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HomeMy WebLinkAboutCC Resolution 9493 (Risk Management Consultation)RESOLUTION NO. 9-4!13 A RESOLUTION AUTHORIZING THE SIGNING OF AN AGREEMENT WITH INSURANCE CONSULTING ASSOCIATES, INC. FOR ADMINISTRATION OF THIRD -PARTY LIABILITY CLAIMS AND FOR RISK MANAGEMENT CONSULTATION (Three year agreement from 12/11/95 through 11 /30/98) THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: The CITY MANAGER and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, an agreement with INSURANCE CONSULTING ASSOCIATES, INC., a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Cleric of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City, held on Monday, the 20th day of November, 1995, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Zappetini and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Phillips JEArIE M. LEONCI I, City Cleric ORIGINA1 &% A� AGREEMENT FOR ADMINISTRATION OF THIRD -PARTY LIABILITY CLAIMS AND FOR RISK MANAGEMENT CONSULTATION, This Agreement is made and entered into this 1st day of December, 1995, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and INSURANCE CONSULTING ASSOCIATES, INC. (hereinafter "ADMINISTRATOR"). RECITALS WHEREAS, ADMINISTRATOR is licensed in California to provide independent adjusting services (State license #0607524); and WHEREAS, ADMINISTRATOR is a corporation duly organized under the laws of the State of California with its home office located at 621 A, Second Street, Petaluma, California; Mr. Ronald R. Blanquie, President, and Mr. Daniel A. Blanquie, Executive Vice President; and WHEREAS, CITY is a municipal corporation duly organized and existing in the Sate of California, County of Marin; and WHEREAS, CITY is self-insured for all liability claims asserted against it by third parties; and WHEREAS? ADMINISTRATOR has provided third -party liability claims administration and risk management consulting services to CITY for the past fourteen years; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY. The City Manager, or designee, shall be the representative of the CITY for all purposes under this Agreement. The Assistant City Manager is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. ADMINISTRATOR. ADMINISTRATOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for ADMINISTRATOR. Mr. Ronald R. Blanquie is hereby designated as the PROJECT DIRECTOR for ADMINISTRATOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT 1 DIRECTOR for any reason, the ADMINISTRATOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF ADMINISTRATOR. ADMINISTRATOR shall perform the duties and/or provide the services as outlined in Exhibit "A", attached and incorporated herein. 3. DUTIES OF CITY. CITY shall perform the duties as outlined in Exhibit "B", attached and incorporated herein. 4. COMPENSATION. For the full performance of the services described herein by ADMINISTRATOR, CITY shall pay ADMINISTRATOR as outlined in Exhibit "C", attached and incorporated herein. Payment will be made monthly upon receipt by PROJECT MANAGER or City Attorney, of itemized invoices submitted by ADMINISTRATOR. 5. TERM OF AGREEMENT. The term of this Agreement shall be for three (3) years commencing on December 1, 1995 and ending on November 30, 1998. Compensation for the first two (2) years shall be at the rates shown in Exhibit "C". Compensation for the final year of the agreement shall be increased in an amount to be determined by mutual agreement of the parties, not to exceed the "CPI/C" as defined in Exhibit "C". However, for the purpose of maintaining the continuity of claims administration for CITY upon the end of the term of, or upon termination of this agreement, ADMINISTRATOR may continue to perform services as outlined in Exhibit "A" on a month-to-month basis, at the rates then in effect. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon sixty (60) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon thirty (30) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination notice; to the reasonable satisfaction of the party giving such notice, within twenty (20) days of the receipt of said notice. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. 7. PROJECT DOCUMENTS: OWNERSHIP. A. Ownership. The written documents and materials prepared by and provided the ADMINISTRATOR in connection with the performance of its duties under this Agreement, shall be the property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. B. Return of Documents. Upon termination of this agreement for any reason, any and all CITY documents or materials provided to ADMINISTRATOR and any and all of ADMINISTRATOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. Cost of delivery and of duplication/photocopy of said documents, as required by law, shall be borne by City. 8. INSPECTION AND AUDIT. Upon reasonable notice, ADMINISTRATOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by ADMINISTRATOR in connection with its performance of its duties and its provision of services under this Agreement. ADMINISTRATOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. During the term of this Agreement, ADMINISTRATOR shall maintain, at no expense to CITY, the following insurance policies: 1. A comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage; 3 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence; 3. If any licensed professional performs any of the services required to be performed under. this Agreement, a professional liability insurance policy in the minimum amount of one million ($1,000,000-) dollars to cover any claims arising out of the ADMINISTRATOR's performance of services under this Agreement. B. The insurance coverage required of the ADMINISTRATOR by section 10. A., shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution; 2. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury; 3. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, and employees as additionally named insureds under the policies; 4. ADMINISTRATOR shall provide to PROJECT MANAGER, or City Attorney (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming CITY, its officers, agents and employees, as additional insureds under the policies; 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to CITY's PROJECT MANAGER; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years; 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement; 8. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If it employs any person, ADMINISTRATOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both ADMINISTRATOR and 4 CITY against all liability for injuries to ADMINISTRATOR's officers and employees. D. Any deductibles or self-insured retentions in ADMINISTRATOR's insurance policies must be declared to and approved by the PROJECT MANAGER and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or ADMINISTRATOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney fees and defense expenses. 11. INDEMNIFICATION. ADMINISTRATOR shall indemnify, release, defend and hold harmless CITY, its officers, and employees, against any claim, demand, suit, judgement, loss, liability or expense of any kind, including attorney's fees, arising out of or resulting in any way from any acts or omissions, intentional or negligent, of ADMINISTRATOR or ADMINISTRATOR's officers, agents and employees in the performance of their duties and obligations under this Agreement. CITY shall indemnify, release, defend and hold harmless ADMINISTRATOR, its officers, and employees, against any claim, demand, suit, judgement, loss, liability or expense of any kind, including attorney's fees, arising out of or resulting in any way from any acts or omissions, intentional or negligent, of CITY or CITY's officers, agents and employees in the performance of their duties and obligations under this Agreement. 12. LIMITATION OF LIABILITY. ADMINISTRATOR will provide services utilizing good faith efforts based upon its experience in claims management and consulting. ADMINISTRATOR provides no warranty, express or implied, that its services will result in any specific outcome for any case, in any reduction in frequency, severity or cost of any liability claims, or in reduction of any incidents giving rise to claims no matter how caused. 13. NONDISCRIMINATION. ADMINISTRATOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 14. COMPLIANCE WITH ALL LAWS. ADMINISTRATOR shall observe and comply with all 5 applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. ADMINISTRATOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. ADMINISTRATOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 15. NO THIRD PARTY BENEFICIARIES. CITY and ADMINISTRATOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agree- ment, to the other party. 16. NOTICES. All notices and other communications requi=ed or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Ms. Suzanne Golt Acting City Manager/Project Manager City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 TO ADMINISTRATOR: Mr. Ron Blanquie, President Project Director 621 A Second Street P.O.Box 750849 Petaluma, CA 94975-0849 17. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agree- ment, ADMINISTRATOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. ADMINISTRATOR and CITY expressly intend and agree that the status of ADMINISTRATOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 2 18. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the ADMINISTRATOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the ADMINISTRATOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 19. SET-OFF AGAINST DEBTS. ADMINISTRATOR agrees that CITY may deduct from any payment due to ADMINISTRATOR under this Agreement, any monies which ADMINISTRATOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 20. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 21. COSTS AND ATTORNEY FEES. The prevailing party in any action brought to enforce the term" and conditions of this Agreement, or arising out of the 7 performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney fees expended in connection with such action. 22. CITY BUSINESS LICENSE / OTHER TAXES. ADMINISTRATOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code. ADMINISTRATOR shall pay any and all state and federal taxes and any other a licable taxes. ADMINISTRATOR' s taxpayer identification number isJ 1 -2s , and ADMINISTRATOR certifies under penalty of perjury that said taxpayer identification number is correct. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL City nager V ATTEST: C 9- Clerk �eY LJ ADMINISTRATOR Name: Title: EXHIBIT "A" 2. DUTIES AND SERVICES OF ADMINISTRATOR. A. Claims Administration: ADMINISTRATOR shall perform the following duties and/or provide the following services in a competent and professional manner: 1. Assist CITY in the overall management of its liability claims administration and loss control program; 2. Provide claims administration services to CITY, including but not limited to: a) Review all new verified claims, create file for each claim, input appropriate claim information into the computer data base, and contact all claimants, within fifteen (15) working days of the initial receipt of claim; b) Initiate prompt investigations of new claims, and, upon request of CITY, initiate investigations of incidents that might develop into claims; C) Attempt to secure the confidence and co- operation of claimants and their attorneys; d) Set reserves on each new claim within ten (10) working days of initial receipt of claim; e) Provide timely reports to CITY regarding new claims; these reports shall outline 1) issues of fact, 2) liability, 3) possible defenses, 4) damages, 5) recommendations for action, including settlement, rejection and defense; f) In consultation with City Attorney, retain defense counsel to defend claims proceeding into litigation; g) Where possible, and subject to the approval by CITY of settlement authority, attempt to negotiate with claimants and/or their attorneys, settlement of claims at the earliest possible stage of the claims process; h) In accordance with their established guidelines, report appropriate claims to the excess insurer or excess liability pool in a timely manner; i) Subject to approval of CITY, attempt to obtain open extensions of time, where appropriate, in order to more efficiently, economically and expeditiously settle claims and actions; 9 j) Obtain release of all claims from claimants receiving settlements from CITY through ADMINISTRATOR; k) Receive, review and approve all expense billings, including attorney fees, related to pending claims or actions, and obtain any additional documentation as needed prior to approval; 1) Upon request of CITY or CITY's defense counsel, attend bi-monthly meetings of CITY's loss committee, any settlement conferences or other hearings, and any meetings of the City Council regarding liability claims or actions; M) Provide CITY a monthly computerized loss run of open and closed cases, in computer disc form compatible to CITY equipment, in a format to be approved by CITY. 3. Provide processing of small property damage claims as follows: a) Receive and acknowledge claim, open f ile and input into computer; b) Review and evaluate proof of loss and photos of damage at loss committee meetings; C) Obtain release and issue check. For purposes of this subsection, "small property damage claim" means a claim of $1,000.00 or less, which involves no claim of personal injury or other damages. B. Risk Management Services: ADMINISTRATOR shall provide, upon request of CITY, the following risk management services: 1. Consult with CITY staff, including the Risk Management Committee, on loss control and risk management issues; 2. Provide training to all CITY departments and staff, concerning risk management and loss control subjects; 3. Provide risk analysis of particular areas or functions of CITY government. C. Defense Costs, Attornevs Fees. and Settlement Authoritv: 1. ADMINISTRATOR shall obtain settlement authority from the CITY or, in the event of an exposure piercing the CITY's self- insured retention, jointly from the CITY and its excess insurer or excess liability pool. 10 2. Subject to CITY approval, the ADMINISTRATOR may incur on behalf of the CITY defense costs including, but not limited to attorney fees, court costs, charges for court reporters, experts, technical analyses and reviews, medical examinations, and related items as are necessary or appropriate in the judgment of ADMINISTRATOR or defense counsel for the proper preparation and defense of any case. 3. ADMINISTRATOR is expressly authorized to issue vouchers for such costs, and for settlements and judgments utilizing a designated Trust Account which is funded and maintained by the CITY. FW11 EXHIBIT "B" 3. DUTIES OF CITY: A. CITY shall be responsible for the timely payment to ADMINISTRATOR for the services provided to CITY under this agreement, pursuant to section 4. B. Processing of Liabilitv Claims: CITY shall perform the following in conjunction with the claims process: 1. Forward all verified claims to ADMINISTRATOR within five (5) working days of receipt; 2. Obtain and forward to ADMINISTRATOR a preliminary departmental report concerning the circumstances of all verified claims within a reasonable time after receipt of claim; 3. Regarding incidents that might develop into claims, CITY shall be responsible to notify and to provide ADMINISTRATOR such incident reports as are available, and to request ADMINISTRATOR to perform such precautionary investigation and report as may be appropriate. 4. CITY shall approve all legal forms used by ADMINISTRATOR in the claims process, pursuant to the California Government Tort Claims Act. C. CITY shall provide to ADMINISTRATOR all available information, staff, records or other materials necessary to the proper preparation and defense of any claim or action. D. CITY shall be responsible to notify ADMINISTRATOR to cease any claim -management activity or service with regard to any particular claim and CITY shall be responsible for payment for such activities or services until such notice is given, in the manner provided in section 15. of this agreement. E. CITY shall establish and maintain a Trust Account for the payment of all costs, fees, and settlements of liability claims. Detailed procedures for payments and deposits shall be arranged between ADMINISTRATOR and CITY's Finance Department. 12 EXHIBIT "C" 4. COMPENSATION: CITY shall pay to ADMINISTRATOR for services rendered under this agreement, according to the following schedule: All activities related to the handling of specific claims and to the providing of consulting services will be billed on a Time & Expense basis. The rates applicable for the f irst two ( 2 ) years of this agreement are as follows: A. Computer Service Fee for this contract is $3,600 per year. This fee covers the cost of computer hardware, space on the system, as well as the cost of the monthly Claims Register and Summary Sections of the computerized loss runs. The Computer Fee shall be paid monthly in the amount of $300. B. Claims Administration: (hourly) $50.00* C. Risk Management and Loss Control Consulting Fees: (hourly) $75.00, not to exceed a total of $5,000.00 in any year. D. Allocated Costs: Mileage rate $ .40/mi Color photographs (only those developed and mounted; no charge for those not used) $ 2.00/ea Verbatim transcriptions (of recorded statements) $ 5.00/pg FAX transmissions (only those originating at ICA's office; no charge for incoming FAX messages) $ 2.50/1st pg $ 1.75/ea pg Long distance telephone calls (all calls out of the 707, 415 or 510 area codes) $ .25/min Cassette tapes (for recorded statements) $ 2.50/ea. Photocopies $ .30/copy 13 Computer record searches (As incurred) Video cassettes (As incurred) Travel expenses (As incurred) Other necessary & reasonable expenses (As incurred) -Other computer reports & services (As incurred) Posting costs (As incurred) * Includes 25% for office services, 10% for secretarial and 9% for local telephone calls (within the 707, 415 and 510 area codes). E. Monthlv Statements: The ADMINISTRATOR shall submit statements to CITY on a monthly basis showing an itemized breakdown by claim or by consulting activity. Billings are payable within thirty (30) days of presentation and are subject to a late charge of 1% per month imposed on the next billing cycle. F. "CPI/C" shall mean the percentage change in the consumer price index for California, All Urban Consumers, San Francisco - Oakland -San Jose areas, compiled by the Bureau of Labor Statistics, San Francisco, over the most recent twelve month period for which figures are available. The most recently published CPI figure available sixty (60) days prior to the expiration of the first two (2) years of the agreement, shall be used for the calculation. Revised 11-13-95 14