HomeMy WebLinkAbout19D - RFP - DISCOUNT PHARMACY CARDREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
APRIL 4, 2011
TITLE:
REQUEST FOR PROPOSALS FOR
PROVIDING A DISCOUNT PHARMACY
CARD PROGRAM
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CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on Vt Reading
? Ordinance on 2"d Reading
? Implementing Resolution
? Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the Parks, Recreation and Community Services Agency to issue a Request for
Proposals (RFP) to qualified companies to provide a discount pharmacy card program for the City
of Santa Ana.
DISCUSSION
The growing cost of medical care is one of our nation's most pressing social, medical and
economic challenges. Millions of Americans struggle to afford the medications they need,
frequently forgoing them due to price. While the focus is often on senior citizens, the high cost of
prescription drugs is a daunting challenge for Americans of all ages, particularly those who are
uninsured. A half-million Orange County residents lack health insurance, according to a U.S.
Census Bureau survey released in September 2009. The US Census Bureau estimates that 32.7%
of Santa Ana's 357,000 residents are uninsured. This Request for Proposals (RFP) will solicit
proposals from qualified vendors to develop and maintain a comprehensive pharmacy network to
consistently deliver prescription drug services to individuals and families that participate in the
discount pharmacy card program.
The program would be available to all who live and work in Santa Ana. The objectives of program
are to 1) save community members money on medications, and 2) provide an additional revenue
source for the City to subsidize healthy recreational programming. The Request for Proposals
(Exhibit 1) will solicit proposals from qualified firms capable of establishing the required pharmacy
network. The recommended vendor agreement will be submitted for City Council approval after
the review of proposals has been completed sometime this summer.
The Parks, Recreation and Community Services Agency presented the Discount Pharmacy Card
program to the Board of Recreation and Parks on March 23, 2011, who approved the program.
Also, the Parks, Recreation, Education and Youth (PREY) Council Committee will review it on
March 31, 2011.
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Discount Pharmacy Card RFP
April 4, 2011
Page 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
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Gerardo Mouet
Executive Director
Parks, Rec. and Com. Svcs. Agency
Exhibit 1: RFP Scope of Work
1901-2
REQUEST FOR PROPOSALS
RFP 11-011
FOR PROVIDING A DISCOUNT PHARMACY CARD PROGRAM
FOR THE CITY OF SANTA ANA
4
KEY RFP DATES:
Issue Date:
Pre-proposal Conference:
Proposal Due Date:
April 12, 2011
April 26, 2011
May 17, 2011
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REQUEST FOR PROPOSAL
Notice is hereby given that sealed proposals will be received FOR PROVIDING A DISCOUNT
PHARMACY CARD PROGRAM FOR THE CITY OF SANTA ANA per the attached
specifications, at the Parks, Recreation and Community Services Agency, Budget and Accounting
Section, 26 Civic Center Plaza, Santa Ana, California, 92701 until 4:30 P.M., May 17, 2011.
MAILED proposals should be addressed as follows:
Parks, Recreation and Community Services Agency
Budget and Accounting Section M-75
P.O. Box 1988
Santa Ana, CA 92702
Attn: Silvia Cuevas
or delivery by hand or courier to:
Parks, Recreation and Community Services Agency
Budget and Accounting Section
26 Civic Center Plaza
Santa Ana, CA 92702
Attn: Silvia Cuevas
Note: PRCSA is located on the second floor of the Santa Ana Main Library.
It is the responsibility of the proposer to see that any proposal submitted shall have sufficient time to be
received by the Budget and Accounting Section prior to proposal due date and time. Late proposals
will be returned to the vendor unopened. The receiving time in the Budget and Accounting Section
will be the governing time for acceptability of proposals. Faxed or electronic proposals will not be
accepted.
If further information is needed regarding proposal submission, contact Silvia Cuevas, via email at
scuevas@santa-ana.org, or phone at (714) 647-5254.
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L GENERAL
A. RFP PROCESS AND GENERAL TERMS
1. PROPOSAL SUBMISSIONS
Proposals must be submitted to the Budget and Accounting Section in a sealed envelope
showing on the outside, the name of the bidder, RFP NO. 11-011 and the proposal due date and
time. All proposals must be signed by an authorized representative of the vendor. Please
submit one original and eight photo copies.
2. PROPOSAL WITHDRAWAL
Proposals may be withdrawn by written request received before the hour set for the opening.
After that time, the vendor may not withdraw proposals for a period of ninety (90) days from
the date of the opening.
3. LATE PROPOSALS
It is the responsibility of the vendor to see that any proposal submitted shall have sufficient time
to be received by the Budget and Accounting Section prior to the proposal due date and time.
Santa Ana Parks, Recreation and Community Services Agency shall not be responsible for
proposals lost or delayed in the mail. Late proposals will be returned to the vendor
unopened.
5. AGREEMENT
Successful vendor(s) will be required to enter into an Agreement with the City of Santa Ana.
The agreement term will be for a two-year period, with the option of extending the Agreement
for two additional two-year terms. The Agreement shall be in a form similar to that set forth as
Attachment C.
6. SELL OR ASSIGN
The successful vendor shall not have the right to sell, assign, or transfer any obligations
resulting from this proposal without the specific written consent of the City.
7. RECEIVING TIME
The receiving time in the Budget and Accounting Section will be the governing time for
acceptability of proposals. Faxed or electronic copies will not be accepted.
8. COMPLIANCE WITH LAWS
All proposals shall comply with current federal, state, and other laws relative thereto. Vendor
further agrees that the services proposed comply with all applicable Federal, State, and local
occupational safety and health laws, standards for regulations, and that vendor will indemnify
and hold the City harmless for any failure to so conform.
9. REFERENCE TO SUCCESSFUL VENDOR
The terms vendor, supplier, proposer, or contractor may be used interchangeably in these
specifications and shall refer exclusively to the vendor(s) with whom the City enters into
contract as a result of this request for proposal.
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10. INQUIRIES
Refer inquiries in writing via email to Silvia Cuevas, scuevasAsanta-ana.org. Questions will
be accepted up until the pre-proposal conference. Responses will be provided by to those in
attendance at the pre-proposal conference electronically via e-mail.
11. RIGHTS RESERVED
The right is reserved by the City of Santa Ana to reject any or all proposals or to waive any
informality or technical defect in a proposal. The City reserves the right to contract with any,
all, or none of the vendors who submit proposals.
12. E-MAIL COMMUNICATIONS
To facilitate the RFP process, vendors are required to monitor and respond to e-mail requests
on a daily basis.
13. PRE-PROPOSAL CONFERENCE
A pre-proposal conference will be held at 10:00 a.m. on April 26, 2011 at the Central Library
Meeting Room A, Santa Ana, CA. Please RSVP to Silvia Cuevas, (714) 647-5254, by April
22. All proposers are strongly encouraged to attend. A virtual meeting option will also be
available.
14. DISCLOSURE
Any information, other than cost and price, which a vendor does not wish to have disclosed,
other than for the purpose of evaluation, should have each applicable sheet or part marked
"Proprietary and Confidential" - this data shall not be disclosed or duplicated, used or disclosed
in whole or in part for any purpose other than to evaluate the response.
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II. SCOPE
A. INTRODUCTION
The growing cost of medical care is one of our nation's most pressing social, medical and economic
challenges. Millions of Americans struggle to afford the medications they need, frequently forgoing
them due to price. While the focus is often on senior citizens, the high cost of prescription drugs is a
daunting challenge for Americans of all ages, particularly those who are uninsured. The increasing cost
of brand-name and generic prescription drugs impacts individuals and families that do not have access
to health insurance or are required to pay large co-payments through their health insurance plans.
A half-million Orange County residents lack health insurance, according to a new U.S. Census Bureau
survey released in September 2009. According to the US Census Bureau, 2006-2008 American
Community Survey, 82.8% of Santa Ana residents speak a language other than English at home and of
those, 77.3% are Spanish speaking. The median income of households in Santa Ana was $55,927. The
Median age was 28.5 yrs and 79% of the population is Hispanic or Latino race. The US Census Bureau
estimates that 32.7% of Santa Ana's 320,837 residents are uninsured. In light of these statistics and in
response to the rising cost of health care and prescription medications, the City of Santa Ana is
committed to developing and implementing a comprehensive Discount Pharmacy Card Program for
people who live and work in Santa Ana.
Objectives of program:
1. Save people money on medications
2. Provide an additional revenue source for the City to subsidize healthy recreational
programming
Qualified vendors interested in sponsoring a program throughout the City of Santa Ana are invited to
submit proposals that meet the following program specifications. Your proposal should address
each of the items listed in Section II. B-L and will be evaluated against the criteria listed in
Section III.
B. GENERAL SERVICE REQUIREMENTS
The general program and service requirements to be provided by the selected vendor (also referred to
as "contractor") shall include the following:
1. Contractor will develop and maintain a comprehensive pharmacy network to consistently
deliver prescription drug services to individuals and families that participate in the discount
drug program. Contractor shall provide the City with thirty (30) days prior written notice
before making any additions, deletions and/or revisions to the pharmacy network.
2. Contractor's pharmacy network will dispense prescription drugs in quantities, as prescribed and
ordered, of up to a ninety (90) day supply, through a retail pharmacy location or mail order
service.
3. Successful contractor must secure maximized pharmaceutical manufacturer's rebates and
discounts on brand name and generic drugs, including mail order service, and pass a
predetermined, set percentage of the financial savings to participants and City utilizing its
established pharmacy network that achieves the greatest possible set of discounts.
4. On a predetermined regular basis, contractor must provide detailed reports on the following:
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a. Average percent (%) discount off AWP on brand name and generic pharmaceuticals
dispensed;
b. Total amount of savings provided by these discounts;
c. Savings passed on to participants, City and Contractor, per agreement
d. Customer satisfaction. All complaints shall be documented and reported to the City,
including resolution.
e. Total number of participants using the program
f. All discounts, rebates and other pass-through reimbursements that are secured for brand,
generic, mail order and extended retail supply medications must be recorded, tracked,
audited and reported to the City of Santa Ana by category to determine whether
measurable savings have reached projected levels.
2. Contractor shall not charge any start-up, administrative or other fees to the City.
3. Contractor shall not charge any enrollment, participation or other fees to participants.
4. On a monthly basis, due the 15th of the month for the previous month, contractor shall submit
payments to the City in the amount consistent with the formula provided in the agreement
between Contractor and City.
There shall be no additional costs to the City or the participant other than the price paid by
participants for the discounted medications.
C. COVERED PRESCRIPTION DRUGS
1. Submit complete formulary information containing fully and partially covered medications that
will be offered through the Discount Pharmacy Card Program including brand name and related
generic name(s) (if applicable); retail price; discount percent/amount; and program participants'
discounted purchase price, including dispensing fee.
2. Please provide a list of, historically, the 50 most commonly prescribed covered brand and/or
generic names and their respective retail price, applicable percentage of program discount,
dispensing fee and proposed final discount price.
3. The contractor shall establish a reporting process that confirms guaranteed lowest available
discount off the Average Wholesale Price (AWP), discount off maximum allowable cost
(MAC) pricing, or the pharmacy's customary cash price.
4. The contractor shall have established procedures for enforcing and monitoring prescription
pricing for the program.
5. Estimate the number and financial amount of discounts for brand name, generic, mail order and
extended retail supply drugs that will pass through to participants, City and Contractor.
6. Describe the mechanism used to guarantee that Santa Ana residents receive all prescription
drugs included in the program, including the discounted price available.
7. Describe the limitations or restrictions on drugs covered.
8. Describe the AWP discount on all brands and what the average of ALL generics will perform.
D. MAIL ORDER/EXTENDED SUPPLY PHARMACY
1. Mail order pharmacy services must be offered in addition to the retail pharmacy network.
2. Extended medication supplies of up to ninety (90) days must be offered through the retail
pharmacy network.
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E. CUSTOMER SERVICE
1. Contractor will exclusively provide comprehensive customer service to participants, including
toll-free telephone help line, dispute resolution process and education about the Discount
Pharmacy Card program.
2. The Contractor shall establish, adequately staff, maintain and publicize a bilingual
English/Spanish toll-free customer service call center that is accessible, at a minimum, from of
8:00 am to 5:00 p.m. PST., Monday through Friday. Please state customer service center hours
in your proposal.
3. The Contractor shall establish, maintain and publicize customer complaint and resolution
procedures to promptly track and address participants' complaints about any aspect of the
prescription drug discount program.
F. INFORMATION AND OUTREACH
1. The Contractor shall develop, implement and publicize bilingual Information and Outreach
Program materials describing the benefits of the program. Please provide as part of your
proposal an Information and Outreach Plan and sample materials.
2. The Contractor shall submit all promotional and educational materials in any media (i.e. print,
digital, electronic, video, audio) and receive advance written approval from the City prior to
distribution, dissemination, publication, broadcast and Internet posting of said material.
G. PROGRAM REPORTING AND MONITORING
1. The Contractor shall establish an internal performance monitoring program for verification of
discounts, customer service, pharmacy network, mail order or extended supply operations.
2. The Contractor shall agree to disclose any and all rebate revenue sources related to prescription
medications that are provided through this program.
H. PROGRAM CARDS
1. The Contractor shall design and produce, at its own expense, the discount pharmacy/program
cards, which shall be subject to prior written approval by the City before distribution.
2. The contractor shall distribute program cards to all eligible participants using various
approaches to assure maximum distribution. Said methodology/distribution plan shall be
subject to prior written approval by the City prior to implementation/distribution.
1. PROGRAM MANAGER
The contractor shall designate and maintain a dedicated Program Manager throughout the term of the
agreement. The Program Manager shall be responsible for the daily ongoing operations of the program
and will serve as the primary contact and liaison between the City and the contractor.
J. IMPLEMENTATION PLAN
1. The contractor shall prepare a comprehensive program design and implementation plan and
timetable describing all set-up details; pharmacy education, marketing and distribution
procedures; data collection processes; and operations and reporting details. The implementation
plan shall be sufficiently detailed to ensure that all operational steps are performed in a logically
sequenced and timely manner along with efficient use of resources.
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2. A preliminary design and implementation plan and schedule shall be submitted to the City
along with the formal proposal. The awarded contractor shall submit, for the City's approval, a
final plan within thirty (30) business days of contract execution.
3. The implementation plan shall address:
a. How the discounts and the pass-through to participants will be documented, tracked,
audited and reported to the City.
b. The process and time duration required for enrolling Santa Ana residents into the
program including the means to perform the enrollment function, maintain enrollment
statistics and re-enrollment procedures.
c. How the pharmacy provider network will be developed and maintained sufficient to
ensure access to program services by all residents of Santa Ana.
d. The customer service/call center's operations, including complaint resolution system, to
timely answer and resolve questions, comments and complaints.
e. Marketing plan, content information and outreach efforts, including how materials will
be developed and distributed.
f. Additional pharmacy services provided. Describe any pharmacy services in addition to
the Discount Pharmacy Card Program that would be available to participants.
g. Steps to be used to protect participants' individually identifiable information.
h. How participants who choose a mail order service will have access to qualified
pharmacists. Also, what steps will be taken to make the mail order program operational.
Provide a detailed description of the proposed process and technology to be used.
i. Proposed time frame for implementation. Please submit timeline.
j. How the contractor will ensure that participants pay the lower of a discount off the
Average Wholesale Price, a discount calculated off MAC Pricing, or the Pharmacy
Promotional/Retail price
K. CONFIDENTIALITY OF PARTICIPANT INFORMATION
The contractor shall establish and maintain procedures and controls that are acceptable to the City to
protect the privacy of participants' information. The contractor shall not sell or disclose any
information concerning any participants who is enrolled in the discount pharmacy card program, other
than aggregate information that does not identify a participant, without the participant's written
consent. Unless the contractor has the participant's prior written consent, the contractor shall not use
any personally identifiable information obtained through the program to promote or sell a program,
service or product not related to the administration of the program. Please submit a copy of your
company's confidentiality compliance program with your proposal.
L. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
The contractor shall comply with all requirements of the Health Insurance Portability and
Accountability Act (HIPAA) along with any and all federal, state and local regulations that are
applicable to the contractor's operations.
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III. EVALUATION OF PROPOSALS
Vendors will be evaluated based on the following evaluation criteria and their ability to provide quality
services. A committee established by the City will evaluate all proposals based on the following
criteria and provide a recommendation to the agency.
Responsiveness to RFP 30%
1. Proposal's compliance with the requirements of this RFP
2. Thoroughness of proposal
3. Compliance with HIPAA regulations
4. Quality and scope of program design and implementation plan
5. Ability of contractor to provide adequate reporting and thoroughness of sample reports
6. Scope of services offered including level of responsiveness and degree of automation
7. Adequacy of financial controls and protection against loss
8. Formula used to determine savings to participants and revenue to City
9. The value of any new product or service suggestions or other new ideas and enhancements
Experience of Firm and Personnel 30%
1. The experience, resources, and qualifications of the firm and individuals assigned to this
account, including manager, supervisors and staff
2. Relevant experience managing similar accounts with public agency clients
3. Financial strength of proposing firm
Past Performances 40%
1. Past record of performance on contracts with other cities, governmental agencies or public
bodies, including such factors as reliability, and compliance with contract terms and conditions
2. Acceptable, verifiable references
Based upon the foregoing criteria, all proposals shall be ranked by score. Only those proposals
receiving a score above 70 will be considered for award. The City reserves the right to award the
contract to any proposer with a score above 70.
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IV. PROPOSAL AND REQUIRED DOCUMENTS
Vendor must submit a detailed proposal that addresses the specifications and should not to exceed 20
pages. Vendor must also present all information and requested documents with their proposal as
specified below. Applicants are asked to use 12 point Times New Roman font.
A. GENERAL
1. Detailed proposal of services in accordance with the specifications detailed in Section 11.
Proposal should take into consideration the evaluation criteria included in Section III. This
section is limited to 20 pages.
2. A preliminary implementation plan and timeline shall be submitted to the City along with the
formal proposal (See Item II.J);
3. Signed Proposal Form, including any deviations from specifications (Section V);
4. Completed vendor's references sheet (Section VI);
5. Copy of proposed discount card
6. Description of national pharmacy network and listing of Santa Ana pharmacy network locations
7. Sample reports
8. Information and Outreach Plan and sample materials (See Item ILF);
9. Attachments A, B, and C are for reference only, but will be required after the contract is
awarded to the successful vendor.
Vendor must submit one original and eight photocopies of their proposal.
196-12
V. PROPOSAL FORM AND DEVIATIONS
1 What is the Average Wholesale Price (AWP)
discount on all brands?
2 What AWP discount will the average of ALL
generics perform?
3 What is the dispensing fee?
4 What is the formula used to determine how
much savings will be passed on to
subscribers, the City and the Contractor?
5 What estimated annual revenue is available
to the City organization for healthy
recreational programming?
6 Who is the PBM?
7 Who provides customer support? Include
phone number.
riease aescrine ana aeviations trom the Ki,F specifications below. It no deviations, state "none".
Deviations:
Responses to this Request for Proposal are due at 4:300 p.m. May 17, 2011. The undersigned
contractor agrees to provide services in accordance with the specifications. I/We have stated herein the
services and fees that I/we will furnish and deliver as specified. Award shall be based upon the
evaluation criteria included in Section III. Where there is a discrepancy between words and figures,
WORDS SHALL GOVERN.
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The City of Santa Ana reserves the right to cancel any agreement in the event that terms under
which vendor is contracted are violated.
Name of Vendor
(Person, Firm, Corp.)
Address
Address
Telephone Number
Signature of Authorized Rep.
Name and Title (Please Print)
Date
Fax Number
12
19D-14
VI. VENDOR'S REFERENCES
This sheet must be completed in full and returned with vendor's proposal.
List and describe fully the last three contracts performed by your company, which demonstrate your
ability to provide services in accordance with the specifications in Section II. Attach additional pages
if necessary. The City reserves the right to contact each of the references listed for additional
information regarding your firm's qualifications.
Customer Name:
Address:
Contract Amount:
Reference No. 1
Contact Individual:
Phone Number:
Year:
Description of equipment and services provided:
Reference No. 2
Customer Name: Contact Individual:
Address:
Contract Amount:
Phone Number:
Year:
Description of equipment and services provided:
Customer Name:
Address:
Contract Amount:
Reference No. 3
Contact Individual:
Phone Number:
Year:
Description of equipment and services provided:
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19D-15
19D-16
ATTACHMENT "A"
CERTIFICATION OF NON-DISCRIMINATION BY CONSULTANTS
As suppliers of goods or services to the City of Santa Ana, the Firm listed below certifies that it does
not discriminate in its employment with regard to race, color, religion, sex, or national origin; that it is
in compliance with all federal, state and local directives and executive orders regarding non-
discrimination in employment; and that it agrees to demonstrate positively and aggressively the
principle of equal opportunity in employment.
WE AGREE SPECIFICALLY:
1. To take affirmative steps to hire minority employees with the company.
2. To establish or observe employment policies within affirmative promotion opportunities for
minority persons at all job levels.
3. To communicate this policy to all persons concerned, including all company employees, outside
recruiting services, especially those servicing minority communities, and to the minority
communities at large.
FIRM
TITLE OF PERSON SIGNING
SIGNATURE
DATE
Please include any additional information available regarding equal opportunity employment programs
now in effect within your company.
14
19D-17
19D-18
ATTACHMENT "B"
SAMPLE ADDITIONAL INSURED ENDORSEMENT
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy #
relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers,
employees, agents and representatives are named as additional insureds ("additional
insureds") with regard to liability and defense of suits arising from the operations and uses
performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on behalf of
the name insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or suit is
brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or
organization would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or materially
reduced in coverage or limits except after thirty (30) days written notice has been given to
the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective
Policy #
Issued to
the endorsement form as part of
Name Insured
Countersigned by
15
19D-19
19D-20
ATTACHMENT "C"
SAMPLE AGREEMENT
CITY OF SANTA ANA SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this day of , 200_ by
(hereinafter "Contractor"), and the City of Santa Ana, a
charter city and municipal corporation organized and existing under the Constitution and laws of the
State of California (hereinafter "City").
RECITALS
A. The City desires to retain a Contractor having special skill and knowledge in the field of
services comparable with "high-level" industry practice.
B. Contractor represents that Contractor is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Contractor represents that it is
knowledgeable in its field and that any services performed by Contractor under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional "high-level" contractor in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms
and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Contractor shall perform those services as set forth in the Services Agreement
Description/Specifications/Work Statement (Exhibit "A" hereto) and all attachments thereto, as well as
the Contractor's Proposal of Services (Exhibit " " hereto) attached to this Agreement. In the event of a
conflict between the terms of this Agreement and any Exhibits or Attachments hereto, the terms of this
Agreement shall prevail.
2. COMPENSATION
a. In consideration for the concession rights granted by this Agreement, Contractor agrees to
pay the City $ during the term of this Agreement (To be determined based on formula).
b. Payment by Contractor shall be made within (__J days of the end of each month
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3. TERM
This Agreement shall commence on the date first written above and terminate on
unless terminated earlier in accordance with Section 12, below. This Agreement may be renewed, at
the option of the City, for two additional two-year terms in a monthly concession fee amount of
$ . Such renewal(s) shall be in a writing executed by the Executive Director of the Parks
Recreations and Community Services Agency and the City Attorney.
4. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to
create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Contractor performs the services which are
the subject matter of this Agreement; however, the services to be provided by Contractor shall be
provided in a manner consistent with all applicable standards and regulations governing such services.
Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and
similar taxes relating to its employees and shall be responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Contractor shall maintain commercial general
liability insurance naming the City, its officers, agents, volunteers, and employees as additional
insured(s) and shall include, but not be limited to protection against claims arising from bodily and
personal injury, including death resulting therefrom and damage to property, resulting from any act or
occurrence arising out of Contractor's operations in the performance of this Agreement, including,
without limitation, acts involving vehicles. The amounts of insurance shall be not less than the
following: single limit coverage applying to bodily and personal injury, including death resulting
therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Contractor shall
supply City with a fully executed additional insured endorsement in substantially the form as set forth
in Exhibit "C" attached hereto upon execution of this Agreement. Said endorsement shall be approved
in form by the City Attorney.
b. Business automobile liability insurance, or equivalent form, with a combined single limit of not
less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and
non-owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of
the Labor Code, Contractor is required to be insured against liability for worker's compensation or to
undertake self-insurance. Prior to commencing the performance of the work under this Agreement,
Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than
$1,000,000 per accident.
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d. If Contractor is or employs a licensed professional such as an architect or engineer
Contractor must obtain and maintain Professional liability (errors and omissions) insurance, with a
combined single limit of not less than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Contractor pursuant to
this section:
(i) Contractor shall maintain all insurance required above in full force and effect for
the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty (30)
days prior written notice to the City.
f. If Contractor fails or refuses to produce or maintain the insurance required by this section or
fails or refuses to furnish the City with required proof that insurance has been procured and is in force
and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement.
Such termination shall not affect Contractor's right to be paid for its time and materials expended prior
to notification of termination. Contractor waives the right to receive compensation and agrees to
indemnify the City for any work performed prior to approval of insurance by the City.
6. INDEMNIFICATION AND HOLD HARMLESS
Contractor agrees to indemnify and hold harmless the City, its officers, agents, employees,
contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just
compensation, lost profits, restitution, judicial or equitable relief or any other type of damage
whatsoever arising out of claims for the same, which may arise from the direct or indirect actions of the
Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf
which relates in any way to the services provided by Contractor under this Agreement; and (2) from
any claim that personal injury, damages, just compensation, lost profits, restitution, or judicial or
equitable relief or any other type of damage whatsoever is due by reason of the terms of or effects
arising from this Agreement or of the Contractor's actions hereunder. This indemnity and hold
harmless agreement applies to all claims for damages, just compensation, restitution, lost profits or any
other judicial or equitable relief or damages suffered, or alleged to have been suffered, by reason of the
events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement.
The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City,
including fees and costs for special counsel to be selected by the City, relative to any action by a third
party challenging the validity of this Agreement, or asserting that personal injury, damages, just
compensation, restitution, lost profits, or judicial or equitable relief or any other type of damage
whatsoever has arisen by reason of the terms of, or effects arising from this Agreement or Contractor's
actions hereunder. City may make all reasonable decisions with respect to its representation in any
legal proceeding.
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7. CONFIDENTIALITY
If Contractor receives from the City information which, due to the nature of such information,
is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or
disclose such information except in the performance of this Agreement, and further agrees to exercise
the same degree of care it uses to protect its own information of like importance, but in no event less
than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential
information includes not only written information, but also information transferred orally, visually,
electronically, or by other means. Confidential information disclosed to either party by any subsidiary
and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and
nondisclosure shall not apply to any information that (a) has been disclosed in publicly available
sources; (b) is, through no fault of the Contractor, disclosed in a publicly available source; (c) is in
rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Contractor without reference to
information disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Contractor covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall
be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or
certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the
manner provided in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Parks, Recreation and Community Services
City of Santa Ana
26 Civic Center Plaza (M-75)
P.O. Box 1988
Santa Ana, California 92702
and
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City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Contractor:
A party may change its address by giving notice in writing to the other party. Thereafter, any
communication shall be addressed and transmitted to the new address. If sent by mail, communication
shall be effective or deemed to have been given three (3) days after it has been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent
by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24)
hours after the time set forth on the transmission report issued by the transmitting facsimile machine,
addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state,
County or City holidays shall be excluded.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive agreement between the City and
Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the
event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this
Agreement shall prevail. This Agreement may not be modified except by written instrument signed by
the City and by an authorized representative of Contractor. The parties agree that any terms or
conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the
terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this
Agreement acknowledges that no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party, which are not
embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without the
City's prior written consent shall be considered null and void. Nothing in this Agreement shall be
construed to limit the City's ability to have any of the services which are the subject to this Agreement
performed by City personnel or by other Contractors retained by City.
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12. TERMINATION AND DAMAGES
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination and by the Contractor upon ninety (90) days written notice. In the event of termination by
the City, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all
services performed by Contractor prior to receipt of such notice of termination, subject to the following
conditions:
a. As a condition of such payment, the Executive Director may require Contractor to deliver to
the City all work product completed as of such date, and in such case such work product shall be the
property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such
purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified
in the Recitals of this Agreement and in the Specifications, Exhibit "E" hereto.
c. Material Breach: If the Director determines the Contractor has failed in the performance of
the duties and/or schedule as provided herein, the Director may consider the Contractor in material
breach. City may exercise all remedies in law or equity for said breach including, but not limited to: 1)
withholding all or a portion of payment owed relative to any such failure to perform or for any delay in
performance, and 2) directing the work be accomplished by either City employees or a new contractor
at Contractor's expense, as determined by the Director. Contractor shall be responsible for all costs
resulting from any breach, including incidental and consequential damages (see Sample Failure To
Perform Letter, Exhibit " " hereto).
13. DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable
law, in recruitment, selection, training, utilization, promotion, termination or any other employment
related activity. Contractor affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
14. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that Orange
County, California, shall be the venue for any action or proceeding that may be brought by the parties
hereto or arises out of, or in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and
required by the laws and regulations of the United States, the State of California, the City of Santa Ana
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and all other governmental agencies. Contractor shall notify the City immediately and in writing of its
inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said
inability may, at the City's discretion, be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in
the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in
the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
Maria Huizar
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH STRAKA
Interim City Attorney
By
Laura Sheedy
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
GERARDO MOUET
Executive Director of the
Parks Recreation and Community
Services Agency
CITY OF SANTA ANA:
DAVID N. REAM
City Manager
CONTRACTOR:
By:
NAME)
TITLE)
Tax ID #
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