HomeMy WebLinkAbout2008-002
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RESOLUTION NO. 2008-2
A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
WITH MARSH RISK & INSURANCE SERVICES TO PROVIDE RISK
MANAGEMENT AND PROPERTY INSURANCE BROKERAGE SERVICES FOR
THE CITY FOR A PERIOD OF ONE YEAR, WITH FOUR CONSECUTIVE ONE-
YEAR RENEWAL OPTIONS TO BE EXERCISED BY THE CITY.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager of the City of San Bernardino is hereby authorized
and directed to execute on behalf of said City an Agreement with Marsh Risk and Insurance
Services to provide property insurance brokerage coverage, a copy of which is attached hereto,
marked Exhibit "A" and incorporated herein by reference as though fully set forth at length.
SECTION 2. The authorization to execute the above referenced agreement IS
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
WITH MARSH RISK & INSURANCE SERVICES TO PROVIDE RISK
MANAGEMENT AND PROPERTY INSURANCE BROKERAGE SERVICES FOR
THE CITY FOR A PERIOD OF ONE YEAR, WITH FOUR CONSECUTIVE ONE-
YEAR RENEWAL OPTIONS TO BE EXERCISED BY THE CITY.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a relmlarmeeting thereof, held on the
7th day of January ,2008, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
x
BAXTER
x
BRINKER
x
DERRY
-X-
KELLEY
x
JOHNSON
x
MC CAMMACK
x
Q~ f.J. ~
Ra'Chel Clark, City Clei'k
The foregoing resolution is hereby approved this /t::JPf day of January
2008.
~
Approved as to
Form and legal content:
JAMES F. PENMAN,
City A~ (' I/()~!
BY:' jt:Ut<:J
2008-2
Exhibit A
1 AGREEMENT
2 THIS AGREEMENT is made and entered into this 7th day of January, 2008, by and
3 between the City of San Bernardino, a municipal corporation, hereinafter referred to as "City"
4 and Marsh Risk & Insurance Services, hereinafter referred to as "Marsh."
5 WHEREAS, after a request for qualifications and proposal for insurance brokerage
6 services, Marsh has been selected and appointed as City's exclusive risk management
7 advisor, risk management consultant, and insurance broker, as applicable, for all forms of the
8 City's property insurance program.
9 WHEREAS, Marsh has experience and knowledge in, and is properly licensed for, the
10 performance of insurance brokerage services;
11 NOW THEREFORE, for and in consideration of the mutual promises, covenants and
12 conditions herein contained, the parties hereto agree as follows:
13 Under the direction of the City's Director of Human Resources, Marsh shall provide the
14 City professional risk management and insurance brokerage services according to the terms
15 and conditions of this Agreement.
16 1. Aareement.
17 A. City does hereby contract with Marsh to provide professional risk
18 management and insurance brokerage services as hereinafter provided for a period of five
19 (5) years, commencing on the seventh (7th) day of January 2008 and terminating on January
20 6,2013.
21 B. Notwithstanding the term, either party may terminate this Agreement
22 upon 90 days' prior written notice to the other party. In the event this Agreement is
23 terminated, Marsh will assist City in arranging a smooth transition process, subject to receipt
24 by Marsh of all amounts due Marsh from City.
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1 C. Marsh's obligations and the obligation of its affiliates (including, if
2 applicable, Marsh's United Kingdom affiliates) to provide services to City will cease upon the
3 effective date of termination, unless otherwise agreed upon in writing.
4 D. In the event of termination by City prior to expiration, Marsh's annual
5 compensation, as set forth in Appendix C, Compensation, for the current Agreement year will
6 be deemed earned according to the following rates for risk management and insurance
7 brokerage services performed through the date of termination: sixty percent (60%) at the
8 commencement of the current Agreement year; seventy-five percent (75%) after four
9 months; and one hundred percent (100%) after seven months.
10 E. In the event of termination by Marsh prior to expiration, Marsh's annual
11 compensation will be deemed earned on a pro-rata basis.
12 2. Authorization:
13 Marsh shall be authorized to represent and assist City in all discussions and
14 transactions with insurers relating to the lines of insurance as set forth in Appendix A, Scope
15 of Services, when acting as the City's broker, proVided that Marsh shall not place any
16 insurance on behalf of the City unless so authorized by City in writing. Marsh shall be an
17 independent contractor and shall not be deemed an employee of City during the term of this
18 Agreement.
19 3.
Services to be Performed bv Marsh:
A. The Scope of Services, attached hereto as Appendix A, further defines
detailed risk management and insurance brokerage services provided by Marsh, according to
respective lines of insurance, and is hereby incorporated into and made a part of this
Agreement.
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24 B. Within 120 days of commencement of this Agreement, Marsh shall
25 obtain and submit new insurance quotations for all City's property insurance coverages
26 currently in force, as well as any other non-property insurance coverage listed on Appendix
27 A, Section 1.
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1 C. Whenever market conditions permit, Marsh shall obtain at least two (2)
2 quotations on each separate insurance coverage or layer of insurance.
3 D. Marsh shall submit firm quotations to the City's Director of Human
4 Resources at least thirty (30) days prior to the expiration of existing policies; provided
5 however, that City's Director of Human Resources may waive such thirty (30) day notice in
6 the event Marsh can demonstrate to the satisfaction of the City's Director of Human
7 Resources that there exists extenuating circumstances which preclude or otherwise make
8 such thirty (30) day notice impracticable.
9 E. Marsh shall make a good faith effort to give notice to City's Director of
10 Human Resources of all favorable or unfavorable market developments which might affect
11 the City. Annually, on or before March 1, Marsh will provide a written assessment of policies
12 in force and include recommendations, if any, for improved risk coverage at a lower price to
13 the City. Annually, on or before November 1, Marsh will provide in writing the best estimates
14 for the renewal premium costs of all City's insurance.
15 F. It is understood that, from time to time, Marsh may be requested by City
16 to obtain insurance quotations on coverages not contained in said Scope of Services, as
17 mutually agreed by Marsh and the City.
18 G. At the request of the City's Director of Human Resources, Marsh shall
19 include the City's Director of Human Resources, or hislher designated representative, in
20 negotiations with underwriters involving placement of all the City's insurance coverages. It is
21 required that Marsh will utilize insurers holding an A. M. Best rating of "A" or better, as well
22 as an A. M. Best minimum Financial Size Category of Class VII. Any exceptions or changes
23 in ratings require the approval of the Director of Human Resources. Marsh will apprise the
24 Director of Human Resources of the A. M. Best ratings for all insurers participating in
25 coverage quotations for the City.
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1 H. It is agreed and understood that the Marsh account team will be
2 managed by Craig Morris, Senior Vice President, as long as he is employed by Marsh. Any
3 change in the structure of Marsh's account team with require approval by the City's Director
4 of Human Resources, which shall not be unreasonably withheld.
5 1. It is the Marsh account team's responsibility to:
6 (1) Oversee, coordinate, and be responsible for, all relevant services
7 performed by Marsh, subsidiaries, underwriters, or service agencies arranged by Marsh's
8 account team on behalf of the City.
9 (2) By April 30, 2008, Marsh will provide City with a complete
10 insurance summary, including coverages for the City, the San Bernardino Municipal Water
11 Department and the Economic Development Agency. Marsh will provide City with an
12 updated insurance summary within thirty (30) days of any changes in policies or coverages.
13 (3) Respond to any extraordinary needs of City, as necessary.
14 J. It is understood and agreed that Marsh's account team shall meet with
15 the City's Director of Human Resources, or his/her designated representative, no less than
16 quarterly, commencing in the first quarter of 2008.
17 4. Terms and Conditions:
18 The Standard Terms and Conditions set forth in Appendix B shall apply to the
19 Services performed by Marsh under this Agreement.
20 5. Work to be Performed bv City:
21 City's responsibilities are identified in the attached Appendix B, paragraph 2,
22 Client Responsibilities, which are critical to the accurate and competent placement of
23 insurance coverage for City.
24 6. Marsh's Compensation and Payment:
25 City shall compensate Marsh annually for risk management and insurance
26 brokerage services pursuant to this Agreement as follows:
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1 A. For the performance of all services contemplated under this Agreement
2 and its Appendices A and B, City shall compensate Marsh an annual fee of Ninety Thousand
3 Dollars and No Cents ($90,000.00), payable in quarterly installments, in accordance with the
4 compensation terms and conditions referenced in the attached Appendix C, Compensation.
5 B. Future annual fee compensation will be paid as follows:
6 Year 2: $90,000; Year 3: $95,000; Year 4: $95,000; Year 5: $100,000
7 C. The City is presently a member of Big Independent Cities Excess Pool
8 (BICEP), an insurance Joint Powers Authority, which provides general, law enforcement,
9 automobile, publiC officials and personal injury liability coverage at $25 million in excess of $1
10 million. Should the City request Marsh to market coverage for these exposures in excess of
11 the BICEP program, Marsh shall be paid commissions directly from the insurance carriers.
12 7. Assianment:
13 Neither City nor Marsh shall assign or transfer its interest in this Agreement
14 without the written consent of the other party.
15 8. ComDliance With Laws:
16 This Agreement shall be governed by and construed in accordance with any
17 and all applicable laws of the United States, the State of California, and ordinances,
18 regulations and policies of City.
19 9. Professional Liability Insurance:
20 Marsh shall maintain throughout the terms of this Agreement professional
21 liability and errors and omissions coverage with limits in an amount of $5 million per claim.
22 Marsh shall furnish to City a certificate issued by Marsh's professional liability insurance
23 carrier or a person authorized to issue certificates on the insurer's behalf, showing that the
24 above-mentioned insurance has been issued and is in full force and effect. Said insurance
25 shall endeavor to prOVide thirty (30) days' written notice to the City's Director of Human
26 Resources prior to any cancellation of said insurance.
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1 10. Hold Harmless:
2 Marsh agrees to defend, indemnify and hold harmless the City, its officials,
3 employees, representatives and volunteers from and against any and all claims, demands,
4 defense costs, liability or consequential damages of any kind or nature arising out of or in
5 connection with the Marsh's performance or failure to perform under the terms of this
6 Agreement.
7 11. Miscellaneous: This Agreement may be modified or otherwise amended, only
8 if such modification, amendment or waiver is in writing and signed by the parties hereto.
9 This Agreement shall be binding upon and inure to the benefit of the parties' respective
10 successors. Neither party shall have any liability for any failure or delay in performance of its
11 obligations under this Agreement because of circumstances beyond its reasonable control,
12 including, without limitation, acts of God, fires, floods, earthquakes, acts of war or terrorism,
13 civil disturbances, sabotage, accidents, unusually severe weather, governmental actions,
14 power failures, computerlnetwork viruses that are not preventable through generally
15 available retail products, catastrophic hardware failures or attacks on its server.
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1 12. ComDlete Aareement:
2 This Agreement, together with all appendices attached hereto, contains the
3 entire understanding of the parties with respect to the subject matter hereof and supersedes
4 all written or oral prior agreements.
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6 ATTEST:
cm OF SAN BERNARDINO
Municipal Corporation of the State of California
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9 By:C1~h.~
1 0 R~hel Clark, City Clerk
By:
r d Wilson, City Manager
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MARSH RISK & INSURANCE SERVICES
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By, ~Wn~
Craig . Morris, Senior Vice President
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18 Approved as to form:
19 James F. Penman, City Attorney
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21 By:
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Appendix A
Scope of Services
1. Marsh will act as the City's risk management advisor, consultant and insurance
broker, as applicable, with respect to the following lines of insurance and their
respective dates of coverage:
a. Auto/Motor Uability excl Physical Damage for Animal Control Services for the
City of Fontana - 07/01/2008
b. General Uability (may include Products) for the Center for Individual
Development - 07/01/2008
c. Lead Umbrella/Excess Uabllity for the Center of Individual Development -
07/01/2008
d. Fidelity Bond (Crime Insurance) - 07/01/2008
e. Boiler & Machinery - 07/01/2008
f. Difference in Conditions - 07/01/2008
g. Property - 07/01/2008
h. Surety - (various dates)
2. Marsh shall provide the following services as respects the lines of insurance In
Section 1, above:
a. Work with the City to assess the City's risk exposures;
b. Work with the City to design and develop the City's insurance program;
c. Assist with documentation and other steps to obtain commitments for and
implementation of the City's insurance program upon the City's instructions;
d. Keep the City informed of significant changes and/or trends in the insurance
marketplace and provide the City with annual information on market trends;
e. Assist the City in identifying insurers. Solicit quotations from insurers for
selection by the City for the placement of City's insurance program in
accordance with the City's instructions;
f. Conduct a Renewal Strategy Meeting in advance of each placement;
g. Negotiate on City's behalf with insurers and keep the City informed of
significant developments in the negotiations;
h. Assist the City with the evaluation of options received from the insurance
market;
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i. Use best efforts to place insurance on behalf of the City as directed by the
City and secure the City's approval prior to requesting insurers to bind
coverage;
j. Follow up with insurance carriers for timely issuance of policies and
endorsements;
k. Promptly respond to City's questions related to coverage placed by Marsh or
the placement process;
I. Deliver binders on or before the effective date of coverage being placed,
subject to placement;
m. Process or facilitate the processing and delivery of certificates or memoranda
of insurance and auto identification cards with respect to insurance policies
placed by Marsh, as requested by the City;
n. Review policies and endorsements for conformity to agreed terms and
coverages;
o. Provide coverage summaries for all new placements and updates on changes
to existing policies;
p. Review premium and exposure audits, rating adjustments, dividend
calculations and loss data;
q. Assist the City in establishing claims reporting procedures to insurers;
r. Monitor pUblished flnanciallnformation of the City's current insurers and alert
the City when the status of one or more of such insurers falls below Marsh's
minimum financial guidelines. Insurers with whom the City's risks have been
placed will be deemed acceptable to the Qty, in the absence of contrary
instructions from the City;
s. Provide the City with detailed invoices, except in the case of direct billing by
insurers. Remit premiums to insurers and taxes and fees to the relevant
authorities on a timely basis, following receipt thereof from the City;
t. Provide the following property loss control services as respects
locations/facilities in San Bernardino:
~ Evaluate internal hazards of the City's operations;
~ Evaluate external exposures of the City's operations;
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~ Provide City with information relating to government regulations which
may effect property loss control;
~ Assist City in City's efforts to comply with or mitigate insurer
recommendations;
~ Perform one loss control review of the City's facilities;
~ Prepare specialized underwriting information; and
~ Perform special studies relating to Seismic Assessment.
u. Assist the City in the development and implementation of internal claims
handling procedures;
v. Assist the City with initial reporting of claims to Insurers as follows:
~ Evaluate coverage applicability;
~ With the exception of Workers' Compensation and/or Primary Casualty
claims, prepare loss notices to insurers;
~ Notify insurers of claims, provided that the City's Marsh claims
representative is informed of the claim in writing by the City, with details
of the claim, and Marsh has placed the applicable policies or the Marsh
claims representative has been provided written notice by the City of the
applicable carrier and policies; and
~ Coordinate responses to, meetings with, and visits to loss sites by
insurers;
w. Assist the City with the settlement of claims with Insurers as follows:
~ Assist in the development of settlement strategies;
~ Assist with insurer negotiations; and
~ Assist the City with litigation management issues that impact claim
settlement.
x. Provide benchmarking information for lines of insurance placed by Marsh; and
y. Upon the City's request, review City's contracts with respect to Insurance and
risk management related issues.
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Marsh shall provide up to one hundred (100) hours, in the aggregate, for the
Marsh risk consulting services provided in Sectlons 2.t through 2.w. Should
the City require additional services and Marsh agrees to provide such
services, the City agrees to compensate Marsh at this standard hourly rate as
such additional services are performed.
Sections 2(e), (g), (i), (j), (I), (m), (s), (v) and (w) will only apply with
respect to placements for which Marsh is acting as the City's broker.
3. Whenever the Marsh account team Is informed in writing by the City that a claim has
been notified to the primary carrier, Marsh will notify all applicable excess carriers of
the claim, unless the City gives the Marsh account team contrary instructions in
writing, provided that Marsh has placed the applicable excess policies or the Marsh
aty executive has received written notice from the City of the applicable carrier and
policies. If Marsh is Instructed not to provide notice to any excess carrier, Marsh
shall have no responsibility for any consequences arising out of the failure to give
notice.
4. Additional Services are available for separate compensation and shall be agreed
upon in advance and addressed by amendment to this agreement or by separate
agreement (in certain cases with affiliates of Marsh). Such additional services
include, but are not limited to:
a Actuarial analysis of Workers' Compensation, General Uability, and Automobile
Uability claims, or other lines of insurance;
b Consulting relating to workers' compensation cost containment, Including
behavioral risk management, absence management, cumulative injury
management, financial diagnostics and custom cost containment solutions;
c Business interruption and other claim valuation services offered by Kroll's
Forensic Accounting practice;
d Environmental risk consulting services;
e Operations and assets consulting services, including business continuity
management;
f Supply chain risk management, loss control and engineering support services
and strategic risk assessments;
g Oaims services other than those specified above, Including catastrophic claims
support, mass tort claims support, claims management services, special claims
advocacy services and archival research;
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h Services in connection with loss portfolio transfers and alternative risk financing,
including placements made in connection with such services;
Captive insurance company feasibility studies;
j Establishment and administration of captive insurers;
k Placement of non-recurring insurance, including, but not limited to:
. one-time placements for construction projects,
. one-time placements for marine/cargo risks,
. one-time placements for surety,
. Placements for specific financial risks, such as trade credit,
. Placements involving significant quantitative or actuarial analysis or modeling,
. Placement of risks with financial institutions other than insurance carriers,
. Placements of risks not customarily accepted by insurers;
Employee benefits services;
m Pension plan consulting;
n Compensation consulting;
o Executive deferred compensation services;
P Risk management claims information systems, including STARS and
TrendTracker software programs and related services;
q Enterprise Risk Management consulting;
r Strategic Risk Assessment;
s Provision of Marsh personnel on an out-sourced basis;
t Intellectual Property Consulting; and
u Security Consulting:
. Insurance-related mergers and acquisition due diligence services and
transactional solutions;
. Placement and servicing of owner-controlled insurance programs; and
. Interactive on-line City services.
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Appendix B
Standard Terms and Conditions
These Standard Terms and Conditions are part of the attached City Service Agreement
between City Of San Bemardino (the "City") and Marsh Risk & Insurance Services
("Marsh").
1. Taxes and Fees.
In certain cases, insurance placements that Marsh makes on the City's behalf may
require the payment of insurance premium taxes (including U.S. federal excise
taxes), sales taxes, use taxes, surplus or excess lines and similar taxes and/or fees
to federal, state or foreign regulators, boards or associations. The City agrees to pay
such taxes and fees, whenever assessed. To the extent practical, such taxes and
fees will be identified by Marsh on invoices covering such placements. Any such
taxes and fees collected by Marsh will be promptly remitted by Marsh to the
appropriate authorities.
2. ~itv ResDonsibilities
The City shall be solely responsible for the accuracy and completeness of
information and other documents furnished to Marsh and/or insurers by the City, and
the City shall sign any required application for insurance. The City recognizes and
agrees that all insurance coverages placed in connection with this Agreement and all
Services, evaluations, reports and recommendations provided by Marsh hereunder
are based on data and information furnished by the City.
Marsh will be under no obligation to investigate or verify the completeness or
accuracy of any such data or information, nor will Marsh have any liability for any
errors, deficiencies or omissions in any Services, evaluations, reports or
recommendations provided to, or any insurance coverages placed on behalf of, the
City that are based on such inaccurate or incomplete data or information. The City
understands that the failure to provide all necessary information to an insurer,
whether intentional or by error, could result in the impairment or voiding of coverage.
The City will review all policies, endorsements and program agreements submitted
by Marsh and will advise Marsh of anything the City believes is not in accordance
with the negotiated coverage and terms within thirty days following receipt.
3. Intermediaries.
(a) When in Marsh's professional judgment it is necessary or appropriate and
subject to the City's prior approval, Marsh may utilize the services of other
intermediaries, including wholesale brokers, to assist in the marketing of the
City's insurance. Such intermediaries may be affiliates of Marsh.
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(b) Wholesale brokers may represent insurers or act as managing general agents.
Prior to utilizing a wholesale broker in connection with a placement for the City,
Marsh shall disclose to the City the compensation received or to be received by
Marsh and its affiliates in connection with the wholesale placement, any interests
of Marsh and its affiliates in the wholesale broker, any contractual agreements
between Marsh and its affiliates, on the one hand, and the wholesale broker, on
the other, and altematives to using the wholesale broker.
~ Marsh shall disclose to the City the compensation of any Marsh affiliated
intermediaries utilized in connection with the City's placements, and obtain the
City's consent to such compensation, prior to the binding of coverage. Marsh
shall disclose to the City the compensation of any non-Marsh affiliated
intermediaries utilized in connection with the City's placements to the extent
known by Marsh.
4. Other Revenue.
(a) If the City requests assistance with obtaining premium financing in connection
with the City's placements and Marsh provides such assistance, Marsh may
receive compensation from the finance company that provides premium financing
to the City. Marsh shall provide to the City information relating to Marsh's and its
affiliates' arrangements with and interests in the premium finance companies to
be considered by the City and the compensation that Marsh and its affiliates
would receive from finance companies with respect to the City's placements.
(b) Marsh eams and retains interest income on premium payments held by Marsh on
behalf of insurers during the period between receipt of such payments from City
and the time such payments are remitted to the applicable insurer, where
permitted by applicable law.
5. Confidentialitv.
(a) Confidential Information.
The City may provide Marsh with certain proprietary and confidential information
("Confidential Information") in connection with the Services provided by Marsh
under this Agreement. Neither Marsh nor any of its employees or agents directly
or indirectly shall disclose to any third party or use any Confidential Information
furnished by or on behalf of City for any purpose except in furtherance of the
Services; or other insurance brokerage, risk consulting, risk financing, risk
transfer, employees benefits or other insurance-related services rendered by
Marsh to City, which may include in the normal course of business the release to
insurers and other financial institutions of Confidential Information relevant to the
underwriting and/or evaluation of City's risks and the processing of its claims,
provided that such insurers and financial institutions are informed of the
confidential nature of such information.
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Marsh shall take all steps reasonably required to maintain the confidentiality of
Confidential Information in Marsh's possession. The transmission of Confidential
Information via electronic data transmission networks which provide for the
security of users' data shall be deemed consistent with Marsh's obligations
hereunder unless such use is contrary to City's express instructions.
(b) Exceotions.
The restrictions and agreements set forth above shall not apply to any
Confidential Information:
(i) which at the time disclosed to or obtained by Marsh is in the public domain;
(ii) which becomes part of the public domain through no act, omission or fault of
Marsh;
(iii) which Marsh's records demonstrate was developed independently by Marsh
or was received by Marsh from a third party which Marsh had no reason to
believe had any confidentiality or fiduciary obligation to the City with respect to
such information;
(iv) which is required to be disclosed by law, including, without limitation,
pursuant to the terms of a subpoena or other similar document. However, Marsh
shall, to the extent practical, give prior timely notice of such disclosure to the City
to permit the City to seek a protective order, and, absent the entry of such
protective order, Marsh shall disclose only such Confidential Information that
Marsh is advised by its counsel must be disclosed by law; or
(v) following the lapse of two years after disclosure of such information to Marsh.
(c) Return of Confidential Information.
As between the City and Marsh, Confidential Information shall be the sole and
exclusive property of the City. Upon the City's request, all documents and
records in Marsh's possession containing Confidential Information shall be
returned to the City. However, that Marsh may retain copies of documents that
may contain Confidential Information which are necessary for the conduct and
proper record keeping of Marsh's business in accordance with standard
operating procedures or applicable law.
(d) Remedv.
It is understood and agreed that money damages would not be a sufficient
remedy for any breach of these confidentiality provisions and the City shall be
entitled to injunctive relief as a remedy for such breach, without prejudice to any
other rights or remedies available to the City under applicable law.
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6. F!ecord Retention.
Files (other than core documents, as defined in Marsh's record retention policy,
including insurance policies, which are permanently retained) will be retained for no
more than fIVe years after the expiration of a particular policy's term.
7. Disclaimers: Limitation of Liability.
(a) Marsh does not speak for any insurer, is not bound to utilize any particular
insurer and does not have the authority to make binding commitments on behalf
of any insurer, except under special circumstance which Marsh shall always
endeavor to make known to the City. Marsh shall not be responsible for the
solvency of any insurer or its ability or willingness to pay claims, return premiums
or other financial obligations. Marsh does not guarantee or make any
representation or warranty that insurance can be placed on terms acceptable to
the City.
(b) If Marsh has taken over any existing program or policies implemented by another
broker, Marsh will not assume any responsibility for the adequacy or
effectiveness of those programs or policies or any acts or omissions occurring
prior to Marsh's engagement. Within 45 days, Marsh will have completed a
review of such programs and policies and will make recommendations it believes
are necessary.
(c) Any loss control services and/or surveys performed by Marsh under this
Agreement are advisory in nature. Such services are limited in scope and do not
constitute a safety inspection as provided by a safety engineering service. Marsh
does not claim to find or include every potential loss, hazard, statutory or code
violation or violation of good practice.
(d) All surveys and reports are based upon conditions observed and information
supplied by the City. Marsh does not expressly or impliedly guarantee or warrant
in any way the safety of any site or operation or that the City or any of its sites or
operations is in compliance with federal, state or local laws, codes, statutes,
ordinances or recommendations. In any event, Marsh's liability if any, relating to
or arising out of loss control services performed by it for the City shall not exceed
the total compensation paid to Marsh under this Agreement.
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Appendix C
Compensation
1. As compensation for providing the Services, the City shall pay Marsh an initial annual fee
of $90,000.00 to be paid by the City commencing January 31, 2008, in equal quarterly
installments. Future annual compensation fees are capped as follows:
Year 2: $90,000 Year 3: $95,000 Year 4: $95,000 Year 5: $100,000
2. Prior to each placement by Marsh for the City, Marsh shall disclose to the City and obtain
the Qty's approval of any commissions to be collected by Marsh or its affiliates with
respect to such placement. Marsh shall credit amounts equal to any retail commissions
collected by Marsh or its affiliates against remaining installments of the annual fee
(except as provided below) and, to the extent in excess of the remaining Installments,
refund previously paid installments of the annual fee.
3. In the event such retail commissions for a Contract year exceed the annual fee for that
year, then such excess retail commissions shall be returned to the City if permitted by
law. Otherwise, an amount equal to such excess retail commissions shall be carried
forward and applied against Marsh's annual compensation for subsequent years if
permitted by law. Any wholesale commissions collected by Marsh or its affiliates will not
be credited against the annual fee.
4. In addition to the compensation set forth above, Marsh's foreign offices and affiliates
shall be entitled to receive commissions on foreign local placements made on behalf of
the City or its foreign subsidiaries, which shall be in addition to and not be credited
against the annual fee. Marsh shall disclose to the City and obtain the Oty's approval of
such commissions prior to placement. Marsh may make such disclosure to and obtain
such approval from the City's local operating management.
5. In the event (I) the City elects to obtain insurance for a particular line of coverage from a
foreign insurer domiciled In a country not part of the City's insurance program with
respect to such line of coverage as of the commencement date of this Agreement; and
(Ii) the resources and services of a foreign Marsh affiliate are necessary or appropriate
for such placement, Marsh and the City shall negotiate additional compensation for such
services and/or modification to Marsh's compensation in good faith.
6. Any commissions collected by Marsh or its affiliates shall be considered fully earned at
the time of placement, even if an Insurance policy placed by Marsh or its affiliates for the
City or its foreign subsidiaries is terminated by the City or its foreign subsidiaries prior to
expiration, unless such policy is replaced by another policy placed by Marsh or its
affiliates for the City or its foreign subsidiaries during the term of this Agreement.
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