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HomeMy WebLinkAbout14-Risk Management - \.,... - '- '- CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Mark Andres, Risk Manager Subject: Resolution of the City of San Bernardino Authorizing the Selection of Marsh Risk & Insurance Services as the City's Property Insurance Broker Dept: Human Resources Date: December 13, 2007 MICC Mtg Date: January 7,2008 Synopsis of Previous Council Action: The City has contracted for insurance services annually since April 2001 with Alliance Insurance Services. Recommended Motion: Adopt resolution. ~C rk Andres, Risk Manager Contact person: M..rIc Anrlr..c::, Ric::k M..n..g..r DhonAe ~AA_~~nA Supporting data attached: Yes Ward: All FUNDING REQUIREMENTS: Amount: $90,000 Source: Funding to come from the City, EDA. and ~R W::lt~r n,:)pt: c:.p.p. ~t::lff r~pnrt fnr =-lIn,..s::atinn Account Number for City: 629-453-5161 Finance: Council Notes: - ~ CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subieet: A resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement with Marsh Risk & Insurance Services to provide risk mllnagement and property insurance brokerage services for the City for a period of one year, with four consecutive one-year renewal options to be exercised by the City. Back2round: Since April 2001, The City of San Bernardino (City), the Economic Development Agency (EDA) and the Water Department (Water) have been contracting for property insurance brokerage services from Alliant Insurance Services, Inc. (formerly Robert F. Driver Associates). Their original three-year brokerage agreement from April 1, 2001 through March 2004 was extended annually through June 30, 2007, providing coverage through June 30, 2008. After seven years, it is now appropriate to assess the insurance market for new pricing and services. - '- On September 16,2007, a Request for QualificationslProposal 07-004 for insurance brokerage services was issued and distributed to 13 insurance brokers. Unfortunately, this RFQIP did not include specific non-property related coverages. On October 17, 2007, a revised Request for QualificationsIProposal 07-007 was subsequently issued to include these coverages which are serviced by the current property insurance broker. On November 15,2007, five responses from brokerage firms (one located in San Bernardino) were received for evaluation. Four of the respondents are among the nine largest brokerage firms in the world. The RFQIP respondents were: 1. Alliant Insurance Services, Inc. 2. Hilb Rogal & Hobbs Insurance Services of California, Inc. 3. Marsh Risk & Insurance Services 4. Sawyer Cook Insurance 5. Willis Risk & Insurance Services of Los Angeles On November 18,2007, a rating panel consisting of the City's Risk Manager, Senior Financial Administrative Analyst for EDA, the Administrative Analyst II for the City Manager's Office, and the Finance Director for Water evaluated the responses on several factors, including 1. responsiveness to the scope of the RFQIP; 2. broker's size and structure; 3. broker's experience with public entities and municipalities; and 4. . broker's established contacts with property insurance markets and underwriters. ....... c e'- '- ........ On November 27 and 28,2007, all five brokerage firms participated in interviews conducted by the above rating panel to further clarify and present their insmance proposals, and the City's expectations of their service. Based upon the proposal evaluations and the results of the brokerage interviews, the panel selected three finalists who were permitted five additional days to present their fina1 best offer for terms and services for the City. After evaluating the three fina1 offers, the panel rated Marsh Risk & Insurance Services, located in Newport Beach, as the best qualified to provide property insurance brokerage services to the City of San Bernardino. Marsh Risk & Insurance Services will have one hundred and twenty days to complete a risk analysis and secure firm quotes for replacing the City's existing coverage under terms, conditions and limits equal to or better than those currently existing. Financial ImDact: Marsh Risk & Insurance Services has submitted a bid of Ninety Thousand Dollars ($90,000) for risk management and insurance brokerage services to be paid quarterly upon receipt of invoice. The City has chosen to go to a fixed brokerage fee relationship which will provide a savings of $62,000. This makes the cost of insurance transparent and assures that the broker is working solely to the benefit of the City and not based on the commissions returned from insurance companies. The $90,000 brokerage services fee will be divided among the City, the City's Economic Development Agency and the San Bernardino Water Department. The allocation will be based on the percentage of the valuation of the properties held by each entity, compared to all three properties as a whole. Using 2006 land valuations, it is estimable the City will be responsible for $40,000, the San Bernardino Water Department for $30,000 and the Economic Development Agency for $20,000. Recommendation: Adopt resolution. --- -- "- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 RESOLUTION NO. A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MARSH RISK & INSURANCE SERVICES TO PROVIDE RISK MANAGEMENT AND PROPERTY INSURANCE BROKERAGE SERVICES FOR THE CITY FOR A PERIOD OF ONE YEAR, WITH FOUR CONSECUTIVE ONE- YEAR RENEWAL OPTIONS TO BE EXERCISED BY THE CITY. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City an Agreement with Marsh Risk and Insurance Services to provide property insurance brokerage coverage, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as though fully set forth at length. SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. III III III 19 20 21 22 23 24 III 25 26 III 27 III III III III III III -#/~ j'701 28 - ...... --- 1 2 3 4 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MARSH RISK & INSURANCE SERVICES TO PROVIDE RISK MANAGEMENT AND PROPERTY INSURANCE BROKERAGE SERVICES FOR THE CITY FOR A PERIOD OF ONE YEAR, WITH FOUR CONSECUTIVE ONE- YEAR RENEWAL OPTIONS TO BE EXERCISED BY THE CITY. 5 I HEREBY CERTIFY that the foregoing Resolution was duIy adopted by the Mayor 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Common Council of the City of San Bernardino at a meeting thereof, held on the _ day of , 2008, by the following vote, to wit: NAYS ABSTAIN ABSENT Council Members: AYES ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON MC CAMMACK Rachel Clark, City Clerk The foregoing resolution is hereby approved this day of 2008. Patrick J. Morris, Mayor City of San Bernardino Approved as to Form and legal content: JAMES F. PENMAN, rJ' -if. . City Att ~.. . By: ~ ro/j{rJ (J~64kJ Exhibit A 1 AGREEMENT "- 2 THIS AGREEMENT is made and entered into this 7th day of January, 2008, by and 3 between the City of San Bernardino, a municipal corporation, hereinafter referred to as "City" 4 and Marsh Risk & Insurance Services, hereinafter referred to as "Marsh." 5 WHEREAS, after a request for qualifications and proposal for insurance brokerage 6 services, Marsh has been selected and appointed as City's exclusive risk management 7 advisor, risk management consultant, and insurance broker, as applicable, for all forms of the 8 City's property insurance program. 9 WHEREAS, Marsh has experience and knowledge in, and is properly licensed for, the performance of insurance brokerage services; NOW THEREFORE, for and in consideration of the mutual promises, covenants and conditions herein contained, the parties hereto agree as follows: Under the direction of the City's Director of Human Resources, Marsh shall provide the City professional risk management and insurance brokerage services according to the terms and conditions of this Agreement. 1. Aareement. A. City does hereby contract with Marsh to provide professional risk management and insurance brokerage services as hereinafter provided for a period of five (5) years, commencing on the seventh (7th) day of January 2008 and terminating on January 6, 2013. 10 11 12 13 "..-"'... 14 '-' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "- B. Notwithstanding the term, either party may terminate this Agreement upon 90 days' prior written notice to the other party. In the event this Agreement is terminated, Marsh will assist City in arranging a smooth transition process, subject to receipt by Marsh of all amounts due Marsh from City. III III III Page 1 of 7 1 - 2 3 4 5 6 7 8 9 10 11 12 13 .- 14 \ ........ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,-. C. Marsh's obligations and the obligation of its affiliates (including, if applicable, Marsh's United Kingdom affiliates) to provide services to City will cease upon the effective date of termination, unless otherwise agreed upon in writing. D. In the event of termination by City prior to expiration, Marsh's annual compensation, as set forth in Appendix C, Compensation, for the current Agreement year will be deemed earned according to the following rates for risk management and insurance brokerage services performed through the date of termination: sixty percent (60%) at the commencement of the current Agreement year; seventy-five percent (75%) after four months; and one hundred percent (100%) after seven months. E. In the event of termination by Marsh prior to expiration, Marsh's annual compensation will be deemed earned on a pro-rata basis. 2. Authorization: Marsh shall be authorized to represent and assist City in all discussions and transactions with insurers relating to the lines of insurance as set forth in Appendix A, Scope of Services, when acting as the City's broker, provided that Marsh shall not place any insurance on behalf of the City unless so authorized by City in writing. Marsh shall be an independent contractor and shall not be deemed an employee of City during the term of this Agreement. 3. Services to be Petformed bv Marsh: A. The Scope of Services, attached hereto as Appendix A, further defines detailed risk management and insurance brokerage services provided by Marsh, according to respective lines of insurance, and is hereby incorporated into and made a part of this Agreement. B. Within 120 days of commencement of this Agreement, Marsh shall obtain and submit new insurance quotations for all City's property insurance coverages currently in force, as well as any other non-property insurance coverage listed on Appendix A, Section 1. Page 2 of 7 1 C. Whenever market conditions permit, Marsh shall obtain at least two (2) '-" 2 quotations on each separate insurance coverage or layer of insurance. 3 D. Marsh shall submit firm quotations to the City's Director of Human 4 Resources at least thirty (30) days prior to the expiration of existing policies; provided 5 however, that City's Director of Human Resources may waive such thirty (30) day notice in 6 the event Marsh can demonstrate to the satisfaction of the City's Director of Human 7 Resources that there exists extenuating circumstances which preclude or otherwise make 8 such thirty (30) day notice impracticable. 9 E. Marsh shall make a good faith effort to give notice to City's Director of 10 Human Resources of all favorable or unfavorable market developments which might affect 11 the City. Annually, on or before March 1, Marsh will provide a written assessment of policies 12 in force and include recommendations, if any, for improved risk coverage at a lower price to 13 the City. Annually, on or before November 1, Marsh will provide in writing the best estimates 14 for the renewal premium costs of all City's insurance. '- 15 F. It is understood that, from time to time, Marsh may be requested by City 16 to obtain insurance quotations on coverages not contained in said Scope of Services, as 17 mutually agreed by Marsh and the City. 18 G. At the request of the City's Director of Human Resources, Marsh shall 19 include the City's Director of Human Resources, or hislher designated representative, in 20 negotiations with underwriters involving placement of all the City's insurance coverages. It is 21 required that Marsh will utilize insurers holding an A. M. Best rating of "A" or better, as well 22 as an A. M. Best minimum Financial Size Category of Class VII. Any exceptions or changes 23 in ratings require the approval of the Director of Human Resources. Marsh will apprise the 24 Director of Human Resources of the A. M. Best ratings for all insurers participating in 25 coverage quotations for the City. 26 III 27 III '-" 28 III Page 3 of 7 1 ~ 2 3 4 5 6 7 8 9 10 11 12 13 _14 \"... 15 16 17 18 19 20 21 22 23 24 25 26 27 . 28 ~ H. It is agreed and understood that the Marsh account team will be managed by Craig Morris, Senior Vice President, as long as he is employed by Marsh. Any change in the structure of Marsh's account team with require approval by the City's Director of Human Resources, which shall not be unreasonably withheld. I. It is the Marsh account team's responsibility to: (1) Oversee, coordinate, and be responsible for, all relevant services performed by Marsh, subsidiaries, underwriters, or service agencies arranged by Marsh's account team on behalf of the City. (2) By April 30, 2008, Marsh will provide City with a complete insurance summary, including coverages for the City, the San Bernardino Municipal Water Department and the Economic Development Agency. Marsh will provide City with an updated insurance summary within thirty (30) days of any changes in policies or coverages. (3) Respond to any extraordinary needs of City, as necessary. J. It is understood and agreed that Marsh's account team shall meet with the City's Director of Human Resources, or hislher designated representative, no less than quarterly, commencing in the first quarter of 2008. 4. Terms and Conditions: The Standard Terms and Conditions set forth in Appendix B shall apply to the Services performed by Marsh under this Agreement. 5. Work to be Performed bv City: City's responsibilities are identified in the attached Appendix B, paragraph 2, Client Responsibilities, which are critical to the accurate and competent placement of insurance coverage for City. 6. Marsh's ComDensation and Payment: City shall compensate Marsh annually for risk management and insurance brokerage services pursuant to this Agreement as follows: III III Page 4 of 7 __ 1 A. For the performance of all services contemplated under this Agreement 2 and its Appendices A and B, City shall compensate Marsh an annual fee of Ninety Thousand 3 Dollars and No Cents ($90,000.00), payable in quarterly installments, in accordance with the 4 compensation terms and conditions referenced in the attached Appendix C, Compensation. 5 B. Future annual fee compensation will be paid as follows: 6 Year 2: $90,000; Year 3: $95,000; Year 4: $95,000; Year 5: $100,000 7 C. The City is presently a member of Big Independent Cities Excess Pool 8 (BICEP), an insurance Joint Powers Authority, which provides general, law enforcement, 9 automobile, public officials and personal injury liability coverage at $25 million in excess of $1 10 million. Should the City request Marsh to market coverage for these exposures in excess of 11 the BICEP program, Marsh shall be paid commissions directly from the insurance carriers. 12 7. Assianment: 13 Neither City nor Marsh shall assign or transfer its interest in this Agreement - 14 without the written consent of the other party. "'-15 8. ComDliance With Laws: 16 This Agreement shall be governed by and construed in accordance with any 17 and all applicable laws of the United States, the State of California, and ordinances, 18 regulations and policies of City. 19 9. Professional Liability Insurance: 20 Marsh shall maintain throughout the terms of this Agreement professional 21 liability and errors and omissions coverage with limits in an amount of $5 million per claim. 22 Marsh shall furnish to City a certificate issued by Marsh's professional liability insurance 23 carrier or a person authorized to issue certificates on the insurer's behalf, showing that the 24 above-mentioned insurance has been issued and is in full force and effect. Said insurance 25 shall endeavor to proVide thirty (30) days' written notice to the City's Director of Human 26 Resources prior to any cancellation of said insurance. 27 III ~28 III Page 5 of 7 '_ 1 10. Hold Harmless: 2 Marsh agrees to defend, indemnify and hold harmless the City, its officials, 3 employees, representatives and volunteers from and against any and all claims, demands, 4 defense costs, liability or consequential damages of any kind or nature arising out of or in 5 connection with the Marsh's performance or failure to perform under the terms of this 6 Agreement. 7 11. Miscellaneous: This Agreement may be modified or otherwise amended, only 8 if such modification, amendment or waiver is in writing and signed by the parties hereto. 9 This Agreement shall be binding upon and inure to the benefit of the parties' respective 10 successors. Neither party shall have any liability for any failure or delay in performance of its 11 obligations under this Agreement because of circumstances beyond its reasonable control, 12 including, without limitation, acts of God, fires, floods, earthquakes, acts of war or terrorism, 13 civil disturbances, sabotage, accidents, unusually severe weather, governmental actions, .-, 14 power failures, computerlnetwork viruses that are not preventable through generally '- 15 available retail products, catastrophiC hardware failures or attacks on its server. 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III '___ 28 III Page 6 of 7 - 8 9 10 11 12 13 -- 14 '- 15 16 17 18 19 20 21 22 23 24 25 26 27 ,- .- 28 '-- 1 12. ComDlete Aareement: 2 This Agreement, together with all appendices attached hereto, contains the 3 entire understanding of the parties with respect to the subject matter hereof and supersedes 4 all written or oral prior agreements. 5 6 ATTEST: CITY OF SAN BERNARDINO Municipal Corporation of the State of California 7 By: By: Fred Wilson, City Manager Rachel Clark, City Clerk MARSH RISK & INSURANCE SERVICES By: Craig M. Morris, Senior Vice President Approved as to form: James F. Penman, City Attorney By, hCt~ ;/Q&QJ Page 7 of 7 - Appendix A Scope of Services 1. Marsh will act as the Oty's risk management advisor, consultant and Insurance broker, as applicable, with respect to the following lines of insurance and their respective dates of coverage: a. Auto/Motor Uability exd Physical Damage for Animal Control Services for the Oty of Fontana - 07/01/2008 b. General Uability (may include Products) for the Center for Individual Development - 07/01/2008 c. Lead Umbrella/Excess Uability for the Center of Individual Development - 07/01/2008 d. Adelity Bond (Crime Insurance) - 07/01/2008 e. Boiler & Machinery - 07/01/2008 f. Difference in Conditions - 07/01/2008 g. Property - 07/01/2008 h. Surety - (various dates) 2. Marsh shall provide the following services as respects the lines of insurance In Section 1, above: ,- a. Work with the Oty to assess the Oty's risk exposures; "-' b. Work with the Oty to design and develop the City's Insurance program; c. Assist with documentation and other steps to obtain commitments for and implementation of the City's insurance program upon the Oty's instructions; d. Keep the Oty informed of significant changes and/or trends in the insurance marketplace and provide the City with annual Information on market trends; e. Assist the Oty in Identifying insurers. Solicit quotations from insurers for selection by the Oty for the placement of City's insurance program in accordance with the Oty's instructions; f. Conduct a Renewal Strategy Meeting in advance of each placement; g. Negotiate on Oty's behalf with Insurers and keep the City informed of significant developments In the negotiations; h. Assist the Oty with the evaluation of options received from the Insurance market; """"" 1 of5 '- i. Use best efforts to place insurance on behalf of the Oty as directed by the City and secure the City's approval prior to requesting insurers to bind coverage; j. Follow up with insurance carriers for timely issuance of policies and endorsements; k. Promptly respond to City's questions related to coverage placed by Marsh or the placement process; I. Deliver binders on or before the effective date of coverage being p1acec1, subject to placement; m. Process or facilitate the processing and delivery of certificates or memoranda of insurance and auto identification cards with respect to insurance policies placed by Marsh, as requested by the Oty; n. Review policies and endorsements for conformity to agreed terms and coverages; . o. Provide coverage summaries for all new placements and updates on changes to existing policies; "".-. '- p. Review premium and exposure audits, rating adjustments, dividend calculations and loss data; q. Assist the City in establishing claims reporting procedures to insurers; r. Monitor published financial information of the City's current insurers and alert the City when the status of one or more of such insurers falls below Marsh's minimum financial guidelines. Insurers with whom the City's risks have been placecl will be deemed acceptable to the Oty, in the absence of contrary instructions from the City; s. Provide the City with detailed invoices, except in the case of direct billing by insurers. Remit premiums to insurers and taxes and fees to the relevant authorities on a timely basis, following receipt thereof from the Oty; t. Provide the following property loss control services as respects locations/facilities in San Bernardino: ~ Evaluate internal hazards of the City's operations; ~ Evaluate external exposures of the City's operations; \.- 2of5 "- ~ Provide City with information relating to government regulations which may effect property loss control; ~ Assist City in City's efforts to comply with or mitigate insurer recommendations; ~ Perform one loss control review of the Oty's fadlities; ~ Prepare spedalized underwriting information; and ~ Perform special studies relating to Seismic Assessment. u. Assist the City in the development and implementation of internal claims handling procedures; v. Assist the City with initial reporting of claims to Insurers as follows: ~ Evaluate coverage applicability; ~ With the exception of Workers' Compensation and/or Primary Casualty claims, prepare loss notices to insurers; - "'- ~ Notify insurers of claims, provided that the City's Marsh claims representative is informed of the claim in writing by the CIty, with details of the claim, and Marsh has placed the applicable policies or the Marsh claims representative has been provided written notice by the CIty of the applicable carrier and policies; and ~ Coordinate responses to, meetings with, and visits to loss sites by insurers; w. Assist the CIty with the settlement of claims with Insurers as follows: ~ Assist in the development of settlement strategies; ~ Assist with insurer negotiations; and ~ Assist the City with litigation management issues that Impact claim settlement. x. Provide benchmarking information for lines of insurance placed by Marsh; and y. Upon the Oty's request, review Oty's contracts with respect to insurance and risk management related Issues. .- '-' 30f5 '-' Marsh shall provide up to one hundred (100) hours, in the aggregate, for the Marsh risk consulting services provided in SectIons 2.t through 2.w. Should the City require additional services and Marsh agrees to provide such services, the City agrees to compensate Marsh at this standard hOUrly rate as such additional services are performed. SectIons 2(e), (g), (i), (j), (I), (m), (5), (v) and (w) will only apply with respect to placements for which Marsh Is acting as the Clty's broker. 3. Whenever the Marsh account team is informed in writing by the CIty that a claim has been notified to the primary carrier, Marsh will notify all applicable excess carriers of the claim, unless the City gives the Marsh account team contrary instructions in writing, provided that Marsh has placed the applicable excess policies or the Marsh aty executive has received written notice from the CIty of the applicable carrier and policies. If Marsh is instructed not to provide notice to any excess carrier, Marsh shall have no responsibility for any consequences arising out of the failure to give notice. ^,,- 4. Additional Services are available for separate compensation and shall be agreed upon in advance and addressed by amendment to this agreement or by separate agreement (in certain cases with affiliates of Marsh). Such additional services include, but are not limited to: '- a Actuarial analysis of Workers' Compensation, General Uability, and Automobile Uabillty claims, or other lines of insurance; b Consulting relating to workers' compensation cost containment, including behavioral risk management, absence management, cumulative injury management, financial diagnostics and custom cost containment solutions; c Business interruption and other claim valuation services offered by Kroll's Forensic Accounting practice; d Environmental risk consuiting services; e Operations and assets consuiting services, Including business continuity management; .- f Supply chain risk management, loss control and engineering support services and strategic risk assessments; g Oaims services other than those specified above, including catastrophic claims support, mass tort claims support, claims management services, special claims advocacy services and archival research; '- 40fS ~ h Services in connection with loss portfolio transfers and alternative risk financing, induding placements made in connection with such services; captive insurance company feasibility studies; j Establishment and administration of captive insurers; k Placement of non-recurring Insurance, including, but not limited to: . one-time placements for construction projects, . one-time placements for marine/cargo risks, . one-time placements for surety, . Placements for specific financial risks, such as trade credit, . Placements involving significant quantitative or actuarial analysis or lJlOdeling, . Placement of risks with financial institutions other than insurance carriers, . Placements of risks not customarily accepted by insurers; Employee benefits services; m Pension plan consulting; ..- ,-. n Compensation consulting; o Executive deferred compensation services; P Risk management claims information systems, including STARS and TrenclTracker software programs and related services; q Enterprise Risk Management consulting; r Strategic Risk Assessment; s Provision of Marsh personnel on an out-sourced basis; t Intellectual Property Consulting; and u Security Consulting: . Insurance-related mergers and acquisition due diligence services and transactional solutions; - . Placement and servicing of owner-controlled insurance programs; and --- . Interactive on-line City services. SofS -- Appendix B Standard Terms and Conditions These Standard Terms and Conditions are part of the attached City Service Agreement between City Of San Bemardino (the "City") and Marsh Risk & Insurance Services ("Marsh"). 1. Taxes and Fees. In certain cases, insurance placements that Marsh makes on the City's behalf may require the payment of insurance premium taxes (including U.S. federal excise taxes), sales taxes, use taxes, surplus or excess lines and similar taxes and/or fees to federal, state or foreign regulators, boards or associations. The City agrees to pay such taxes and fees, whenever assessed. To the extent practical, such taxes and fees will be identified by Marsh on invoices covering such placements. Any such taxes and fees collected by Marsh will be promptly remitted by Marsh to the appropriate authorities. 2. ~itv ReSDOnsibilities /'- The City shall be solely responsible for the accuracy and completeness of information and other documents furnished to Marsh and/or insurers by the City, and the City shall sign any required application for insurance. The City recognizes and agrees that all insurance coverages placed in connection with this Agreement and all Services, evaluations, reports and recommendations provided by Marsh hereunder are based on data and information furnished by the City. '- Marsh will be under no obligation to investigate or verify the completeness or accuracy of any such data or information, nor will Marsh have any liability for any errors, deficiencies or omissions in any Services, evaluations, reports or recommendations provided to, or any insurance coverages placed on behalf of, the City that are based on such inaccurate or incomplete data or information. The City understands that the failure to provide all necessary information to an insurer, whether intentional or by error, could result in the impairment or voiding of coverage. The City will review all policies, endorsements and program agreements submitted by Marsh and will advise Marsh of anything the City believes is not in accordance with the negotiated coverage and terms within thirty days following receipt. 3. Intermediaries. (a) When in Marsh's professional judgment it is necessary or appropriate and subject to the City's prior approval, Marsh may utilize the services of other intermediaries, including wholesale brokers, to assist in the marketing of the City's insurance. Such intermediaries may be affiliates of Marsh. --- B-t (b) Wholesale brokers may represent insurers or act as managing general agents. '_ Prior to utilizing a wholesale broker in connection with a placement for the City, Marsh shall disclose to the City the compensation received or to be received by Marsh and its affiliates in connection with the wholesale placement, any interests of Marsh and its affiliates in the wholesale broker, any contractual agreements between Marsh and its affiliates, on the one hand, and the wholesale broker, on the other, and altematives to using the wholesale broker. ~ Marsh shall disclose to the City the compensation of any Marsh affiliated intermediaries utilized in connection with the City's placements, and obtain the City's consent to such compensation, prior to the binding of coverage. Marsh shall disclose to the City the compensation of any non-Marsh affiliated intermediaries utilized in connection with the City's placements to the extent known by Marsh. 4. Other Revenue. ~ (a) If the City requests assistance with obtaining premium financing in connection with the City's placements and Marsh provides such assistance, Marsh may receive compensation from the finance company that provides premium financing to the City. Marsh shall provide to the City information relating to Marsh's and its affiliates' arrangements with and interests in the premium finance companies to be considered by the City and the compensation that Marsh and its affiliates would receive from finance companies with respect to the City's placements. (b) Marsh eams and retains interest income on premium payments held by Marsh on behalf of insurers during the period between receipt of such payments from City and the time such payments are remitted to the applicable insurer, where permitted by applicable law. 5. Confidentiality. (a) Confidential Information. The City may provide Marsh with certain proprietary and confidential information ("Confidential Information") in connection with the Services provided by Marsh under this Agreement. Neither Marsh nor any of its employees or agents directly or indirectly shall disclose to any third party or use any Confidential Information fumished by or on behalf of City for any purpose except in furtherance of the Services; or other insurance brokerage, risk consulting, risk financing, risk transfer, employees benefits or other insurance-related services rendered by Marsh to City, which may include in the normal course of business the release to insurers and other financial institutions of Confidential Information relevant to the underwriting and/or evaluation of City's risks and the processing of its claims, provided that such insurers and financial institutions are informed of the confidential nature of such information. - B-2 --- Marsh shall take all steps reasonably required to maintain the confidentiality of Confidential Information in Marsh's possession. The transmission of Confidential Information via electronic data transmission networks which provide for the security of users' data shall be deemed consistent with Marsh's obligations hereunder unless such use is contrary to City's express instructions. (b) ExceDtions. The restrictions and agreements set forth above shall not apply to any Confidential Information: (i) which at the time disclosed to or obtained by Marsh is in the public domain; (ii) which becomes part of the public domain through no act, omission or fault of Marsh; (iii) which Marsh's records demonstrate was developed independently by Marsh or was received by Marsh from a third party which Marsh had no reason to believe had any confidentiality or fiduciary obligation to the City with respect to such information; .- (iv) which is required to be disclosed by law, including, without limitation, pursuant to the terms of a subpoena or other similar document. However, Marsh shall, to the extent practical, give prior timely notice of such disclosure to the City to permit the City to seek a protective order, and, absent the entry of such protective order, Marsh shall disclose only such Confidential Information that Marsh is advised by its counsel must be disclosed by law; or (v) following the lapse of two years after disclosure of such information to Marsh. (c) Retum of Confidential Information. ,-", As between the City and Marsh, Confidential Information shall be the sole and exclusive property of the City. Upon the City's request, all documents and records in Marsh's possession containing Confidential Information shall be retumed to the City. However, that Marsh may retain copies of documents that may contain Confidential Information which are necessary for the conduct and proper record keeping of Marsh's business in accordance with standard operating procedures or applicable law. (d) Remedv. .-. It is understood and agreed that money damages would not be a sufficient remedy for any breach of these confidentiality provisions and the City shall be entitled to injunctive relief as a remedy for such breach, without prejudice to any other rights or remedies available to the City under applicable law. '- B-3 6. Record Retention. ',,- Files (other than core documents, as defined in Marsh's record retention policy, including insurance policies, which are permanently retained) will be retained for no more than five years after the expiration of a particular policy's term. 7. pi_claimers: ~1lY'itation of Lia~ (a) Marsh does not speak for any insurer, is not bound to utilize any particular insurer and does not have the authority to make binding commitments on behalf of any insurer, except under special circumstance which Marsh shall always endeavor to make known to the City. Marsh shall not be responsible for the solvency of any insurer or its ability or willingness to pay claims, retum premiums or other financial obligations. Marsh does not guarantee or make any representation or warranty that insurance can be placed on terms acceptable to the City. - (b) If Marsh has taken over any existing program or policies implemented by another broker, Marsh will not assume any responsibility for the acJequacy or effectiveness of those programs or policies or any acts or omissions occurring prior to Marsh's engagement. Within 45 days, Marsh will have completed a review of such programs and policies and will make recommendations it believes are necessary. --- (c) Any loss control services and/or surveys performed by Marsh under this Agreement are advisory in nature. Such services are limited in scope and do not constitute a safety inspection as provided by a safety engineering service. Marsh does not claim to find or include every potential loss, hazard, statutory or code violation or violation of good practice. (d) All surveys and reports are based upon conditions observed and information supplied by the City. Marsh does not expressly or impliedly guarantee or warrant in any way the safety of any site or operation or that the City or any of its sites or operations is in compliance with federal, state or local laws, codes, statutes, ordinances or recommendations. In any event, Marsh's liability if any, relating to or arising out of loss control services performed by it for the City shall not exceed the total compensation paid to Marsh under this Agreement. - '- B-4 - --' Appendix C Compensation 1. As compensation for providing the Services, the Oty shall pay Marsh an initial annual fee of $90,000.00 to be paid by the CIty commencing January 31, 2008, in equal quarterly installments. Future annual compensation fees are capped as follows: Year 2: $90,000 Year 3: $95,000 Year 4: $95,000 Year 5: $100,000 2. Prior to each placement by Marsh for the Oty, Marsh shall disclose to the Qty and obtain the Oty's approval of any commissions to be collected by Marsh or Its affiliates with respect to such placement. Marsh shall credit amounts equal to any retail commissions collected by Marsh or its affiliates against remaining installments of the annual fee (except as provided below) and, to the extent In excess of the remaining Installments, refund previously paid installments of the annual,fee. 3. In the event such retail commissions for a Contract year exceed the annual fee for that year, then such excess retail commissions shall be returned to the Qty if permitted by law. Otherwise, an amount equal to such excess retail commissions shall be carried forward and applied against Marsh's annual compensation for subsequent years If permitted bylaw. Any wholesale commissions collected by Marsh or Its affiliates will not be credited against the annual fee. "-' 4. In addition to the compensation set forth above, Marsh's foreign offices and affiliates shall be entitled to receive commissions on foreign local placements made on behalf of the CIty or Its foreign subsidiaries, which shall be in additiOn to and not be credited against the annual fee. Marsh shall disclose to the Oty and obtain the City's approval of such commissions prior to placement Marsh may make such disclosure to and obtain such approval from the Oty's local operating management 5. In the event (i) the CIty elects to obtain Insurance for a particular line of coverage from a foreign Insurer domldled In a country not part of the Clty's Insurance program with respect to such line of coverage as of the commencement date of this Agreement; and (Ii) the resources and services of a foreign Marsh affiliate are necessary or appropriate for such placement, Marsh and the Oty shall negotiate additional compensation for such selVices and/or rnodiflcatlon to Marsh's compensation in good faith. 6. Any commissions collected by Marsh or its affiliates shall be considered fully earned at the time of placement, even If an Insurance policy placed by Marsh or its affiliates for the CIty or Its foreign subsidiaries is terminated by the CIty or its foreign subsidiaries prior to expiration, unless such policy is replaced by another policy placed by Marsh or Its affiliates for the Oty or Its foreign subsidiaries during the term of this Agreement '- C-!