HomeMy WebLinkAbout17 - General Liability Third Party Administrator — Approval of Professional Services Agreement with AdminSure, Inc.PORT CITY OF
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_ i NEWPORT BEACH
City Council Staff Report
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June 11, 2019
Agenda Item No. 17
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Barbara J. Salvini, Human Resources Director - 949-644-3300,
bsalvini@newportbeachca.gov
PREPARED BY: Barbara J. Salvini, Human Resources Director
PHONE: 949-644-3300
TITLE: General Liability Third Party Administrator — Approval of Professional
Services Agreement with AdminSure, Inc.
ABSTRACT:
As a self-insured public entity, the City contracts with a third party administrator (TPA) for
general liability claims adjusting services. The role of the TPA is to provide overall
program administration of the general liability claims, including investigation,
correspondence with claimants, and assistance with litigation management as needed.
With the City's current agreement expiring on June 30, 2019, staff initiated the Request
for Proposal process to review the TPA options available to the City.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve a five-year Professional Services Agreement with AdminSure, Inc. for Third
Party General Liability Claims Administration Services at a not -to -exceed amount of
$565,015.34, and authorize the Mayor and City Clerk to execute the Agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this service. It will be expensed
to the General Liability Internal Service Fund Account No. 7517510-891004.
DISCUSSION:
The City's current agreement with Carl Warren & Company for general liability claims
administration services expires on June 30, 2019. In anticipation of the current
agreement's expiration, staff issued a Request for Proposal solicitation.
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General Liability Third Party Administrator — Approval of
Professional Services Agreement with AdminSure, Inc.
June 11, 2019
Page 2
RFP Process
Using specifications provided by the Human Resources Department, the City's
Purchasing staff issued a formal Request for Proposal ("RFP") solicitation for General
Liability Third Party Administration services. The RFP was posted on the City's public
procurement system (PlanetBids) and distributed directly to known providers of these
services. The RFP yielded three responses from the following proposers:
• AdminSure, Inc. ("AdminSure")
• Carl Warren & Company ("Carl Warren"); and
• George Hills Company ("George Hills").
Proposal Review & Interviews
The evaluation panel assigned to this RFP reviewed each proposal and rated them on
technical factors such as:
• Experience in providing General Liability Third Party Administrator services;
• Relevant project history and service to other governmental clients;
• Qualifications of the proposer and the project team; and
• Project approach and subject matter expertise.
The panel invited all three proposers to participate in an interview and each group was
given an opportunity to provide the panel with additional detail regarding the services to
be performed and their suitability for award. The interviews were also scored by the
evaluation panel and those scores contributed toward the overall technical assessment
of each proposer.
Concurrently, the City's Purchasing staff compared the cost submittals from each
proposal. Since the proposers were asked to provide a fixed annual fee for performance
of these services, the basis used for comparison was each proposer's five-year cost,
factoring in one-time costs such as transition fees (if applicable) and setup fees, as well
as annual rate increases over the proposed five-year term.
The results of the evaluation panel scoring and the cost analysis can be found in the table
below:
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Max Pts.
AdminSure,
Inc.
Carl Warren &
Company
George Hills
Company
Proposal Score
40
31.57
32.90
28.64
Interview Score
20
17.13
14.47
15.67
Cost Score
(5 -Year Proposed
Cost)
40
37.58
(($565,015.34)
34.84
($609,434.00)
40.00
($530,816.00)
Total Score
100
86.28
82.21
84.30
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General Liability Third Party Administrator — Approval of
Professional Services Agreement with AdminSure, Inc.
June 11, 2019
Page 3
Included in the scope of work is the expectation that the adjuster, when requested, travel
to different claims -related matters, including, but not limited to, mediations, settlement
conferences, trials or incident scenes to assist with claims investigations. AdminSure and
Carl Warren included these travel related costs in their annual flat rate fee, but George
Hills proposed to bill this expense at a rate of $90 per hour. The proposed five-year cost
identified in the table above for George Hills includes a travel expense cost based on an
average of the number of travel -related hours the City's adjusters have used over the last
three years. However, this figure is only a guesstimate and the actual number of hours
may vary dramatically. Again, this assumption was not needed for AdminSure or Carl
Warren, as adjuster and travel -related expenses are included in their respective flat rates
and projected five-year costs.
Conclusion of RFP Process and Panel Recommendation
Following this procurement evaluation and review process, the evaluation panel identified
AdminSure, Inc. as the highest -qualified proposer and most effective provider of General
Liability Third Party Administrator services. AdminSure demonstrated a methodology for
administering the General Liability Claims program consistent with the City's needs, and
emphasized their capability of smoothly transitioning the current files to their system.
Additionally, the proposed pricing was competitive and offered as a flat rate fee,
eliminating the uncertainty associated with the need to estimate costs in order to
determine the contract amount.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Professional Services Agreement with Adminsure Inc.
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH ADMINSURE, INC. FOR
GENERAL LIABILITY THIRD PARTY ADMINISTRATION SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 1st day of July, 2019 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
ADMINSURE, INC., a California corporation ("Consultant"), whose address is 3380
Shelby Street, Ontario, California 91764, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide general liability third party
administration services ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
11 940Lyi
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2024, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
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the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a flat rate fee, not -to -exceed
basis in accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Five Hundred Sixty Five
Thousand Fifteen Dollars and 34/100 ($565,015.34), without prior written authorization
from City. No billing rate changes shall be made during the term of this Agreement without
the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. City shall pay Consultant no later than thirty (30)
calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
C ity.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
Adminsure, Inc. Page 2
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5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Michael Reed to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City_ City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
This Agreement will be administered by the Human Resources Department. City's
Human Resources Director or designee shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
Adminsure, Inc. Page 3
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8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
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9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim. collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
V,I57:1a:.117:1.111idi1i•11117_TiI-EGIN
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
Adminsure, Inc. Page 4
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shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement orfor other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
Adminsure, Inc. Page 5
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
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All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
Adminsure, Inc. Page 6
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
Adminsure, Inc. Page 7
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24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seg., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Human Resources Director
Human Resources Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Alithia Vargas -Flores
Adminsure, Inc.
3380 Shelby Street
Ontario, CA 91764
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
Adminsure, Inc. Page 8
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identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
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28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 5'.?1- I'�
in
ron C. Harp
y Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bw
�•� t� Diane B. Dixon
Mayor
CONSULTANT: Adminsure, Inc., a
California corporation
Date:
Bv:
Alithia Vargas -Flores
Chief Executive Officer
Date-
By.-
Ashley
ate:
By:Ashley Sells
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide Third Party Administrator ("TPA") services related to the City's
General Liability ("GL") program, in accordance with the following:
Responsibilities and Provisions
1. Program Administration
1.1 Provide professional and technical staff to perform General Liability Claims
Administration services.
1.2 Represent City in all matters related to the set-up, investigation, adjustment,
processing, negotiation and resolution of liability claims against City.
1.3 Inform the City of changes or proposed changes in statues, rules and
regulations and case law affecting its general liability claims program.
1.4 Assist in the development of policies and procedures relating to the general
liability claims program.
1.5 Provide information and guidance regarding the general liability claims program
and specified claims.
1.6 Provide copies of file correspondence and documentation as requested by City.
1.7 Inform City of problem areas or trends, both potential and perceived, and
provide recommendations and/or solutions to address problem areas or trends.
1.8 Attend appointments, including but not limited to meetings, conferences, Court
appearances, and scene investigations at the request of City.
1.9 Provide 24-hour on-call service. This can be accomplished by providing City
with a 24-hour phone number, pager, beeper or telephone number for key
personnel. The 24-hour on-call service may include, but not limited to,
responding to an incident scene, attending meetings, and conducting
investigations.
1.10 Conduct risk management related seminars for department heads and/or City
staff at the request of City.
1.11 Maintain and store all official files for five (5) years after each respective file is
closed.
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2. Assignment of Personnel
The City must approve personnel assigned to the account. If for any reason, the services
provided by assigned personnel are unsatisfactory to the City, the Consultant shall agree
to assign replacement personnel approved by the City_
3. Claims Administration
3.1 Take in and retain claims filed against City.
3.2 Create and enter new claim files into the computer within 48 hours of receipt of
a loss notice from the City Clerk's Office.
3.3 Maintain an official file for each claim.
3.4 At the direction of the City, contact claimants or their attorneys within five (5)
business days of receipt of a claim and maintain appropriate contact with them
until the claim is closed.
3.5 Obtain two (2) competitive estimates of automobile damage when the loss is
under $1,000. If over this amount, engage the services of a professional
appraiser.
3.6 Review the status of claims and assist as directed with setting of adequate
reserves on all active cases at least every ninety (90) calendar days.
3.7 Review all claims for liability and provide first Investigative Report within thirty
(30) calendar days of receipt of claim to Risk Manager,
3.8 Provide narrative reports when recommending rejection or settlement of a claim,
or other significant events that have occurred or may occur_ Reports must be
clear and concise.
3.9 Negotiate settlements within authority limits. Funding for the payment of any
settlement is specifically excluded from this Agreement.
3.10 Obtain a fully executed release on all claim settlements and dismissals.
3.11 Obtain approval from City before agreement of a settlement above authority
limit.
3.12 Report claims in compliance with Medicare, Medicaid, and SCHIP Extension Act
(MMSEA) Section 111.
3.13 Process payments within authority level within fourteen (14) business days of
receipt.
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3.14 Review vendors, other than defense counsel, for appropriateness of work and
cost effectiveness.
3.15 Diary dates shall be established to allow for timely completion of required activity
and no less frequently than every sixty (60) calendar days. Administrator shall
monitor the timely completion of diary reviews.
3.16 Content of all files will be in chronological order with correspondence in the
designated section.
3.17 Files will clearly and concisely document action take on the claim.
3.18 Telephone calls will be returned within 24 hours. If the Consultant's staff
member called is not available within this time frame, another designated staff
member will return the call.
3.19 Emails shall be responded to within 48 hours of receipt, unless an immediate
response is required.
3.20 Written responses to requests that cannot be emailed, shall be prepared and
the hardcopy mailed within ten (10) business days of receipt, unless an
immediate response is required.
3.21 Identify and notify possible co-defendants within thirty (30) calendar days of
identification.
3.22 Tender claims to other potentially responsible parties within thirty (30) calendar
days.
3.23 Process all claims in accordance with City's instructions and policies.
3.24 Have translators available to assist with non-English speaking claimants.
4. Investigations
4.1 Within ten (10) business days of receipt of claim, unless otherwise requested by
Risk Manager, take statements of facts from claimants when not represented
by an attorney. Statements will be preserved by recording or taking hand written
signed statements.
4.2 Further investigate claims where the initial review indicates that it is warranted.
Further investigation may include, but are not limited to, on-site investigation,
photographs, interviewing witnesses and taking signed or recorded statements,
verification of damage or loss, taking measurements, obtaining maps/diagrams
from City or other sources, obtaining medical releases, police reports, internal
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operations investigations, paramedic reports, marine department reports,
building permits, or other records as required.
4.3 If an attorney is involved, direct all communication to the claimant's attorney
regarding the investigation, negotiation, and evaluation of any claims leading to
a settlement.
4.4 Report all Bodily Injury claims to Index Bureau. Conduct Index Bureau searches
for repeat claimants. Conduct additional Index Bureau searches at request of
City.
4.5 Obtain approval from City before engaging the services of an outside
investigator for an investigative assignment.
4.6 At the request of the City, investigate inverse condemnation claims.
4.7 Arrange, with prior City approval, for expert services, other than defense
counsel. Expert services include, but are not limited to, professional
photography, independent medical examinations, professional engineering
services, and laboratory services.
5. Litigation Management
The City Attorney's Office shall be responsible for managing all litigation and selecting
defense counsel. Consultant shall:
5.1 Provide City Attorney's Office with a transmittal letter outlining the status of the
case, results of investigations, primary issues, requested action, a complete
copy of the file and any documentation within fourteen (14) business days of
receipt of lawsuit with a copy to Risk Manager.
5.2 Monitor and evaluate defense counsel based on quality of work product, timely
communication of important issues, timely filings, timely written and telephone
responses, obtaining required approval, accurate billings and timely case
resolution. Deficiencies in performance will be reported to the City.
5.3 Maintain liaison with the City Attorney's Office and defense counsel and provide
such investigation as required during the entire litigation process, including but
not limited to, additional investigations for pretrial and trial that may be requested
by either the City Attorney's Office or defense counsel_
5.4 Review defense counsel bills and advise the City Attorney's Office if there are
any billing irregularities.
5.5 Maintain a copy of all outside counsel bills and track all expenditures related to
each litigation matter.
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5.6 Attend Settlement Conferences, mediation or arbitrations as requested.
5.7 Assist the City Attorney and defense counsel in preparing and/or answering
discovery as requested.
5.8 Assist City personnel in Small Claims Court actions filed by and against City,
including but not limited to, obtaining witness information, evidence, assistance
in preparing the case for trial and appearance at the trial if deemed necessary
by City.
6. Subrogation
6.1 Consultant shall: Place the tortfeasor on notice of the City's subrogation rights.
6.2 Work with the City Attorney's Office to draft the legal documents to recover
monies spent on a claim.
7. Statistical Reports
7.1 Provide specified standard loss reports within ten (10) business days after the
end of the month/quarter, and/or as agreed upon.
7.2 Provide special reports as needed by the City.
7.3 Submit monthly reports during the term of the agreement. The monthly reports
shall indicate the status and detail of every open claim assigned to Consultant,
including but not limited to, the server assigned for each claim, summary of each
loss by type, department, year, litigation status, and coded as to cause.
7.4 Consultant will enter into its computer any and all files handled in-house by City.
City will provide Consultant with all information necessary for such input.
S. Excess Insurance Reporting
8.1 Report to any excess insurance carrier(s) in accordance with policy provisions.
City will provide the names and addresses of excess insurance carriers. Provide
City with written notification that the required notice has been made to the
excess carrier within ten (10) business days of the notice of claim.
8.2 Comply and meet with any excess carrier claims administration requirements.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Consultant shall provide TPA services related to the City's GL program, as described in
Exhibit A, in accordance with this Schedule of Billing Rates:
General Liability Third Party Claims Administration Services — Flat Rate Fee
Year 1:
$109,000.00
Year 2:
$109,000.00
Year 3:
$112,270.00
Year 4:
$115,638.10
Year 5:
$119,107.24
TOTAL CONTRACT TERM:
$565,015.34
Misc. & Ancillary
Services
Data Conversion
Included —
No Additional Fee
Transition & Implementation
Included —
No Additional Fee
Online Access (All Data & Reports)
Included —
(Unlimited
Users
No Additional Fee
Number of Read -Only
All Reports & Custom/Ad Hoc Reports
Included —
No Additional Fee
MMSEA, ISOIEDEX & 1099s
Included —
No Additional Fee
Training & Development of Special Account
Instructions/Procedures
Included —
No Additional Fee
All Mileage, Reprographics, Meetings, Claims
Reviews & Checks
Included — No Additional Fee
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. if
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
The policy shall contain an affirmative coverage grant for bodily injury and
property damage emanating from the failure of the technology services or
an error or omission in the content/information provided.
E. Cyber Liability Insurance. Consultant shall maintain cyber liability insurance
with limits of not less than one million dollars ($1,000,000) per occurrence
and two million dollars ($2,000,000) annual aggregate covering (1) all acts,
errors, omissions, negligence, infringement of intellectual property. (2)
network security and privacy risks, including but not limited to unauthorized
access, failure of security, breach of privacy perils, wrongful disclosure,
collection, or negligence in the handling of confidential information, privacy
perils, including coverage for related regulatory defense and penalties. (3)
data breach expenses payable whether incurred by City or Consultant,
including but not limited to consumer notification, whether or not required
by law, computer forensic investigations, public relations and crisis
management firm fees, credit file or identity monitoring or remediation
services in the performance of services for City or on behalf of City
hereunder.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
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C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
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insurance will not be considered to comply with these requirements unless
approved by City.
F_ City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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