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HomeMy WebLinkAbout2018-168EXHIBIT B 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. 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. 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. EXHIBIT A VENDOR SERVICES AGREEMENT BETWEEN CARL WARREN & COMPANY AND THE CITY OF SAN BERNARDINO This Vendor Services Agreement (the "Agreement") is entered into this 1st day of July 2018, (Effective Date) by and between Carl Warren & Company ("Vendor") and the City of San Bernardino ("City")(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 third party administrative (TPA) services for general liability, and B. WHEREAS, it has been determined by the Director of Human Resources that Vendor represents that it has that degree of specialized expertise contemplated within, inter alia, 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 "B" and incorporated herein by this reference. 1.2. Professional Practices. All professional services to be provided by Vendor pursuant to this Agreement shall be provided 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. 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 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 judgements of every nature and description including reasonable attorney's 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 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, genetic information, except as permitted by law. Violation of this provision may result in the imposition of penalties. 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, for the first (1st) year beginning July 1, 2018 through June 30, 2019, Vendor shall be paid an amount not to exceed $115,700.00, which includes the base annual amount of $100,700.00 and an additional amount of $15,000.00 for claims indexing services. Claims indexing services shall be provided on an as needed basis, as determined by the City. If the City exercises the options provided for under section 3.1 of this Agreement, an annual increase of 3% shall be applied to the base amount each year that the contract remains in effect. 2.2. Additional Services. Vendor shall not receive compensation for any services provided outside 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 include the names of the person examined the dates of said examinations. City will accept charges only for those services first requested by the City. 2.4. 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. 2 3.0. TERM AND NOTIFICATION 3.1. Term. This Agreement shall commence on the July 1, 2018 and continue through June 30, 2019, with the option of three (3), one (1) year extensions, exercisable at the City's sole discretion. 3.2. Termination. City or Vendor may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) 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. (c) Workers' compensation insurance as required by the State of California. (d) Professional Liability coverage with limits of at least One Million Dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) aggregate, covering the risk of errors and omissions, negligent acts and costs of claims/litigation, including investigation and court costs. If the coverage is written on a "claims -made" form, Vendor must ensure that the policy retroactive date is before the date of the Agreement is awarded, that coverage is maintained during the duration of performance of the Agreement or the Agreement period (whichever is longer) and the policy has a reporting period or run-off provision of at least three (3) years following completion or termination of the performance of professional services under this Agreement. 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 " 3 (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. Certificate 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 commun(cation shall be deemed served or delivered: a) at the time of delivery if such communication is dent 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. IF TO VENDOR: Carl Warren & Company Richard McAbee Chief Marketing Officer PO BOX 1820 San Bernardino, CA 92402 Phone: (602) 485-8228 x101 IF TO CITY: City of San Bernardino Helen Tran Director of Human Resources 290 North D Street San Bernardino, CA 92401 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 member 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 C! 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 or 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 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 Claims 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 interest that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participation in making decisions that will have a foreseeable financial effect 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 5 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 not 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. 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 endorsement 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. 111 111 C.1 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. ATTEST: By: Georgeann 44anna, City bek Dated: aC� i Approved as o Form: Bv: Gary D. Saenz, City Attorney Dated: 7 �� 7 CITY OF SAN BERNARDINO By: Andrea M. Miller, City Manager Dated: Z d VENDOR Richard McAbee, Chief Marketing Officer Dated: