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HomeMy WebLinkAbout2013-276 1 RESOLUTION NO. 2013-276 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A VENDOR SERVICES 3 AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER TO FIRE 4 RECOVERY USA TO PROVIDE BILLING SERVICES FOR TRAFFIC CONTROL AND VEHICLE EXTRICATION SERVICES RESULTING FROM TRAFFIC 5 COLLISIONS. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 7 CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. Fire Recovery USA, is the best responsible bidder regarding billing 9 services for traffic control and vehicle extrication services (level one and two) resulting from traffic collisions, in accordance with Bid Specification RFP#F-13-22; 10 SECTION 2. The City Manager is hereby authorized and directed to execute on 11 behalf of City a Vendor Services Agreement with Fire Recovery USA, a copy of which is 12 attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though 13 set forth at length; 14 SECTION 3. Said agreement will be for billing collection services for traffic control 15 and vehicle extrication (level one and two) fees for the period of July 1, 2013 through June 30, 16 2014 with three one-year renewal options; contingent upon funds being available and 17 allocated in the budget; therefore, any action taken between July 1, 2013 and the date that the agreement is executed is hereby ratified. 18 SECTION 4. The Director of Administrative Services or his designee is authorized to 19 issue an annual purchase order to Fire Recovery USA. The annual purchase order is for one 20 year with the option of three single-year extensions. All other bids are hereby rejected; 21 SECTION 5. The Fire Recovery USA Annual Purchase Order shall incorporate by 22 reference this Resolution and Bid Specification RFP #F-13-22 and shall be paid for such 23 services a percentage not to exceed 20% of amounts collected on behalf of the City of San 24 Bernardino Fire Department. 25 SECTION 6. The authorization to execute the above referenced Agreement and 26 Annual Purchase Order is rescinded if the parties to the Agreement fail to execute it within sixty(60) days of the passage of this Resolution. 27 /// 28 . 2013-276 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A VENDOR SERVICES 2 AGREEMENT AND ISSUANCE OF AN ANNUAL PURCHASE ORDER TO FIRE RECOVERY USA TO PROVIDE BILLING SERVICES FOR TRAFFIC CONTROL 3 AND VEHICLE EXTRICATION SERVICES RESULTING FROM TRAFFIC 4 COLLISIONS. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a joint regular meeting 7 thereof, held on the 7th day of October , 2013, by the following vote,to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ x 11 JENKINS x 12 VALDIVIA x 13 SHORETT x 14 KELLEY x 15 16 JOHNSON x 17 MCCAMMACK X 18 / GeorgeaHanna, y Clerk 20 .ra y„ The foregoing resolution is hereby approved this q day of October , 2013. 21 22 wgiii 1. 23 ck J. Morris, .yor of San Bernardino 24 25 Approved as to form: JAMES F. PENMAN, 26 City Attorney 27 By: 9 -A 28 2013-276 Exhibit"A" VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND FIRE RECOVERY USA, LLC FOR BILLING SERVICES This Services Agreement ("Agreement") is made effective as of July 1, 2013 ("Effective Date"), by and between FIRE RECOVERY USA, LLC, a California limited liability company ("Company"), and The City of San Bernardino, ("City"). The Company and City are referred to herein individually as a"party" and collectively as the "parties." RECITALS WHEREAS, Company engages in the business of performing billing services ("Company Services") for United States Fire Departments in connection with the motor vehicle incidents and other emergency incidents at which the fire departments provide emergency services: and WHEREAS, City seeks the services of Company to assist with the billing for services that City provides in connection with motor vehicle incidents and other emergency incidents; and WHEREAS, Company and City desire to enter into this Agreement to memorialize their agreements regarding the Company Services to be provided to Fire Department. NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and City agree as follows: ARTICLE 1 ENGAGEMENT 1.1. Engagement: City hereby engages Company to provide the Company Services described in Article 4 herein, and City hereby accepts such engagement, all on the terms and conditions set forth herein. Company will determine the method, detail and means of performing the services detailed below. ARTICLE 2 REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of Company: Company hereby represents and warrants to City that, at all times during the term of this Agreement, Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California. 2.2. Representations and Warranties of City: City hereby represents and warrants to Company that, at all times during the term of this Agreement, City has an organized fire department established pursuant to the laws and ordinances of the state in which City is located. 2013-276 ARTICLE 3 COMPANY STATUS AND QUALIFICATIONS 3.1. Independent Contractor: Company enters into this Agreement, and will remain throughout the term of the Agreement, as an independent contractor. Company agrees that it will not become an employee, partner, agent or principal of City while this Agreement is in effect. 3.2. Payment of Income Taxes: Company is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by City to Company for services rendered under this Agreement. On request, Company will provide City with proof of timely payment. Company agrees to indemnify City for any claims, costs, losses, fees, penalties, interest, or damages suffered by City resulting from Company's failure to comply with this provision. 3.3. Use of Employees or Subcontractors: Company may, at Company's own expense, use any employees or subcontractors as Company deems necessary to perform the services required of Company by this Agreement. City may not control, direct, or supervise Company's employees or subcontractors in the performance of those services. 3.4. Qualifications: Company represents that it is qualified and has the skills necessary to perform the services under this Agreement in a competent and professional manner, without the advice or direction of City. 3.5. Ownership Interest: Company will have no ownership interest in City. 3.6. No Benefit Contributions: Company shall have no obligation under this Agreement to compensate or pay applicable taxes or provide employee benefits of any kind to any person employed or retained by City. 3.7. Attorney-in-Fact: City appoints Company as City's attorney-in-fact for the following purposes: (a) Billing and Collections: To bill and collect ("Collections") all revenue earned by and due to City, in connection with City's provision of emergency services provided/rendered at the sites of motor vehicle incidents and other emergency incidents, and to receive all Collections on City's behalf and to sue for and give satisfaction for monies due on accounts and to withdraw any claims, suits, or proceedings pertaining to or arising out of Company's or City's right to collect such amounts; and (b) Endorsement: To take possession of and endorse in City's name any notes, checks, money orders, and any other instruments received as Collections. 2 2013-276 ARTICLE 4 GENERAL RESPONSIBILITIES OF COMPANY 4.1. Minimum Amount of Service: Company agrees to devote as much time and attention to the performance of the Company Services under this Agreement as may be, in Company's sole discretion, required to accomplish the tasks described herein and to accomplish the results for which the Company is responsible under this Agreement. 4.2. Company Services: Company agrees to perform the Company Services as set forth in the "List of Company Services" attached hereto as Schedule "A" and incorporated herein by reference; including those additional services requested by City and accepted in writing by the Company during the term of this Agreement. 4.3. Non-Exclusive Relationship: Company may represent, perform services for, and contract with as many additional clients, persons, or companies as Company, in Company's sole discretion, sees fit. 4.4. Time and Place of Performing Work: Company may perform the services under this Agreement at any suitable time and location Company chooses. 4.5. Materials and Equipment: Company will supply all materials and equipment required to perform the services under this Agreement. 4.6. Workers' Compensation: Company agrees to provide workers' compensation insurance for Company and Company's employees and agents and agrees to hold harmless and indemnify City for any and all claims arising out of any injury, disability, or death of any of Company's employees or agents. 4.7. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Company without the prior written consent of City, which consent shall not be unreasonably withheld. ARTICLE 5 COMPENSATION OF COMPANY 5.1. Compensation for Company Services: All Company Services provided pursuant to this Agreement will be provided in accordance with the terms, including compensation amounts and schedule of remittance, set forth in the "List of Company Services," attached hereto as Schedule A. 5.2. The provisions of Article 11 of this Agreement will govern any dispute associated with compensation. 3 2013-276 ARTICLE 6 OBLIGATIONS OF CITY 6.1. Cooperation of City: The City agrees to comply with all reasonable requests of Company and provide access to all documents reasonably necessary to the performance of Company's duties under this Agreement. The City shall be responsible for initially insuring, and continuing to review, local and state laws in the City's jurisdiction to assure adequate legal authority for Company to engage in the Services described herein on behalf of City. 6.2. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by City without the prior written consent of Company, which consent shall not be unreasonably withheld. ARTICLE 7 CITY AUTHORIZATION 7.1. Authorization: Notwithstanding other provisions of this Agreement, Company shall obtain authorization from City prior to performing any of the following: (a) The sale conveyance, transfer, pledge exchange, assignment, hypothecation, or encumbrance of City's interest in any sums owed to City; and (b) All other limitations as stated by the terms of this Agreement. ARTICLE 8 TERMINATION OF AGREEMENT 8.1. Termination on Notice: Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving thirty days (30) written notice to the other party. Unless earlier terminated as set forth below, this Agreement shall be effective as of the date first set out above and shall continue for a period of one (1) year thereafter. This Agreement can renew with three (3) single-year renewal options; contingent upon funds being available and allocated in the budget periods. 8.2. Termination on Occurrence of Stated Events: This Agreement will terminate automatically on the occurrence of any of the following events; (a) Bankruptcy or insolvency of either party, although City's current proceeding in Bankruptcy is excepted hereto; (b) The assignment of this Agreement by either party without the consent of the other party; the parties agree that neither party will unreasonably withhold consent to such an assignment. 8.3. Termination for Default: If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate 4 2013-276 this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five days (5) after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this Agreement includes,but is not limited to, the following: (a) Company's failure to complete the services specified in the Description of Services; (b) City's material breach of any representation, warranty or agreement contained in this Agreement; (c) Company's material breach of any representation, warranty or agreement contained in this Agreement; (d) City's yearly billable run volume is at or below six runs (6). ARTICLE 9 PROPRIETARY RIGHTS 9.1. Confidential Information: Any written, printed, graphic, or electronically or magnetically recorded information furnished by City for Company's use are the sole property of City. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the City's employees, products, services, prices, operations, and subsidiaries. Company will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the City's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Company's employees, agents, and subcontractors. On termination of this Agreement, Company will return any confidential information in Company's possession to City. 9.2 Confidential Information: Any written, printed, graphic, electronically or magnetically recorded information, computer-based hardware, software, applications, software scripts, or software links furnished by Company for City's use are the sole property of Company. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the Company's employees, products, services, prices, operations, and subsidiaries. City will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the Company's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to City's employees, agents, and subcontractors. On termination of this Agreement, City will return any confidential information in City's possession to Company. 5 2013-276 ARTICLE 10 INDEMNIFICATION 10.1. Indemnification: To the extent permitted by applicable law, the Company will indemnify and hold the City harmless from and against any and all loss, damage, liability, claims and/or injury resulting from all actions performed by the Company, or its agents on the Company's behalf, in connection with this Agreement. However, this indemnification shall not apply with respect to any legal cause, action or consequential liability or losses as a result from inaccurate or incomplete information or unfounded or unreasonable submissions furnished to the Company by the City nor shall it apply to any act, omission or negligence of the City. ARTICLE 11 GENERAL PROVISIONS 11.1. Governing Law: This Agreement shall be governed in all respects by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction that would cause the application of the laws of any jurisdiction other that the State of California). 11.2. Entire Agreement: This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understanding of the parties. 11.3. Successors and Assigns: Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. No party may assign any of its rights or obligations hereunder without the express written consent of the other party hereto, which consent may not be unreasonably withheld; provided, however, any party may assign any and all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder; provided, however, that such party remains liable for full and total performance of its obligations hereunder. 6 2013-276 • 11.4. Notices: Any notices authorized to be given hereunder shall be in writing and deemed given, if delivered personally or by overnight courier, on the date of delivery, if a Business Day, or if not a business day, on the first Business Day following delivery, or if mailed, three days after mailing by registered or certified mail, return receipt requested, and in each case, addressed, as follows: If to the Company to: with a copy to: Fire Recovery USA, LLC The Watkins Firm, APC 2271 Lava Ridge Court, Suite 120 4275 Executive Square, Suite 1020 Roseville CA 95661 La Jolla, CA 92037 Attention: Craig Nagler Attention: Chris Popov, Esq. If to City to: City of San Bernardino 300 N. D St. San Bernardino, CA 92418 Attention: Fire Chief Or, if delivered by telecopy, on a Business Day before 4:00 PM local time of addressee, on transmission confirmed electronically, or if at any other time or day on the first Business Day succeeding transmission confirmed electronically, to the facsimile numbers provided above, or to such other address or telecopy number as any party shall specify to the other, pursuant to the foregoing notice provisions. When used in this Agreement, the term"Business Day" shall mean a day other than a Saturday, Sunday or a Federal Holiday. 11.5. Waiver; Amendments: This Agreement, and the Transaction Documents, (i) set forth the entire agreement of the parties respecting the subject matter hereof, (ii) supersede any prior and contemporaneous understandings, agreements, or representations by or among the parties, written or oral, to the extent they related in any way to the subject matter hereof, and (iii) may not be amended orally, and no right or obligation of any party may be altered, except as expressly set forth in a writing signed by such party. 11.6. Counterparts: This Agreement may be signed in several counterparts. 11.7. Expenses: Each party shall bear its own expenses incurred with respect to the preparation of this Agreement and the consummation of the transactions contemplated hereby. Signatures on following page: 7 2013-276 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. COMPANY: FIRE RECOVERY USA,LLC. a California limited liability company By: Name: M. Craig Nagler Title: CEO CITY OF SAN BERNARDINO: By: Name: Allen Parker Title: City Manager Approved as to Form: James F. Penman, City Attorney By: I •4114. 8 2013-276 SCHEDULE A LIST OF COMPANY SERVICES 1. Fire Recovery USA agrees to bill the responsible party on the City's behalf for services provided/rendered during motor vehicle incidents and other emergency incidents. The billing rates (mitigation fees) are listed as EXHIBIT A, but may change over time. Fire Recovery USA will provide notice to City of changes in billing rates. 2. Fire Recovery USA will provide, as a normal matter of business; entry of claims and submission to the responsible party, collections of monies deemed due to the City, payments of the agreed upon percentage of said monies to City, and reporting of progress. 3. Fire Recovery agrees to bill to the best of its ability all claims provided to Fire Recovery USA by the City. 4. Fire Recovery USA will not begin litigation against a person, entity, or insurance carrier without prior written approval by the City Attorney. 5. Fire Recovery USA agrees to reimburse City a portion of the monies collected at a rate of 80 percent of the total monies collected on the City's claims. 6. Fire Recovery USA agrees to pay these monies collected to the City on a monthly or quarterly basis (at the option of the City), within seven (7) working days after the close and accounting of the monthly (or quarterly) billing cycle. 7. Fire Recovery USA agrees to make available reports via a password protected website to the City which detail billable claims outstanding (which are claims submitted, but not yet completed) and claims completed in the prior billing cycle. 8. Fire Recovery USA will not be responsible for, nor accept any liability for, any erroneous, invalid, or illegal procedure codes or claims submitted to Fire Recovery USA by the City on the Run Sheets. 1 2013-276 EXHIBIT A MITIGATION RATES BASED ON PER HOUR The mitigation rates are based on Resolution 2013-1, as passed by the City of San Bernardino. The following fee are hereby established for response services at traffic incidents that involves traffic control or vehicle extrication on public right of ways, streets, and highways within the jurisdiction of the City of San Bernardino by billing the at-fault driver and/or the owner of the vehicle driven by the at-fault driver, and their respective insurance companies: A. Traffic Control Fee: up to $373 per hour per incident B. Vehicle Extrication Fee (Level 1): up to $866 per hour per incident C. Vehicle Extrication Fee (Level 2): up to $1,239 per hour per incident The fees established by this section are per hour and any additional response time for the incident will be billed at 15 minute increments at a rate of$93.25 per 15 minutes for Traffic Control Fee, $216.50 per 15 minutes for Vehicle Extrication Fee (Level 1), and $309.75 per 15 minutes for Vehicle Extrication Fee (Level 2). LATE FEES If the invoice is not paid within 90 days, a Late Charge of 10% of the invoice, as well as 1.5% per month, as well as the actual cost of the collections, will be accessed to the responsible party. 2 . 2013-276 Exhibit "A" VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND FIRE RECOVERY USA,LLC FOR BILLING SERVICES This Services Agreement ("Agreement") is made effective as of July 1, 2013 ("Effective Date"), by and between FIRE RECOVERY USA, LLC, a California limited liability company ("Company"), and The City of San Bernardino, ("City"). The Company and City are referred to herein individually as a"party" and collectively as the "parties." RECITALS WHEREAS, Company engages in the business of performing billing services ("Company Services") for United States Fire Departments in connection with the motor vehicle incidents and other emergency incidents at which the fire departments provide emergency services: and WHEREAS, City seeks the services of Company to assist with the billing for services that City provides in connection with motor vehicle incidents and other emergency incidents; and WHEREAS, Company and City desire to enter into this Agreement to memorialize their agreements regarding the Company Services to be provided to Fire Department. NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and City agree as follows: ARTICLE 1 ENGAGEMENT 1.1. Engagement: City hereby engages Company to provide the Company Services described in Article 4 herein, and City hereby accepts such engagement, all on the terms and conditions set forth herein. Company will determine the method, detail and means of performing the services detailed below. ARTICLE 2 REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of Company: Company hereby represents and warrants to City that, at all times during the term of this Agreement, Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California. 2.2. Representations and Warranties of City: City hereby represents and warrants to Company that, at all times during the term of this Agreement, City has an organized fire department established pursuant to the laws and ordinances of the state in which City is located. 2013-276 ARTICLE 3 COMPANY STATUS AND QUALIFICATIONS 3.1. Independent Contractor: Company enters into this Agreement, and will remain throughout the term of the Agreement, as an independent contractor. Company agrees that it will not become an employee, partner, agent or principal of City while this Agreement is in effect. 3.2. Payment of Income Taxes: Company is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by City to Company for services rendered under this Agreement. On request, Company will provide City with proof of timely payment. Company agrees to indemnify City for any claims, costs, losses, fees, penalties, interest, or damages suffered by City resulting from Company's failure to comply with this provision. 3.3. Use of Employees or Subcontractors: Company may, at Company's own expense, use any employees or subcontractors as Company deems necessary to perform the services required of Company by this Agreement. City may not control, direct, or supervise Company's employees or subcontractors in the performance of those services. 3.4. Qualifications: Company represents that it is qualified and has the skills necessary to perform the services under this Agreement in a competent and professional manner, without the advice or direction of City. 3.5. Ownership Interest: Company will have no ownership interest in City. 3.6. No Benefit Contributions: Company shall have no obligation under this Agreement to compensate or pay applicable taxes or provide employee benefits of any kind to any person employed or retained by City. 3.7. Attorney-in-Fact: City appoints Company as City's attorney-in-fact for the following purposes: (a) Billing and Collections: To bill and collect ("Collections") all revenue earned by and due to City, in connection with City's provision of emergency services provided/rendered at the sites of motor vehicle incidents and other emergency incidents, and to receive all Collections on City's behalf and to sue for and give satisfaction for monies due on accounts and to withdraw any claims, suits, or proceedings pertaining to or arising out of Company's or City's right to collect such amounts; and (b) Endorsement: To take possession of and endorse in City's name any notes, checks, money orders, and any other instruments received as Collections. 2 2013-276 ARTICLE 4 GENERAL RESPONSIBILITIES OF COMPANY 4.1. Minimum Amount of Service: Company agrees to devote as much time and attention to the performance of the Company Services under this Agreement as may be, in Company's sole discretion, required to accomplish the tasks described herein and to accomplish the results for which the Company is responsible under this Agreement. 4.2. Company Services: Company agrees to perform the Company Services as set forth in the "List of Company Services" attached hereto as Schedule "A" and incorporated herein by reference; including those additional services requested by City and accepted in writing by the Company during the term of this Agreement. 4.3. Non-Exclusive Relationship: Company may represent, perform services for, and contract with as many additional clients, persons, or companies as Company, in Company's sole discretion, sees fit. 4.4. Time and Place of Performing Work: Company may perform the services under this Agreement at any suitable time and location Company chooses. 4.5. Materials and Equipment: Company will supply all materials and equipment required to perform the services under this Agreement. 4.6. Workers' Compensation: Company agrees to provide workers' compensation insurance for Company and Company's employees and agents and agrees to hold harmless and indemnify City for any and all claims arising out of any injury, disability, or death of any of Company's employees or agents. 4.7. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Company without the prior written consent of City, which consent shall not be unreasonably withheld. ARTICLE 5 COMPENSATION OF COMPANY 5.1. Compensation for Company Services: All Company Services provided pursuant to this Agreement will be provided in accordance with the terms, including compensation amounts and schedule of remittance, set forth in the "List of Company Services," attached hereto as Schedule A. 5.2. The provisions of Article 11 of this Agreement will govern any dispute associated with compensation. 3 2013-276 ARTICLE 6 OBLIGATIONS OF CITY 6.1. Cooperation of City: The City agrees to comply with all reasonable requests of Company and provide access to all documents reasonably necessary to the performance of Company's duties under this Agreement. The City shall be responsible for initially insuring, and continuing to review, local and state laws in the City's jurisdiction to assure adequate legal authority for Company to engage in the Services described herein on behalf of City. 6.2. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by City without the prior written consent of Company, which consent shall not be unreasonably withheld. ARTICLE 7 CITY AUTHORIZATION 7.1. Authorization: Notwithstanding other provisions of this Agreement, Company shall obtain authorization from City prior to performing any of the following: (a) The sale conveyance, transfer, pledge exchange, assignment, hypothecation, or encumbrance of City's interest in any sums owed to City; and (b) All other limitations as stated by the terms of this Agreement. ARTICLE 8 TERMINATION OF AGREEMENT 8.1. Termination on Notice: Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving thirty days (30) written notice to the other party. Unless earlier terminated as set forth below, this Agreement shall be effective as of the date first set out above and shall continue for a period of one (1) year thereafter. This Agreement can renew with three (3) single-year renewal options; contingent upon funds being available and allocated in the budget periods. 8.2. Termination on Occurrence of Stated Events: This Agreement will terminate automatically on the occurrence of any of the following events; (a) Bankruptcy or insolvency of either party, although City's current proceeding in Bankruptcy is excepted hereto; (b) The assignment of this Agreement by either party without the consent of the other party; the parties agree that neither party will unreasonably withhold consent to such an assignment. 8.3. Termination for Default: If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate 4 2013-276 this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five days (5) after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following: (a) Company's failure to complete the services specified in the Description of Services; (b) City's material breach of any representation, warranty or agreement contained in this Agreement; (c) Company's material breach of any representation, warranty or agreement contained in this Agreement; (d) City's yearly billable run volume is at or below six runs (6). ARTICLE 9 PROPRIETARY RIGHTS 9.1. Confidential Information: Any written, printed, graphic, or electronically or magnetically recorded information furnished by City for Company's use are the sole property of City. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the City's employees, products, services, prices, operations, and subsidiaries. Company will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the City's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Company's employees, agents, and subcontractors. On termination of this Agreement, Company will return any confidential information in Company's possession to City. 9.2 Confidential Information: Any written, printed, graphic, electronically or magnetically recorded information, computer-based hardware, software, applications, software scripts, or software links furnished by Company for City's use are the sole property of Company. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the Company's employees,products, services,prices, operations, and subsidiaries. City will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the Company's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to City's employees, agents, and subcontractors. On termination of this Agreement, City will return any confidential information in City's possession to Company. 5 2013-276 ARTICLE 10 INDEMNIFICATION 10.1. Indemnification: To the extent permitted by applicable law, the Company will indemnify and hold the City harmless from and against any and all loss, damage, liability, claims and/or injury resulting from all actions performed by the Company, or its agents on the Company's behalf, in connection with this Agreement. However, this indemnification shall not apply with respect to any legal cause, action or consequential liability or losses as a result from inaccurate or incomplete information or unfounded or unreasonable submissions furnished to the Company by the City nor shall it apply to any act, omission or negligence of the City. ARTICLE 11 GENERAL PROVISIONS 11.1. Governing Law: This Agreement shall be governed in all respects by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction that would cause the application of the laws of any jurisdiction other that the State of California). 11.2. Entire Agreement: This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understanding of the parties. 11.3. Successors and Assigns: Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. No party may assign any of its rights or obligations hereunder without the express written consent of the other party hereto, which consent may not be unreasonably withheld; provided, however, any party may assign any and all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder; provided, however, that such party remains liable for full and total performance of its obligations hereunder. 6 2013-276 •• 11.4. Notices: Any notices authorized to be given hereunder shall be in writing and deemed given, if delivered personally or by overnight courier, on the date of delivery, if a Business Day, or if not a business day, on the first Business Day following delivery, or if mailed, three days after mailing by registered or certified mail, return receipt requested, and in each case, addressed, as follows: If to the Company to: with a copy to: Fire Recovery USA, LLC The Watkins Firm, APC 2271 Lava Ridge Court, Suite 120 4275 Executive Square, Suite 1020 Roseville CA 95661 La Jolla, CA 92037 Attention: Craig Nagler Attention: Chris Popov, Esq. If to City to: City of San Bernardino 300 N. D St. San Bernardino, CA 92418 Attention: Fire Chief Or, if delivered by telecopy, on a Business Day before 4:00 PM local time of addressee, on transmission confirmed electronically, or if at any other time or day on the first Business Day succeeding transmission confirmed electronically, to the facsimile numbers provided above, or to such other address or telecopy number as any party shall specify to the other, pursuant to the foregoing notice provisions. When used in this Agreement,the term"Business Day" shall mean a day other than a Saturday, Sunday or a Federal Holiday. 11.5. Waiver; Amendments: This Agreement, and the Transaction Documents, (i) set forth the entire agreement of the parties respecting the subject matter hereof, (ii) supersede any prior and contemporaneous understandings, agreements, or representations by or among the parties, written or oral, to the extent they related in any way to the subject matter hereof, and(iii) may not be amended orally, and no right or obligation of any party may be altered, except as expressly set forth in a writing signed by such party. 11.6. Counterparts: This Agreement may be signed in several counterparts. 11.7. Expenses: Each party shall bear its own expenses incurred with respect to the preparation of this Agreement and the consummation of the transactions contemplated hereby. Signatures on following page: 7 2013-276 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. COMPANY: FIRE RECOVERY USA,LLC. a California limited liability company B _ 3 Adralar1W. * + - Name: M. Craig Nagler Title: CEO CITY OF SAN BERNARDINO: By: Name: Allen Parker Title: City Manager Approved as to Form: James F. Penman, City Attorney By: if •�fi. Received OCT 2013 8 San Bernardino City Fire Department • 2013-276 SCHEDULE A LIST OF COMPANY SERVICES 1. Fire Recovery USA agrees to bill the responsible party on the City's behalf for services provided/rendered during motor vehicle incidents and other emergency incidents. The billing rates (mitigation fees) are listed as EXHIBIT A, but may change over time. Fire Recovery USA will provide notice to City of changes in billing rates. 2. Fire Recovery USA will provide, as a normal matter of business; entry of claims and submission to the responsible party, collections of monies deemed due to the City, payments of the agreed upon percentage of said monies to City, and reporting of progress. 3. Fire Recovery agrees to bill to the best of its ability all claims provided to Fire Recovery USA by the City. 4. Fire Recovery USA will not begin litigation against a person, entity, or insurance carrier without prior written approval by the City Attorney. 5. Fire Recovery USA agrees to reimburse City a portion of the monies collected at a rate of 80 percent of the total monies collected on the City's claims. 6. Fire Recovery USA agrees to pay these monies collected to the City on a monthly or quarterly basis (at the option of the City), within seven (7) working days after the close and accounting of the monthly (or quarterly) billing cycle. 7. Fire Recovery USA agrees to make available reports via a password protected website to the City which detail billable claims outstanding (which are claims submitted, but not yet completed) and claims completed in the prior billing cycle. 8. Fire Recovery USA will not be responsible for, nor accept any liability for, any erroneous, invalid, or illegal procedure codes or claims submitted to Fire Recovery USA by the City on the Run Sheets. 1 2013-276 • EXHIBIT A MITIGATION RATES BASED ON PER HOUR The mitigation rates are based on Resolution 2013-1, as passed by the City of San Bernardino. The following fee are hereby established for response services at traffic incidents that involves traffic control or vehicle extrication on public right of ways, streets, and highways within the jurisdiction of the City of San Bernardino by billing the at-fault driver and/or the owner of the vehicle driven by the at-fault driver, and their respective insurance companies: A. Traffic Control Fee: up to $373 per hour per incident B. Vehicle Extrication Fee (Level 1): up to $866 per hour per incident C. Vehicle Extrication Fee (Level 2): up to $1,239 per hour per incident The fees established by this section are per hour and any additional response time for the incident will be billed at 15 minute increments at a rate of$93.25 per 15 minutes for Traffic Control Fee, $216.50 per 15 minutes for Vehicle Extrication Fee (Level 1), and $309.75 per 15 minutes for Vehicle Extrication Fee (Level 2). LATE FEES If the invoice is not paid within 90 days, a Late Charge of 10% of the invoice, as well as 1.5% per month, as well as the actual cost of the collections, will be accessed to the responsible party. 2