consultant fails to make such payment, Consultant agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date Consultant reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Consultant to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim’s audit shall be reimbursed to Anaheim by Consultant.
20. WITHHOLDINGS
Anaheim may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue the Services as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums and his decision shall be final. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to Anaheim greater than what would have resulted if there were not errors or om issions in the Services performed by Consultant, the additional cost and expense shall be borne by Consultant . Nothing in this paragraph is intended to limit Anaheim ’s rights under the law or any other sections of this Agreement.
22. ANAHEIM’S RIGHT TO EMPLOY OTHER CONSULTANTS
The Parties acknowledge and agree that this Agreement and the provision of services hereunder are nonexclusive, and that either Party may enter into similar agreements with other entities for the provision of similar services.
23. CONFLICTS OF INTEREST
Consultant agrees to comply with any provisions of the California Political Reform Act of 1974 (“Act”) that might apply to its provision of Services pursuant to this Agreement. Failure to comply with the Act constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Consultant shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Consultant’s violation of this Section.
24. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either Anaheim or Consultant to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
To Consultant: ProcureAbility, Inc.
221 N. Hogan St., #389,
Jacksonville, FL, 32202 US
Each Party may change its address or FAX for notice by providing written notice to the other in accordance with this Section.
25. ENFORCEMENT OF AGREEMENT
A. Events of Default.
(1) For purposes of this Section 25, the word “Default” shall mean the failure of a party to perform any of the Party’s duties or obligations , or the Party’s breach of any of the terms and conditions set forth in this Agreement.
(2) Consultant shall be deemed to be in Default upon Consultant ’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismiss ed within thirty (30) days of such filing) ; or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Consultant’s assets or of Consultant’s interests hereunder. (3) Anaheim shall not be deemed to be in Default in the performance of any obligation required to be performed by Anaheim hereunder unless and until Anaheim has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Consultant specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Anaheim’s obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in Default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
Notwithstanding the foregoing, this section shall not apply to Anaheim’s obligation to make payments when due.
B. Immediate Termination for Consultant ’s Default. In the event of any Default by Consultant, Anaheim may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from Anaheim . In such event, Consultant shall have no further rights hereunder, and Anaheim shall have all other rights and remedies as provided by law.
C. Termination Without Cause. Anaheim may terminate this Agreement at any time without the necessity of cause or Default by giving ninety (90) days’ notice in writing to Consultant.
In such event, the Parties shall have no further rights hereunder, except that Consultant shall be paid for all services adequately rendered prior to such termination. Consultant may not terminate this Agreement except for cause.
D. Consultant shall not be relieved of liability to Anaheim for damages sustained by Anaheim by virtue of any breach of Agreement by Consultant , and Anaheim may withhold any payments to Consultant for the purpose of set -off until such time as the exact amount of damages due Anaheim from Consultant is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement. The waiver by either party of any breach to this Agreement shall not constitute a waiver as to any succeeding breach.
E. The General Manager is authorized to terminate this Agreement on behalf of Anaheim in accordance with the provisions of this Section 25.
26. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable local , county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator.
27. WAIVER
A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any concurrent or subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement and the E xhibits hereto cont ain the entire agreement of Anaheim and Consultant with respect to the matters covered hereby, and no agreement, statement or promise made by either Anaheim or Consultant which is not contained herein, shall be valid or binding. No prior agreement, understanding or repres entation pertaining to any matter s covered hereby shall be effective for any purpose.
29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits, or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Consultant and Anaheim, and approved as to form by the Anaheim City Attorney’s Office.
32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
33. REMEDIES CUMULATIVE
The remedies given to Anaheim and Consultant herein shall be cumulative and are given without impairing any other rights given Anaheim or Consultant by statute or law now existing or hereafter enacted and the exercise of any one (1) remedy by Anaheim or Consultant shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California.
36. DISCRIMINATION
Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of S ervices or hiring of subcontractor s or employees. To the extent this Agreement provides that Consultant offer accommodations or services to the public, such accommodations or servic es shall be offered by Consultant to the public on fair and reasonable terms.
37. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. Consultant shall, at Anaheim’s request, deliver a certified copy of it s governing board’s resolution or certificate authorizing or evidencing such execution.
38. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by Anaheim (“Effective Date”).
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF Anaheim,
DATE: ______________________ a municipal corporation
By: ________________________________
Dukku Lee,
Public Utilities General Manager
ATTEST
DATE: _______________________
By: ________________________________
Theresa Bass, City Clerk
ProcureAbility, Inc., a Florida corporation
DATE: ____________________________ By: __________________________________ Darshan Deshmukh
Title: ________________________________
President
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY’S OFFICE
By: ______________________________
153028
EXHIBIT A
SERVICES
[ATTACHED BEHIND THIS PAGE]
EXHIBIT A - Page 1 of 6
EXHIBIT A
SCOPE OF SERVICES
I. Purpose
This Agreement’s purpose (“Purpose”) is to improve the City of Anaheim’s Public Utilities Department’s ( APU) procurement processes through strategic sourcing, operational purchasing, and procurement administration, in pursuit of three goals:
(1) Securing key utility materials;
(2) Addressing price volatility and market variables; and (3) Expanding the procurement model to include other public utilities to achieve economies of scale.
II. Scope Overview
In furtherance of the Purpose stated above, Consultant will provide procurement -related services (“Services”), including but not limited to the services described in this Exhibit A.
III. Strategic Sourcing and Support
A. When applicable, consolidate multi-agency procurement requests from utilities or similar agencies participating in a joint procurement (“Participant” or “Participants”) into a larger purchasing request (i.e., joint -procurement initiative) to leverage greater buying power, while abiding by approved agency manufacturers , and meeting individual Participants’ competitive bidding requirements and guidelines.
1. Consultant shall manage Participant’s procurement activities as part of a joint procurement.
2. APU may refer utilities interested in becoming a Participant to contact the Consultant directly. The Consultant shall provide participation details to all potential Participants, including preliminary agreement terms and conditions.
3. The Consultant shall enter into individual agreements with any Participants to establish an effective multi-agency, joint-procurement initiative.
4. In establishing, offering, and maintaining a joint-procurement initiative for APU and any Participants , Consultant shall, whenever possible, avoid purchasing obligations such as minimum order quantities.
5. In executing any joint-procurement initiative, the Consultant shall assume the burden of evaluating Participants’ purchasing requests, including any applicable specifications or technical requirements . Consultant shall consolidate applicable Participant purchasing requests into a single bid for economies of scale. The Consultant shall not rely on Participants to bear the brunt of coordinating with other Participants or analyzing other Participants’ purchasing requests or technical s pecifications. The EXHIBIT A - Page 2 of 6
Consultant is responsible for expending the necessary time and resources to consolidate Participants’ purchasing requests into a single, multi-agency joint procurement request.
6. APU may provide the Consultant with overall direction on which utility materials to consider for multi-agency joint procurements, which will likely focus on high-demand infrastructure components such as electrical distribution transformers, distribution switches, and cable. Consultant shall then organize a joint procurement purchase with one or more Participants to increase the likelihood of securing such materials, lower per unit material costs, and reduced lead times.
B. Make recommendations to APU on contractual terms and conditions and obtain APU’s explicit approval prior to negotiating on APU’s behalf.
C. Negotiate with bidders on contractual terms and conditions, including warranty polic ies, price escalation clauses, incentives or penalties to encourage timely deliveries.
D. Identify and recommend new suppliers who meet APU -approved specifications and can provide materials, especially when such materials are in short supply regionally, nationally, or globally.
E. In making a recommendation to APU on considering an alternative product or model, the Consultant shall evaluate any applicable material specification requirements that APU may have with that specific equipment or material.
F. Formulate and refin e category management strategies to enhance the efficiency of procurement processes. For example, identify and recommend opportunities where APU can revise material specifications and requirements to conform to more readily available products or commonly accepted industry standards.
IV. Operational Purchasing
A. Issue Requests for Bid (RFB) for utility equipment and materials from qualified manufacturers or distributors on behalf of APU.
1. The City of Anaheim currently utilizes PlanetBids, an online procurement and bidding portal, to post RFB documents and receive bids. APU prefers using this platform for consistency and alignment with the City, but may consider linking with an alternative bidding portal if the Consultant has experience with such an alternative and recommends its use to enhance procurement outcomes. (e.g., the Consultant’s preferred solution can reach more potential bidders or reduce administrative costs) B. Answer bidder questions in collaboration with APU staff.
1. APU’s RFBs will invite registered suppliers of approved manufacturers to bid. The bidding process includes an opportunity for bidders to submit questions during an allotted time frame. Once the deadline for questions passes, the Consultant shall collect and consolidate all questions into a single document, attempt to answer any general questions they have information about, and provide all consolidated questions and suggested answers to APU staff for feedback and review. Upon APU’s approval , the Consultant shall post the responses to these questions on the bid portal so that all prospective bidders have access to the same information.
EXHIBIT A - Page 3 of 6
2. Consultant shall respond to any actual or prospective bidders, when needed or required, to supply general information regarding the bid process, including how to register for bidding, information contained in the RFB, and/or other relevant information being requested. The Consultant will coordinate with APU staff to answer any questions outside the Consultant’s purview or area of expertise.
3. Consultant shall uphold the integrity of the competitive bidding process so that all bidders have a fair and equal opportunity to be awarded.
4. If a bid award is protested (where a bidder contests one or more aspects of how the competitive bidding process was handled), then the Consultant shall coordinate closely with APU staff to follow and implement City of Anaheim requirements and policies for bid protests.
C. Evaluate bids or responses to determine whether they meet RFB specifications and requirements, and recommend an award based on criteria described in the RFB.
1. Once the deadline to submit a bid elapses, the Consultant shall take the initial step of collecting all information submitted. The Consultant shall determine whether any bids were unresponsive. Unresponsiveness is defined as submitting a bid past the deadline, omitting key relevant information as required in the RFB, or not complying with requirements described in the RFB.
2. Before the Consultant makes a recommendation to APU on awarding any bid(s), the Consultant shall evaluate bids and other submitted information to determine whether the bid appears reasonable based upon available historical or current market prices of the item or similar items, and whether the bid and other accompanying information meets APU’s specifications and other requirements as described in the RFB.
3. Once the Consultant confirms that the bids appear reasonable and meet applicable RFB requirements (including product specifications), then the Consultant will provide APU with a written summary evaluation and recommendation of the bid award. a. The summary evaluation shall indicate which bidder or bidders are recommended for award for specific line items and shall identify pertinent information that Consultant used to derive that recommendation, including unit pricing, lead times, maximum defective rate, relative supplier risk, and other conditions or requirements specified in the RFB.
b. In conjunction with the summary evaluation and recommendation, the Consultant shall provide supplemental information including, but not limited to:
i. Which firms submitted a bid;
ii. The date and time each bid was submitted;
iii. Bid information including price, quantities, lead times (if provided), and associated terms, conditions, warranties; and
iv. Any potential discrepancies or issues during the bid process , including bids deemed unresponsive due to late submittal, submissions not in compliance with RFB requirements, or information submitted that require APU staff review or assistance.
EXHIBIT A - Page 4 of 6
D. Implement the bid award as directed by APU.
1. The Consultant shall have an established method of documenting APU’s (or the City Council’s) confirmation of approval.
2. After a bid award is approved, t he Consultant shall contact the selected bidder and provide the bidder with the approved purchase order. If the Consultant has a more efficient approach to this process that allows APU the ability to review, approve, and ultimately issue the purchase order (i.e., through accessing the Consultant’s procurement platform), then APU is amenable to such an alternative approach.
3. The Consultant shall also assist in providing necessary forms or documents to bidders, such as APU-approved purchase orders, contracts, or a registration form to do business with the City of Anaheim. The Consultant will coordinate closely with APU staff to ensure all information or forms required from any potential selected bidders is received and complete.
V. Procurement Administration
A. For proper recordkeeping, document and report all procurement processes and contracts .
Documentation should include each procurement’s approval date or contract’s execution date, individual line item bids awarded, number of bids or responses received, product and product specifications involved, product quantities, and all other pertinent information, including terms and conditions and other contractual arrangements included as part of the transaction.
1. Consultant shall utilize APU’s procurement management and bidding platform to facilitate all documentation and reporting requirements noted above, or, if approved by APU, will use an alternative but effective means to record such transaction or agreement details for proper recordkeeping.
2. The Consultant shall retain records pertaining to all such purchase transactions and supplemental details for a period of at least five (5) years in a secure manner, protecting any confidential or proprietary information.
3. The Consultant acknowledges that annual audits may be conducted by the City Auditor’s Office to ensure that procurement processes and outcomes are compliant with City of Anaheim policies, purchasing procedures, and related requirements.
B. Provide key performance indicators in the form of monthly, quarterly, and annual reports and any on- demand reports as requested, related to such purchasing and agreement transactions as previously described. Consultant shall make available an automated reporting capability where APU staff may run on-demand reports as needed, showing past purchasing transactions, number of bids garnered for each transaction, the value of each purchase order awarded, and other pertinent informa tion. If the Consultant cannot make such an automated tool available, then the Consultant shall provide such reports, through other effective means, within three (3) business days of receiving APU’s request.
C. Monitor supplier performance, contact suppliers for any outstanding materials not delivered on time, and note such supplier performance in reports provided to APU at a set frequency (e.g., weekly, monthly, quarterly) or on-demand. Consultant, through access to EXHIBIT A - Page 5 of 6
APU’s inventory system or other effective means, shall provide monthly reports on which suppliers are late in delivering materials, indicating which materials are outstanding, and the elapsed time between a supplier’s estimated delivery date and the current date of the report.
D. Verify that suppliers are complying with stated policies in purchase orders or agreements, such as quarterly pricing adjustments or delivery schedules, and communicating any supplier deficiencies to APU along with recommended actions. Consultant shall collaborate effectively with APU in managing procurement administration tasks such as contacting suppliers, monitoring the performance of suppliers and corresponding purchase orders, and other related activities upon APU’s request.
VI. Consultant Resource Model
A. The Consultant Resource Model for this Scope of Services is comprised of a fully dedicated team of five (5) resources (i.e., Consultant’s employees) who can provide the full spectrum of Strategic Sourcing, Procurement Operations, and Procurement Administration.
Consultant will maintain at all given times the five ( 5) dedicated resources as described unless changed through a Change Order.
Consultant
Resource Model
Number of
Resources
Responsibilities
Project Manager 1 • Program Management
• Performance Management
• Strategic Guidance
• Strategy Formation
• Stakeholder Engagement
• Communication Management
Strategic Sourcing
Consultant
2 • Strategic Sourcing
• New Supplier Discovery
• Conduct Negotiations
• Engage Suppliers
• Stakeholder Engagement
• Develop Reporting Methodology
• Design Operational Dashboards
• Bid Analytics
• Compliance Measures
Operational
Purchasing Analyst
1 • RFP Execution
• Supplier Management
• Bid Data Analysis
• Bid Summary and Documentation
Procurement
Administration
Analyst
1 • Documentation
• Bid Analytics
• Data Visualizations
• On-Demand Reporting
• Auditability
EXHIBIT A - Page 6 of 6
B. The Consultant’s Center of Excellence will serve as a resource to the Delivery team for effective and efficient execution of sourcing services. The Center of Excellence may provide Consultant and APU with access to SMEs, market intelligence, standard tools & templates, and digital capabilities to assist in the delivery of the Scope of Services.
VII. Project Governance
A. The Governance Structure for this Scope of Services ensures resources are aligned to their respective roles and responsibilities to drive successful implementation of the program .
APU and Consultant will aim to resolve any issues at the lowest organizational level.
EXHIBIT B
SCHEDULE OF COMPENSATION
[ATTACHED BEHIND THIS PAGE]
EXHIBIT B
SCHEDULE OF COMPENSATION
Initial Term
Year 1 Year 2 Year 3 Year 4 Year 5
Fixed Fee $1,549,800 $1,433,220 $1,347,890 $1,347,890 $1,347,890 Travel
Reimbursement $140,000 $71,661 $67,395 $67,395 $ 67,395 TOTAL $1,689,800 $1,504,881 $1,415,285 $1,415,285 $ 1,415,285
Optional Extension 1 Optional Extension 2 GRAND
TOTAL
(with all
extensions) Year 6 Year 7 Year 8 Year 9
Fixed Fee $1,415,285 $1,415,285 $1,486,049 $1,486,049
$12,829,359
Travel
Reimbursement $70,764 $70,764 $74,302 $74,302 $703,979 TOTAL $1,486,049 $1,486,049 $1,560,352 $1,560,352
$13,533,337
A. If the Initial Term is extended, then beginning in Year 6, the Consultant may increase the fees one time, by up to five percent (5%).
B. If the term is extended at the end of Year 7, then beginning in Year 8, the Consultant may increase the fees one time, by five percent (5%).
C. Unless otherwise authorized by Section 4.E of the Agreement, payment to Consultant shall not exceed the Contract Amount of $13,533,337.
D. Travel expenses are reimbursable only if consistent with Section 4.D of the Agreement. As stated in Section 4.D, any unused portions of travel costs may, at Anaheim’s sole discretion, be allocated to compensation for Services, or carried over to subsequent years, if any.
E. In addition to meeting the requirements of Section 4.F of the Agreement, Consultant shall submit monthly invoices to Anaheim in accordance with the Monthly Fixed Fee per the table below. Anaheim shall pay Consultant no later than thirty (30) days after approval of the invoice by Anaheim staff.
Year Monthly Fixed Fee
1 $129,150
2 $119,435
3 $112,324
4 $112,324
5 $112,324
6 $117,940
7 $117,940
8 $123,837
9 $123,837