HomeMy WebLinkAbout09 - General Liability Third Party Administrator - Approval of PSAQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
May 28, 2024
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Barbara J. Salvini, Human Resources Director - 949-644-3300,
bsalvini@newportbeachca.gov
PREPARED BY: Caroline Hua, Assistant Human Resources Analyst - 949-644-3300,
chua@newportbeachca.gov
TITLE: General Liability Third Party Administrator — Approval of Professional
Services Agreement with AdminSure, Inc.
ABSTRACT:
As a self -insured public entity, the City of Newport Beach 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, 2024, staff initiated
the Request for Proposals process to review the TPA options available to the City.
RECOMMENDATIONS:
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 $673,228, and authorize the Mayor and City Clerk to execute the
Agreement.
DISCUSSION:
The City's current agreement with AdminSure, Inc. for general liability claims
administration services expires on June 30, 2024. In anticipation of the current
agreement's expiration, staff issued a Request for Proposals solicitation.
RFP Process
Using specifications provided by the Human Resources Department, the City's
Purchasing Division staff issued a formal Request for Proposals (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 four responses from the following proposers:
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General Liability Third Party Administrator —
Approval of Professional Services Agreement with AdminSure, Inc.
May 28, 2024
Page 2
• AdminSure, Inc. (AdminSure);
• Carl Warren & Company (Carl Warren);
• George Hills Company (George Hills); and
• American Claims Management, Inc. (American Claims Management).
Technical Evaluation — 60% A panel consisting of Human Resources Department staff
(internal and external) and the City Attorney's Office assessed each proposer on factors
such as qualifications, experience, resources and expertise with government clients.
Proposers with a technical evaluation score of less than 40 were disqualified.
Cost Review — 40% The City's Purchasing team evaluated and compared each
proposer's costs.
The results are found in the table below:
PROPOSER
TECHNICAL
EVALUATION
(Max 60)
COST
REVIEW
(Max 40)
TOTAL
SCORE
OVERALL
RANK
AdminSure, Inc.
54.00
40.00
94.00
1
George Hills Company
49.67
34.87
84.54
2
Carl Warren & Company
55.33
18.95
74.29
3
American Claims Management, Inc.
38.33 (DQ)
4
*Please note that the Total Score is +/- 0.01 points due to rounding.
The evaluation resulted in AdminSure, Inc. having the top overall proposal. AdminSure's
top score reflects its experience for administering general liability claims program
consistent with the City's needs. Additionally, an independent general liability audit report
conducted in 2022 awarded a claims handling compliance score of 99%. The consultant
has been notified of the intent to award, pending City Council approval of the proposed
professional services agreement. The prior five-year agreement was also for a term of
five years, for a total not -to -exceed amount of $565,015.34. If approved, the new
agreement also provides for a term of five years, for a total not -to -exceed amount of
$673,228, reflecting an approximate 19% increase. The proposed five-year costs for
Carl Warren & Company and George Hills Company were $1,420,919 (an over 250%
increase) and $772,250 (37% increase) respectively.
FISCAL IMPACT:
The adopted budget includes sufficient funding for this purchase. It will be expensed to
the General Liability Internal Service Fund Account in the Human Resources Department,
7517510-891004.
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General Liability Third Party Administrator —
Approval of Professional Services Agreement with AdminSure, Inc.
May 28, 2024
Page 3
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
THIRD PARTY GENERAL LIABILITY CLAIMS ADMINISTRATION SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 1 st day of July, 2024 ("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, CA 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 Third Party General Liability Claims
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:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2029, 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
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 time and expense 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 Six Hundred Seventy
Three Thousand Two Hundred Twenty Eight Dollars and 00/100 ($673,228.00),
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. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. 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
City.
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.
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Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
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.
6. ADMINISTRATION
This Agreement will be administered by the Human Resources. 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.
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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.
9. HOLD HARMLESS
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.
10. INDEPENDENT CONTRACTOR
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
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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 or for 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.
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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.
18. CONFIDENTIALITY
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.
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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.
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24. CONFLICTS OF INTEREST
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
seq., 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
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Michael Reed
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
identified by Consultant in writing as unsettled at the time of its final request for payment.
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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 of 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: 1�;/ Z 14N
i m
By: [ Wt 1
C
ion C. Harp
4 Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bv:
Will O'Neill
Mayor
CONSULTANT: ADMINSURE, INC., a
California corporation
Date:
Alithia Vargas -Flores
Chief Financial Officer,
Officer
Date:
is
Ashley Sells
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Chief Executive
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EXHIBIT A
SCOPE OF SERVICES
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SCOPE OF SERVICES
EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide Third Party Administrator ("TPA") services related to the City's
General Liability ("GU) program, in accordance with the following:
Responsibilities and Provisions
1. Program Administration
Consultant shall:
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 request of City;
1.9 Provide 24-hour on -call service. This can be accomplished by providing City
with a 24-hour phone number 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 request of City; and
1.11 Maintain and store all official files for five (5) years after each respective file
is closed.
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SCOPE OF SERVICES
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
Consultant shall:
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, and 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 clear and concise narrative reports when recommending rejection or
settlement of a claim, when claim is going to trial, or other significant events
have or will occur;
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 except
when otherwise approved by City;
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;
3.14 Review vendors for appropriateness of work and cost effectiveness;
3.15 Diary dates shall be established to allow for timely completion of required
activity, no less frequently than every sixty (60) calendar days, and the
Administrator shall monitor the timely completion of diary reviews;
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SCOPE OF SERVICES
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 taken on the claim;
3.18 Telephone calls will be returned within 24 hours, and 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; and
3.24 Have translators available to assist with non-English speaking claimants.
4. Investigations
Consultant shall:
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 -sight
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 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, and conduct additional Index Bureau searches
at request of City;
SCOPE OF SERVICES
4.5 Obtain approval from City before engaging the services of an outside vendor
for an investigative assignment;
4.6 At the request of the City, investigate inverse condemnation claims; and
4.7 Arrange, with prior City approval, for expert services, including but 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 for
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, timely
case resolution, and report any deficiencies in performance 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 Attend Settlement Conferences, mediation or arbitrations as requested;
5.6 Assist the City Attorney and defense counsel in preparing and/or answering
discovery as requested; and
5.7 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
Consultant shall:
6.1 Place the tortfeasor on notice of the City's subrogation rights; and
6.2 Work with the City Attorney's Office to draft the legal documents to recover
monies spent on a claim.
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SCOPE OF SERVICES
7. Statistical Reports
Consultant shall:
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 which 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; and
7.4 Consultant will enter into its computer any and all files handled in-house by
City, for which the City will provide Consultant with all information necessary
for such input.
8. Excess Insurance Reporting
Consultant shall:
8.1 Report to any excess insurance carrier(s), for which the City will provide the
names and addresses, in accordance with policy provisions, and 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; and
8.2 Comply and meet with any excess carrier claims administration requirements.
9-20
EXHIBIT B
SCHEDULE OF BILLING RATES
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SCHEDULE OF BILLING
EXHIBIT B
SCHEDULE OF BILLING RATES
Consultant shall provide all services in accordance with the following rates:
General Liability Third Party Claims Administration
Services — Flat Rate Fee
Year 1:
$125,063
Year 2:
$130,065
Year 3:
$135,268
Year 4:
$139,326
Year 5:
$143,506
Total Contract Term:
$673,228
Misc. & Ancillary Services
Data Conversion
Included — No additional fee
Transition & Implementation
Included —
No additional fee
Online Access (All Data & Reports)
Included —
No additional fee
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
Other Costs:
No other costs related to the pricing of this proposal are anticipated.
9-22
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.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City of Newport Beach,
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 excess/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 two million
dollars ($2,000,000) per occurrence, four million dollars ($4,000,000)
general aggregate. The policy shall cover liability arising from bodily
injury, property damage, completed 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 two million dollars ($2,000,000) per claim and four million dollars
($4,000,000) 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.
E. Cyber Liability Insurance. Consultant shall maintain cyber liability
insurance in an amount not less than two million dollars ($2,000,000)
per claim and four million dollars ($4,000,000) in the 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.
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.
If a sub -limit applies to any elements of coverage, the certificate of
insurance evidencing the coverage above must specify the coverage
section and the amount of the sub -limit.
F. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract,
then said policies shall be "following form" of the underlying policy
coverage, terms, conditions, and provisions and shall meet all of the
insurance requirements stated in this contract, including, but not limited
to, the additional insured and primary & non-contributory insurance
requirements stated herein. No insurance policies maintained by the
City, whether primary or excess, and which also apply to a loss covered
hereunder, shall be called upon to contribute to a loss until the
Contractor's primary and excess/umbrella liability policies are
exhausted.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
AdminSure, Inc. Page C-2 9-24
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City of Newport Beach, its City Council, boards and
commissions, officers, agents, volunteers, 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,
cyber liability, excess/umbrella liability and automobile liability, if
required, but not including professional liability, shall provide or be
endorsed to provide that City of Newport Beach, its City Council, boards
and commissions, officers, agents, volunteers, employees shall be
included as insureds under such policies.
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. The certificates and endorsements for each
insurance policy shall be signed by a person authorized by that insurer
to bind coverage on its behalf. At least fifteen (15) days prior to the
expiration of any such policy, evidence of insurance showing that such
insurance coverage has been renewed or extended shall be filed with
the City. If such coverage is cancelled or reduced, Consultant shall,
within ten (10) days after receipt of written notice of such cancellation or
reduction of coverage, file with the City evidence of insurance showing
that the required insurance has been reinstated or has been provided
through another insurance company or companies. City reserves the
right to require complete, certified copies of all required insurance
policies, at anytime.
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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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters
into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Consultant shall require and verify
that all subcontractors maintain insurance meeting all the requirements
stated herein, and Consultant shall ensure that City is an additional
insured on insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad
as CG 20 38 04 13.
D. 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.
E. 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.
F. 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- insurance will not be considered to comply with these requirements
unless approved by City.
G. 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.
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H. 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.
I. 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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