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HomeMy WebLinkAbout2013-054 RESOLUTION NO. 2011-54 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A VENDOR 3 SERVICES AGREEMENT BETWEEN YORK RISK SERVICES GROUP AND THE CITY OF SAN BERNARDINO FOR WORKERS' COMPENSATION THIRD PARTY 4 CLAIMS ADMINISTRATOR SERVICES. 5 6 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized 8 9 and directed to execute on behalf of said City a Vendor Services Agreement between York 10 Risk Services Group and the City of San Bernardino for Workers' Compensation Third Party 11 Claims Administrator and related services, a copy of which is attached hereto marked Exhibit 12 "A" and incorporated herein by reference as fully as though set forth at length. 13 SECTION 2. The Purchasing Manager is hereby authorized to issue a Purchase Order 14 15 to York Risk Services Group for workers' compensation third party claims administrator 16 services for a total annual amount not to exceed $298,518.00. 17 SECTION 3. The authorization granted hereunder shall expire and be void and of no 18 further effect if the agreement is not executed by both parties and returned to the Office of the 19 City Clerk within sixty (60) days following the effective date of the Resolution. 20 /// 21 22 23 /// 24 25 26 27 28 2013-54 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF VENDOR 2 SERVICES AGREEMENT BETWEEN YORK RISK SERVICES GROUP AND THE 3 CITY OF SAN BERNARDINO FOR WORKERS' COMPENSATION THIRD PARTY CLAIMS ADMINISTRATOR SERVICES. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 6 and Common Council of the City of San Bernardino at a i oint regular meeting 7 thereof, held on the 18 th day of March , 2013, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ x 10 11 JENKINS x 12 VALDIVIA x 13 SHORETT x 14 KELLEY x 15 JOHNSON x 16 17 MCCAMMACK x 18 19 Georgeann Hanna, ity Clerk 20 The foregoing Resolution is hereby approved this Q1' day of March , 2013. 21 22 23 'atri. J. Morris, _yor City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, 26 City Attorney 27 L.)28 2013-54 VENDOR SERVICES AGREEMENT BETWEEN YORK RISK SERVICES GROUP AND THE CITY OF SAN BERNARDINO This Vendor Services Agreement (the "Agreement") is entered into this 18th day of March, 2013, by and between York Risk Services Group ("Vendor") and the City of San Bernardino ("City" or "San Bernardino")(Vendor and the City may be collectively referred to as the "Parties"). WITNESSETH: A. WHEREAS, The City of San Bernardino is in need of a vendor to provide Workers' Compensation Third Party Claims Administrator Services, and B. WHEREAS, it has been determined by the Human Resources Division Manager that Vendor represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, Vendor is competent, experienced and able to perform said services; and D. WHEREAS, Vendor will provide the most advantageous and responsible services. NOW,THEREFORE, the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY VENDOR 1.1. Scope of Services. For the remuneration stipulated, Vendor shall provide the professional services described in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by this reference. If a conflict arises between the Proposal and this Vendor Services Agreement (hereinafter "Agreement"),the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by Vendor pursuant to this Agreement shall be provided by personnel identified in the Proposal and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional vendors in similar fields and circumstances in accordance with sound professional practices. Vendor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Vendor's performance of this Agreement. Vendor further represents that no City employee will provide any services under this Agreement. 1.3. Warranty. Vendor warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety 1 2013-54 in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Vendor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, arising from or related to Vendor's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Vendor shall not engage in, nor permit their officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Vendor may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Vendor's sole cost and expense. 1.6 Conflicts of Interest. During the term of this Agreement, Vendor shall at all times maintain a duty of loyalty and a fiduciary duty as to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City. 1.7 City Business Certificate. Vendor shall obtain and maintain during the term of this Agreement, a valid City Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of Vendor to practice their profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, Vendor shall be paid an amount not to exceed $298,518.00 through March 17, 2014. This amount is inclusive of all professional fees and expenses. 2.2. Additional Services. Vendor shall not receive compensation for any services provided outside the scope of services specified in the Proposal or the Scope of Services unless the City, prior to Vendor's performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Vendor may submit invoices to City for approval. Said invoice shall be based on the total of all Vendor's services which have been completed to City's sole satisfaction. City shall pay Vendor's invoice within forty-five (45) days from the date City receives said invoice. The invoice shall describe in detail, the services performed and the 2 2013-54 associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Vendor's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 2.5 Confidentiality of Reports. Vendor shall keep confidential all reports, information and data received, prepared, or assembled pursuant to performance under this Agreement. Such information shall not be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein, or extended by amendment. 3.2 Termination. City or Vendor may terminate the services provided under Section 1.1 of this Agreement upon ninety (90) days' written notice to the other party. In the event of termination, Vendor shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by Vendor in their performance of this Agreement shall be delivered to the City within ten (10) days of delivery of termination notice to Vendor, at no cost to City. Any use of uncompleted documents without specific written authorization from Vendor shall be at City's sole risk and without liability or legal expense to Vendor. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. Vendor shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. 3 2013-54 • (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. Vendor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shalt be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Vendor may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. 4 2013-54 IF TO VENDOR: IF TO CITY: York Risk Services Group City of San Bernardino John Lord, Managing Vice President 300 North D Street 1950 S. Sunset Lane, Ste. 300 San Bernardino, CA 92418 San Bernardino, CA 92408 Attn: Human Resources Division Manager Phone: (909) 620-1375 Phone: (909) 384-5161 5.3. Attorneys' Fees: In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment: Vendor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Vendor's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's obligation to perform all other obligations to be performed by Vendor hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. Vendor shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to Vendor's performance under this Agreement, except when caused solely by the City's negligence. 5.7. Independent Contractor. Vendor, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of City. Vendor shall secure, at its own expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Vendor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither Vendor nor its 5 2013-54 officers, agents and employees shall be entitled to receive any benefits which employees of City are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of Vendor and its officers', agents' and employees' work for the City. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the City and Vendor. Vendor shall be deemed the agent of the City, for the sole and limited purpose of serving as the City's Workers' Compensation Third Party Administrator as set forth herein and to the extent of the authority granted herein, subject to the City of San Bernardino Charter. 5.8 Conflict of Interest Disclosure: Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. Vendor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by City. 5.9. Responsibility for Errors. Vendor shall be responsible for its work and results under this Agreement. Vendor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Vendor occurs, then Vendor shall, at no cost to City, provide all other Vendor's professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. Vendor shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Vendor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 6 2013-54 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. Dated: , 2013 VENDOR By: Dated , 2013 CITY OF SAN BERNARDINO By: City Manager Approved as to Form: James F. Penman, City Attorney By: ! �� A • 7 2013-54 Exhibit A Scope of Services Self-Insured Worker's Compensation Third Party Claims Administrator Services The following services are required of the Third Party Administrator: 1. Include integrated claims intake, processing and reporting; 2. Comply with all provisions of the California Labor Code related to workers' compensation; 3. Manage effectively and expeditiously all workers' compensation claims in such a manner as to minimize the City's costs; 4. Administer claims in such a manner that the City's relationship with it's employees is not adversely affected; 5. Provide state-of-the-art claims systems, including data management and reporting; 6. Provide strong medical cost-management capabilities; 7. Provide seamless coordination of all claims and managed care programs. Reports 1. Prepare the Public/Self—Insurers Annual Report and transmit to the City for signature two (2) weeks in advance of the deadline for submission to the State of California. 2. Prepare the annual report of inventory and transmit to the City for signature two (2) weeks in advance of the deadline for submission to the State of California. 3. Provide online claims access and report producing capabilities to the City. 4. Follow the banking requirements of the City, such as establishing, maintaining and reconciling an interest—bearing checking account with appropriate deposit and transfer procedures for the payment of claims or make other payment arrangements which are acceptable to the City. Maintain check registers and provide a monthly check register to the City along with a copy of all checks and vouchers. 5. Accumulate data, prepare and mail 1099 forms for all providers of services who are paid during the calendar year, as required by the Internal Revenue Code. 6. Prepare the State of California self-insurer's annual report in a timely manner and will provide a monthly check register/report of claim payments and other claim data to the City. The Third Party Administrator will also prepare the annual Cal-OSHA 300 log and any other reporting required by the Division of Workers' Compensation, Self-Insured Plan, and any other involved entity. 7. Prepare statistical information to analyze its workers' compensation program for cost containment and actuarial purposes. Other custom/non-standard reports may be required periodically and may require sorting/collation by any data entry field. 8. Year-end loss runs for open and closed claims to include each past year in consecutive order for each year as of the most recent year-end date. The program should have the ability to capture this information at any time during the year. This loss-run must include the claim number, date of loss, date reported, cause of loss, type of loss, description of loss, body part affected (this item should have the ability to be updated if other body parts are later added), department and division, reserved, paid and total amounts incurred. 8 2013-54 • Temporary Disability, Permanent Disability, and Labor Code 4850 benefits should be captured in this report. 9. Provide summaries to include individual claims, number of visits, visit intervals and dollar amounts. 10. Expense loss-runs should have the ability to separate legal expenses, investigative expenses, medical legal expenses, and other expenses. 11. Incurred claims run on monthly or quarterly basis showing new claims filed within a specific time period. 12. Open claims run showing all claims open as of a specified date. 13. Prepare monthly Claims Summary with new claims opened, stipulated, and closed. 14. Track return-to-work/modified duty savings. 15. The above—stated loss-runs should have the flexibility to include all or part of the required information. 16. Medicare Section 111 Reporting. Training 1. Participate in training of departmental staff with regard to issues associated with workers' compensation. Ancillary Services 1. To perform Medical Case Management, Medical Provider Network (MPN), Utilization Review, Bill Review, Investigation, or any other frequently used services will be based on bid criteria. 2. Checking Account The Third Party Administrator will be required to work with the City's Treasurer Department for bank reconciliation, and provide electronic data to the bank in support of our positive-pay system. 3. Medical Case Management a) The Third Party Administrator shall be responsible for evaluating cases that would benefit from referral to either an internal/affiliated MCM entity or non-affiliated MCM vendor. Any case not considered to be catastrophic in nature must be discussed with, and approved by the City prior to making a referral. b) MCM should be utilized as a mechanism to ensure appropriate medical care is rendered while achieving cost efficiencies in cases with catastrophic injuries or in cases that are stalled due to treatment issues/disputes. c) The MCM provider must have comprehensive protocols in place to ensure the goals of proper treatment and cost efficiency. 4. Medical Provider Network(MPN) Utilization of York's network if it will provide a cost savings and improve medical treatment. 9 2013-54 5. Utilization Review(UR) a) Utilization Review (UR) is required for specific procedures during the claim process. Currently, ACOEM Guidelines are the baseline standard to determine appropriate treatment protocols. b) The Third Party Administrator shall be responsible for evaluating situations that may require and/or benefit from referral to either an internal/affiliate UR activity or non- affiliated UR vendor. It is expected that experienced adjusters will make most first- line UR decisions and defer to formal UR assessment when appropriate medical expertise is needed or when required by statute. c) UR is intended to be a mechanism for ensuring that appropriate treatment is rendered to City employees while achieving cost efficiencies. 6. Bill Review a) Third Party Administrator shall be responsible for providing billing information to either an internal/affiliated Bill Review activity or non-affiliated Bill Review vendor. b) Bill Review is primarily a function intended to ensure payment of medical billings at the State-mandated Official Medical Fee Schedule (OMFS) rate. Vendor-negotiated network savings below the OMFS are also a benefit of the Bill Review process. 7. Investigations a) Quick decisions must be made regarding compensability (AOE/COE) issues. Addressing red flags in cases is also important to prevent fraudulent claim activity. b) Third Party Administrator shall discuss all investigative referrals with the City and will get approval to refer to either an internal/affiliated investigations activity or non- affiliated investigations vendor. 8. Litigation Files should reflect a clear understanding of legal issues. Legal counsel should be used effectively. Cases should be referred to attorneys listed on an approved panel. No outside referrals will be made without the City Attorney's Office's approval. Attorneys should not perform work the Claims Examiners can perform. If the Third Party Administrator recommends that a litigated case continue to be handled by a Claims Examiner without immediate assistance of an attorney, prior approval from the City Attorney's Office must be obtained. Claims staff is expected to be available for conferences and trials, some depositions and all strategy meetings with defense counsel and the City. 9. Subrogation Subrogation must be identified and pursued. This includes notice to the employee and the responsible third party, recovering costs for which a third party is liable, and coordinating the filing of actions by City's defense attorney within the statute of limitations. 10. Excess Insurance Third Party Administrator must work with the City's excess insurance carrier, reporting claims in accordance with policy requirements. Claims Examiners should be aware of the self-insured retention (SIR) level; systems should exist that identify excess insurance claims. Claims should be promptly reported. Regular updates should be provided to excess insurance carrier, and recovery should be properly documented in the claims files. 11. Job Disability Provide notice to the City, as required by law, about the employee's inability to return to work at their usual and customary occupation so that the Interactive Process can begin promptly. 10 2013-54 12. Medicare Reporting Third Party Administrator shall provide Medicare Agent Services and the required reporting per Section 111 of the MMSSEA. 11 2013-54 VENDOR SERVICES AGREEMENT BETWEEN YORK RISK SERVICES GROUP AND THE CITY OF SAN BERNARDINO This Vendor Services Agreement (the "Agreement") is entered into this 18th day of March, 2013, by and between York Risk Services Group ("Vendor") and the City of San Bernardino ("City" or "San Bernardino")(Vendor and the City may be collectively referred to as the "Parties"). WITNESSETH: A. WHEREAS, The City of San Bernardino is in need of a vendor to provide Workers' Compensation Third Party Claims Administrator Services, and B. WHEREAS, it has been determined by the Human Resources Division Manager that Vendor represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, Vendor is competent, experienced and able to perform said services; and D. WHEREAS, Vendor will provide the most advantageous and responsible services. NOW, THEREFORE, the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY VENDOR 1.1. Scope of Services. For the remuneration stipulated, Vendor shall provide the professional services described in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by this reference. If a conflict arises between the Proposal and this Vendor Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by Vendor pursuant to this Agreement shall be provided by personnel identified in the Proposal and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional vendors in similar fields and circumstances in accordance with sound professional practices. Vendor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Vendor's performance of this Agreement. Vendor further represents that no City employee will provide any services under this Agreement. 1.3. Warranty. Vendor warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety 1 2013-54 in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Vendor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, arising from or related to Vendor's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Vendor shall not engage in, nor permit their officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Vendor may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Vendor's sole cost and expense. 1.6 Conflicts of Interest. During the term of this Agreement, Vendor shall at all times maintain a duty of loyalty and a fiduciary duty as to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City. 1.7 City Business Certificate. Vendor shall obtain and maintain during the term of this Agreement, a valid City Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of Vendor to practice their profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, Vendor shall be paid an amount not to exceed $298,518.00 through March 17, 2014. This amount is inclusive of all professional fees and expenses. 2.2. Additional Services. Vendor shall not receive compensation for any services provided outside the scope of services specified in the Proposal or the Scope of Services unless the City, prior to Vendor's performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Vendor may submit invoices to City for approval. Said invoice shall be based on the total of all Vendor's services which have been completed to City's sole satisfaction. City shall pay Vendor's invoice within forty-five (45) days from the date City receives said invoice. The invoice shall describe in detail, the services performed and the 2 2013-54 associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Vendor's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 2.5 Confidentiality of Reports. Vendor shall keep confidential all reports, information and data received, prepared, or assembled pursuant to performance under this Agreement. Such information shall not be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein, or extended by amendment. 3.2 Termination. City or Vendor may terminate the services provided under Section 1.1 of this Agreement upon ninety (90) days' written notice to the other party. In the event of termination, Vendor shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by Vendor in their performance of this Agreement shall be delivered to the City within ten (10) days of delivery of termination notice to Vendor, at no cost to City. Any use of uncompleted documents without specific written authorization from Vendor shall be at City's sole risk and without liability or legal expense to Vendor. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. Vendor shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. 3 2013-54 (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. Vendor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Vendor may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. 4 2013-54 IF TO VENDOR: IF TO CITY: York Risk Services Group City of San Bernardino John Lord, Managing Vice President 300 North D Street 1950 S. Sunset Lane, Ste. 300 San Bernardino, CA 92418 San Bernardino, CA 92408 Attn: Human Resources Division Manager Phone: (909) 620-1375 Phone: (909) 384-5161 5.3. Attorneys' Fees: In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment: Vendor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Vendor's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's obligation to perform all other obligations to be performed by Vendor hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. Vendor shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to Vendor's performance under this Agreement, except when caused solely by the City's negligence. 5.7. Independent Contractor. Vendor, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of City. Vendor shall secure, at its own expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Vendor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither Vendor nor its 5 2013-54 officers, agents and employees shall be entitled to receive any benefits which employees of City are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of Vendor and its officers', agents' and employees' work for the City. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the City and Vendor. Vendor shall be deemed the agent of the City, for the sole and limited purpose of serving as the City's Workers' Compensation Third Party Administrator as set forth herein and to the extent of the authority granted herein, subject to the City of San Bernardino Charter. 5.8 Conflict of Interest Disclosure: Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. Vendor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by City. 5.9. Responsibility for Errors. Vendor shall be responsible for its work and results under this Agreement. Vendor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Vendor occurs, then Vendor shall, at no cost to City, provide all other Vendor's professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. Vendor shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Vendor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 6 2013-54 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. Dated: 3/.,U/l3 , 2013 VENDOR �j / By: // i Dated 'brig- , 2013 CITY OF SAN BERNARDINO By: City Manager Approved as to Form: James F. Penman, City Attorney By: _ !AA__ 7 2013-54 Exhibit A Scope of Services Self-Insured Worker's Compensation Third Party Claims Administrator Services The following services are required of the Third Party Administrator: 1. Include integrated claims intake, processing and reporting; 2. Comply with all provisions of the California Labor Code related to workers' compensation; 3. Manage effectively and expeditiously all workers' compensation claims in such a manner as to minimize the City's costs; 4. Administer claims in such a manner that the City's relationship with it's employees is not adversely affected; 5. Provide state-of-the-art claims systems, including data management and reporting; 6. Provide strong medical cost-management capabilities; 7. Provide seamless coordination of all claims and managed care programs. Reports 1. Prepare the Public/Self—Insurers Annual Report and transmit to the City for signature two (2) weeks in advance of the deadline for submission to the State of California. 2. Prepare the annual report of inventory and transmit to the City for signature two (2) weeks in advance of the deadline for submission to the State of California. 3. Provide online claims access and report producing capabilities to the City. 4. Follow the banking requirements of the City, such as establishing, maintaining and reconciling an interest—bearing checking account with appropriate deposit and transfer procedures for the payment of claims or make other payment arrangements which are acceptable to the City. Maintain check registers and provide a monthly check register to the City along with a copy of all checks and vouchers. 5. Accumulate data, prepare and mail 1099 forms for all providers of services who are paid during the calendar year, as required by the Internal Revenue Code. 6. Prepare the State of California self-insurer's annual report in a timely manner and will provide a monthly check register/report of claim payments and other claim data to the City. The Third Party Administrator will also prepare the annual Cal-OSHA 300 log and any other reporting required by the Division of Workers' Compensation, Self-Insured Plan, and any other involved entity. 7. Prepare statistical information to analyze its workers' compensation program for cost containment and actuarial purposes. Other custom/non-standard reports may be required periodically and may require sorting/collation by any data entry field. 8. Year-end loss runs for open and closed claims to include each past year in consecutive order for each year as of the most recent year-end date. The program should have the ability to capture this information at any time during the year. This loss-run must include the claim number, date of loss, date reported, cause of loss, type of loss, description of loss, body part affected (this item should have the ability to be updated if other body parts are later added), department and division, reserved, paid and total amounts incurred. 8 2013-54 • Temporary Disability, Permanent Disability, and Labor Code 4850 benefits should be captured in this report. 9. Provide summaries to include individual claims, number of visits, visit intervals and dollar amounts. 10. Expense loss-runs should have the ability to separate legal expenses, investigative expenses, medical legal expenses, and other expenses. 11. Incurred claims run on monthly or quarterly basis showing new claims filed within a specific time period. 12. Open claims run showing all claims open as of a specified date. 13. Prepare monthly Claims Summary with new claims opened, stipulated, and closed. 14. Track return-to-work/modified duty savings. 15. The above—stated loss-runs should have the flexibility to include all or part of the required information. 16. Medicare Section 111 Reporting. Training 1. Participate in training of departmental staff with regard to issues associated with workers' compensation. Ancillary Services 1. To perform Medical Case Management, Medical Provider Network (MPN), Utilization Review, Bill Review, Investigation, or any other frequently used services will be based on bid criteria. 2. Checking Account The Third Party Administrator will be required to work with the City's Treasurer Department for bank reconciliation, and provide electronic data to the bank in support of our positive-pay system. 3. Medical Case Management a) The Third Party Administrator shall be responsible for evaluating cases that would benefit from referral to either an internal/affiliated MCM entity or non-affiliated MCM vendor. Any case not considered to be catastrophic in nature must be discussed with, and approved by the City prior to making a referral. b) MCM should be utilized as a mechanism to ensure appropriate medical care is rendered while achieving cost efficiencies in cases with catastrophic injuries or in cases that are stalled due to treatment issues/disputes. c) The MCM provider must have comprehensive protocols in place to ensure the goals of proper treatment and cost efficiency. 4. Medical Provider Network(MPN) Utilization of York's network if it will provide a cost savings and improve medical treatment. 9 2013-54 5. Utilization Review(UR) a) Utilization Review (UR) is required for specific procedures during the claim process. Currently, ACOEM Guidelines are the baseline standard to determine appropriate treatment protocols. b) The Third Party Administrator shall be responsible for evaluating situations that may require and/or benefit from referral to either an internal/affiliate UR activity or non- affiliated UR vendor. It is expected that experienced adjusters will make most first- line UR decisions and defer to formal UR assessment when appropriate medical expertise is needed or when required by statute. c) UR is intended to be a mechanism for ensuring that appropriate treatment is rendered to City employees while achieving cost efficiencies. 6. Bill Review a) Third Party Administrator shall be responsible for providing billing information to either an internal/affiliated Bill Review activity or non-affiliated Bill Review vendor. b) Bill Review is primarily a function intended to ensure payment of medical billings at the State-mandated Official Medical Fee Schedule (OMFS) rate. Vendor-negotiated network savings below the OMFS are also a benefit of the Bill Review process. 7. Investigations a) Quick decisions must be made regarding compensability (AOE/COE) issues. Addressing red flags in cases is also important to prevent fraudulent claim activity. b) Third Party Administrator shall discuss all investigative referrals with the City and will get approval to refer to either an internal/affiliated investigations activity or non- affiliated investigations vendor. 8. Litigation Files should reflect a clear understanding of legal issues. Legal counsel should be used effectively. Cases should be referred to attorneys listed on an approved panel. No outside referrals will be made without the City Attorney's Office's approval. Attorneys should not perform work the Claims Examiners can perform. If the Third Party Administrator recommends that a litigated case continue to be handled by a Claims Examiner without immediate assistance of an attorney, prior approval from the City Attorney's Office must be obtained. Claims staff is expected to be available for conferences and trials, some depositions and all strategy meetings with defense counsel and the City. 9. Subrogation Subrogation must be identified and pursued. This includes notice to the employee and the responsible third party, recovering costs for which a third party is liable, and coordinating the filing of actions by City's defense attorney within the statute of limitations. 10. Excess Insurance Third Party Administrator must work with the City's excess insurance carrier, reporting claims in accordance with policy requirements. Claims Examiners should be aware of the self-insured retention (SIR) level; systems should exist that identify excess insurance claims. Claims should be promptly reported. Regular updates should be provided to excess insurance carrier, and recovery should be properly documented in the claims files. 11. Job Disability Provide notice to the City, as required by law, about the employee's inability to return to work at their usual and customary occupation so that the Interactive Process can begin promptly. 10 2013-54 12. Medicare Reporting Third Party Administrator shall provide Medicare Agent Services and the required reporting per Section 111 of the MMSSEA. 11