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HomeMy WebLinkAbout2013-331 RESOLUTION NO. 2013-331 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES 3 AGREEMENT BETWEEN CARL WARREN & COMPANY AND THE CITY OF SAN BERNARDINO FOR GENERAL LIABILITY CLAIMS ADMINISTRATION SERVICES. 4 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL 5 OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. Pursuant to San Bernardino Municipal Code section 3.04.010(B)(3), the 7 City Manager of the City of San Bernardino is hereby authorized and directed to execute on 8 behalf of said City a Consultant Service Agreement between Carl Warren & Company and 9 the City of San Bernardino for General Liability Claims Administration Services, a copy of 10 which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully 11 as though set forth at length. 12 SECTION 2. The Director of Administrative Services is hereby authorized to issue a 13 14 Purchase Order to Carl Warren & Company for General Liability Claims Administration 15 Services, for a total annual amount not to exceed $100,700.00 with three one year 16 extensions. 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 2013-331 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN CARL WARREN & COMPANY AND THE CITY OF SAN 4 BERNARDINO FOR GENERAL LIABILITY CLAIMS ADMINISTRATION SERVICES. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a joint regular meeting 7 thereof, held on the 2,,4 day of December , 2013, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 10 MARQUEZ x 11 JENKINS X 12 VALDIVIA x 13 SHORETT --x- 14 VACANT 15 JOHNSON x 16 MULVIHILL x 17 18 -_��- / George., Hanna, !ity Clerk 19 14, 20 The foregoing Resolution is hereby approved this day of np- mhar 2013. 21 22 J. Morris, CI ' • San Bernardino 23 24 Approved as to form: Gary D. Saenz 25 City Attorney 26 By. , A J • 27 28 2013-331 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CARL WARREN & COMPANY This Consultant Service Agreement (this "Agreement") is made and entered into this 2nd day of December 2013 ("Effective Date") by and between the City of San Bernardino, a Municipal Corporation and Charter City, (hereinafter referred to as the "City") and Carl Warren & Company, (hereinafter referred to as the "Consultant") (sometimes jointly referred to herein as the "Parties"). WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide general liability claims administrative services , and B. WHEREAS, it has been determined by the Human Resources Division Manager that Consultant 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, CONSULTANT is competent, experienced and able to perform said responsible services; and D. WHEREAS, CONSULTANT will provide the most advantageous and responsible services; NOW THEREFORE, in consideration of mutual covenants contained in this Agreement and the mutual benefits to be derived there from, the parties agree as follows: 1. TERM. This agreement shall be in full force and effect from the effective date through June 30, 2015, with three one year extensions, exercisable at the City's sole discretion. 2. CONSULTANT RESPONSIBILITIES: Consultant is responsible for performing the work as identified in Exhibit A, contained herein. The Consultant commits the necessary principal personnel to the performance of such services for the duration of this Agreement. 3. CITY RESPONSIBILITIES The City shall provide, in a reasonable timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance hereunder. Such information shall not be made 1 2013-331 available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 5. COMPENSATION The compensation for general liability claims administrative services for the City of San Bernardino will not exceed the annual amount of $100,700.00. This fee is inclusive of all professional fees and expenses. 6. NONDISCRIMINATION; MONITORING AND REPORTING WORK PERFORMANCE. In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its 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, genetic information, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. CONFLICT OF INTEREST The Consultant shall maintain a code or standard of conduct. The Consultant shall neither solicit nor accept gratuities, favors, or anything of monetary value for work completed under the Scope of Services. To the extent permissible by state laws, rules and regulations, the standards adopted by the Consultant shall provide for penalties, sanctions, or other disciplinary actions to be applied for violations of such standards by the Consultant. 8. INDEPENDENT CONTRACTOR The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an employee of the City. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, between the City and the Consultant. The City is interested only in the results obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, worker's compensation or other insurance. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees further to provide the City with proof of payment upon reasonable demand. The Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 2 2013-331 9. RECORDS The Consultant shall keep full and accurate records of all consulting work performed under this Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed hereunder, or in anticipation of the consulting work to be performed in regard to this Agreement, shall at all times be and remain the sole property of the City and the Consultant shall turn over to the City all copies of the Work Records within seven (7) calendar days after a written request by City. 10. BUSINESS LICENSE/TIN Consultant shall obtain a San Bernardino business license and provide the City with evidence that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. Consultant shall obtain a state and federal taxpayer identification number and shall provide evidence to the City that this number has been obtained. 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. The Consultant at any time has the right: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those of the City, limited only by the confidential information described in Section 4, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. The City acknowledges that the provisions of this Section 12 are reasonable in light of the legitimate business needs of the City. 12. SUCCESSOR AND ASSIGNMENT. The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in this Agreement without the prior written consent of the City. 13. INDEMNIFICATION. The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury or property damage arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. The Consultant agrees to obtain a policy of insurance in the minimum amount of $1,000,000.00 (one million dollars) to cover 3 2013-331 any and all claims. The Consultant shall provide the City with evidence that the necessary liability insurance has been obtained, and that the Agency has been named as an additional insured on said policy by the Effective Date hereof. 14. LIMITATION OF LIABILITY Any claim by the City against Consultant relating to this Agreement must be made in writing and presented to Consultant within one (1) year after the date on which Consultant completes performance of the services specified in this Agreement or (1) year from the date the City discovers or reasonably should discover the existence of the claim, whichever is greater. 15. MODIFICATION. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both parties. 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWSNENUE The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 18. SEVERABILILTY In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other provision contained herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. 19. INTERPRETATION No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be construed as if it were drafted by both parties hereto. 4 2013-331 20. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 21. NOTICE Notices herein shall be presented in person or by certified or registered United States mail, as follows: To the Consultant: Carl Warren & Company Richard McAbee PO Box 1820 San Bernardino, CA 92402 To the City: City of San Bernardino Administrative Services Department Human Resources/Risk Division 300 North D Street San Bernardino, CA 92418 Attn: Helen Tran, Human Resources Division Manager Phone: (909) 384-5161 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 22. ENTIRE AGREEMENT This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. 5 2013-331 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CARL WARREN & COMPANY IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO Dated: By: Allen Parker, City Manager CONSULTANT Dated: By: Richard McAbee, AVP/Director of Business Development Approved as to Form: By: - Inidt_C ‘ l Eibilaenz, City Attorney 6 2013-331 Exhibit A Scope of Work Administer the City's Self-insurance Retention (SIR) Program and act as the City's representative in connection with the investigation, adjustment, processing, supervision and resolution of general liability, motor vehicle liability, and property damage claims asserted by third parties against the City, or against parties for whom the City is alleged to be legally responsible. Provide professional and technical support to perform risk management services to include, but not limited to, the below areas: a) General Liability Claims Management b) Automobile Liability Claims Management c) Property Claims Management d) Risk Management Control and Safety Programs e) SIR Claims Administration f) Subrogation Recovery Services g) Ongoing Risk Management Administrative Support Investigative Services- Contractor will provide complete investigative services including, but not limited to: a) Receipt and examination of all reports of accidents, incidents, or claims that are or may be the subject of claims. b) Investigate accidents, incidents, or claims where the examination warrants such investigation to include on-site investigation, photographs, witness interviews, determination of losses and other such investigative services necessary to determine any City losses, but not to include extraordinary investigative services outside the expertise of the vendor. c) Maintain service on a 24-hour, 7-days-per-week basis, to receive telephone reports of any incident or accident which may be the subject of a liability claim, and provide immediate investigative services to the extent necessary to provide a complete investigation. d) Undertake items of investigation requiring special handling for the City at the direction of the City Attorney or authorized representative. Adjustment Services- Contractor will provide complete adjustment services on each accident or incident which is or may be the subject of a claim. Such services shall include: a) Maintain a claim file on each potential or actual claim reported. b) Process any such claim or potential claim for settlement in accordance with instructions and policies of the City. c) Notify the City's primary and excess carriers of all claims which exceed or may exceed the City's self-insurance retention. d) Act as liaison between the insurance carriers and the City on matters affecting the adjustment of such claims. 7 2013-331 e) Notify the City when it is entitled to reimbursements for loss in excess of retention. f) Obtain settlement agreements and releases upon settlement of claims or potential claims not in litigation. Administrative Services- Contractor will provide the following administrative services: a) Assist in all risk-related training at the request of the City. b) Assist the City in preparing accident kits for City vehicles. c) Assign a principle adjuster, satisfactory to the City, to provide liaison between the City and the vendor. d) Provide tabulated monthly statistical and status reports of all reported claims. Monthly reports shall indicate the status of each open claim, the outstanding reserves for each claim, and details of all claim payments during the month. The status report shall be delivered to the City Attorney and the Human Resources Division Manager within fifteen (15) days of the close of each calendar month. e) Periodically review and adjust reserves on all open claims. f) Assist the City Attorney, as requested. g) Prepare monthly claims reviews and status reports for liability review. h) Provide loss information for the City's annual excess liability application. i) Inform the City of problem areas or trends, both potential and perceived, and provide recommendations and/or solutions to address problem areas or trends. j) Assist in the development of policies and procedures relating to the Liability and Property Claims Program. Provide copies of file correspondence and documentation as requested. k) As needed, attend meetings, conferences, court appearances, and scene investigations at the request of the City. Legal Support Services- Contractor will provide the following legal support services on each claim in which a third-party claimant has commenced or threatened to commence litigation: a) Upon notification by the City Attorney that litigation has been filed on an open claim, meet with special counsel and provide all information and files concerning the claim. b) Assist the City Attorney assigned to litigation of open claims and provide such investigative services as directed during pre-trial and trial stages. c) Assist in answering any interrogations or requests for admissions filed by third parties. d) At the request of the City Attorney, attend mandatory settlement conferences. 8 2013-331 e) At the request of the City Attorney, appear on behalf of the City in small claim actions filed against the City on open claims. f) As requested by the City Attorney, discuss and review investigation issues, discovery, and case strategy with special counsel. g) As requested, review case evaluations, correspondence and status reports forwarded by special counsel. When requested, provide support to special counsel on each case to obtain the most economical and best result for the City. 9 2013-331 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CARL WARREN & COMPANY This Consultant Service Agreement (this "Agreement") is made and entered into this 2nd day of December 2013 ("Effective Date") by and between the City of San Bernardino, a Municipal Corporation and Charter City, (hereinafter referred to as the "City") and Carl Warren & Company, (hereinafter referred to as the "Consultant") (sometimes jointly referred to herein as the "Parties"). WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide general liability claims administrative services , and B. WHEREAS, it has been determined by the Human Resources Division Manager that Consultant 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, CONSULTANT is competent, experienced and able to perform said responsible services; and D. WHEREAS, CONSULTANT will provide the most advantageous and responsible services; NOW THEREFORE, in consideration of mutual covenants contained in this Agreement and the mutual benefits to be derived there from, the parties agree as follows: 1. TERM. This agreement shall be in full force and effect from the effective date through June 30, 2015, with three one year extensions, exercisable at the City's sole discretion. 2. CONSULTANT RESPONSIBILITIES: Consultant is responsible for performing the work as identified in Exhibit A, contained herein. The Consultant commits the necessary principal personnel to the performance of such services for the duration of this Agreement. 3. CITY RESPONSIBILITIES The City shall provide, in a reasonable timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance hereunder. Such information shall not be made 2013-331 available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 5. COMPENSATION The compensation for general liability claims administrative services for the City of San Bernardino will not exceed the annual amount of $100,700.00. This fee is inclusive of all professional fees and expenses. 6. NONDISCRIMINATION; MONITORING AND REPORTING WORK PERFORMANCE. In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its 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, genetic information, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. CONFLICT OF INTEREST The Consultant shall maintain a code or standard of conduct. The Consultant shall neither solicit nor accept gratuities, favors, or anything of monetary value for work completed under the Scope of Services. To the extent permissible by state laws, rules and regulations, the standards adopted by the Consultant shall provide for penalties, sanctions, or other disciplinary actions to be applied for violations of such standards by the Consultant. 8. INDEPENDENT CONTRACTOR The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an employee of the City. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, between the City and the Consultant. The City is interested only in the results obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, worker's compensation or other insurance. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees further to provide the City with proof of payment upon reasonable demand. The Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 2 2013-331 9. RECORDS The Consultant shall keep full and accurate records of all consulting work performed under this Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed hereunder, or in anticipation of the consulting work to be performed in regard to this Agreement, shall at all times be and remain the sole property of the City and the Consultant shall turn over to the City all copies of the Work Records within seven (7) calendar days after a written request by City. 10. BUSINESS LICENSE/TIN Consultant shall obtain a San Bernardino business license and provide the City with evidence that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. Consultant shall obtain a state and federal taxpayer identification number and shall provide evidence to the City that this number has been obtained. 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. The Consultant at any time has the right: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those of the City, limited only by the confidential information described in Section 4, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. The City acknowledges that the provisions of this Section 12 are reasonable in light of the legitimate business needs of the City. 12. SUCCESSOR AND ASSIGNMENT. The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in this Agreement without the prior written consent of the City. 13. INDEMNIFICATION. The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury or property damage arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. The Consultant agrees to obtain a policy of insurance in the minimum amount of $1,000,000.00 (one million dollars) to cover 3 2013-331 any and all claims. The Consultant shall provide the City with evidence that the necessary liability insurance has been obtained, and that the Agency has been named as an additional insured on said policy by the Effective Date hereof. 14. LIMITATION OF LIABILITY Any claim by the City against Consultant relating to this Agreement must be made in writing and presented to Consultant within one (1) year after the date on which Consultant completes performance of the services specified in this Agreement or (1) year from the date the City discovers or reasonably should discover the existence of the claim, whichever is greater. 15. MODIFICATION. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both parties. 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWSNENUE The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 18. SEVERABILILTY In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other provision contained herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. 19. INTERPRETATION No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be construed as if it were drafted by both parties hereto. 4 2013-331 20. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 21. NOTICE Notices herein shall be presented in person or by certified or registered United States mail, as follows: To the Consultant: Carl Warren & Company Richard McAbee PO Box 1820 San Bernardino, CA 92402 To the City: City of San Bernardino Administrative Services Department Human Resources/Risk Division 300 North D Street San Bernardino, CA 92418 Attn: Helen Tran, Human Resources Division Manager Phone: (909) 384-5161 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 22. ENTIRE AGREEMENT This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. 5 2013-331 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND CARL WARREN & COMPANY IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO Dated: By: Oziel ,44.-. Parker, City Manager CONSULTANT _ Dated: Richard McAbee, AVP/Director of Business Development Approved as to Form: By: JUL ary aenz, City Attorney 6 2013-331 Exhibit A Scope of Work Administer the City's Self-insurance Retention (SIR) Program and act as the City's representative in connection with the investigation, adjustment, processing, supervision and resolution of general liability, motor vehicle liability, and property damage claims asserted by third parties against the City, or against parties for whom the City is alleged to be legally responsible. Provide professional and technical support to perform risk management services to include, but not limited to, the below areas: a) General Liability Claims Management b) Automobile Liability Claims Management c) Property Claims Management d) Risk Management Control and Safety Programs e) SIR Claims Administration f) Subrogation Recovery Services g) Ongoing Risk Management Administrative Support Investigative Services- Contractor will provide complete investigative services including, but not limited to: a) Receipt and examination of all reports of accidents, incidents, or claims that are or may be the subject of claims. b) Investigate accidents, incidents, or claims where the examination warrants such investigation to include on-site investigation, photographs, witness interviews, determination of losses and other such investigative services necessary to determine any City losses, but not to include extraordinary investigative services outside the expertise of the vendor. c) Maintain service on a 24-hour, 7-days-per-week basis, to receive telephone reports of any incident or accident which may be the subject of a liability claim, and provide immediate investigative services to the extent necessary to provide a complete investigation. d) Undertake items of investigation requiring special handling for the City at the direction of the City Attorney or authorized representative. Adjustment Services- Contractor will provide complete adjustment services on each accident or incident which is or may be the subject of a claim. Such services shall include: a) Maintain a claim file on each potential or actual claim reported. b) Process any such claim or potential claim for settlement in accordance with instructions and policies of the City. c) Notify the City's primary and excess carriers of all claims which exceed or may exceed the City's self-insurance retention. d) Act as liaison between the insurance carriers and the City on matters affecting the adjustment of such claims. 7 2013-331 • e) Notify the City when it is entitled to reimbursements for loss in excess of retention. f) Obtain settlement agreements and releases upon settlement of claims or potential claims not in litigation. Administrative Services- Contractor will provide the following administrative services: a) Assist in all risk-related training at the request of the City. b) Assist the City in preparing accident kits for City vehicles. c) Assign a principle adjuster, satisfactory to the City, to provide liaison between the City and the vendor. d) Provide tabulated monthly statistical and status reports of all reported claims. Monthly reports shall indicate the status of each open claim, the outstanding reserves for each claim, and details of all claim payments during the month. The status report shall be delivered to the City Attorney and the Human Resources Division Manager within fifteen (15) days of the close of each calendar month. e) Periodically review and adjust reserves on all open claims. f) Assist the City Attorney, as requested. g) Prepare monthly claims reviews and status reports for liability review. h) Provide loss information for the City's annual excess liability application. i) Inform the City of problem areas or trends, both potential and perceived, and provide recommendations and/or solutions to address problem areas or trends. j) Assist in the development of policies and procedures relating to the Liability and Property Claims Program. Provide copies of file correspondence and documentation as requested. k) As needed, attend meetings, conferences, court appearances, and scene investigations at the request of the City. Legal Support Services- Contractor will provide the following legal support services on each claim in which a third-party claimant has commenced or threatened to commence litigation: a) Upon notification by the City Attorney that litigation has been filed on an open claim, meet with special counsel and provide all information and files concerning the claim. b) Assist the City Attorney assigned to litigation of open claims and provide such investigative services as directed during pre-trial and trial stages. c) Assist in answering any interrogations or requests for admissions filed by third parties. d) At the request of the City Attorney, attend mandatory settlement conferences. 8 2013-331 e) At the request of the City Attorney, appear on behalf of the City in small claim actions filed against the City on open claims. f) As requested by the City Attorney, discuss and review investigation issues, discovery, and case strategy with special counsel. g) As requested, review case evaluations, correspondence and status reports forwarded by special counsel. When requested, provide support to special counsel on each case to obtain the most economical and best result for the City. 9