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HomeMy WebLinkAbout10 - Property & Casualty Broker - Broker of RecordCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 December 6, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Human Resources, Terri L. Cassidy, HR Director, (949) 644 -3303, tcassidy @newportbeachca.gov Lauren Farley, HR /Risk Management, (949) 644 -3302 Ifarley @newporbeachca.gov SUBJECT: Property & Casualty Broker— Selection of Broker of Record Issue: The current Property and Casualty Broker of Record contract is expiring. Staff conducted a Request for Proposal (RFP) for broker services over the past three (3) months. 9T,11uL�TFRM Council approval of the Property and Casualty Broker of Record with Alliant Insurance Services and the Professional Services Agreement (PSA) (Attachment A) with fees not to exceed $90,000 annually for three (3) years effective 12/1/10. The City also has the right, at its sole discretion, to extend the Agreement to a fourth and fifth year by exercising options per Exhibit B of the PSA. Discussion: The City purchases a broad range of property and casualty insurance coverage to protect its assets through a licensed broker in the state of California. This coverage includes: All Risk Property (including Boiler and Machinery), Earthquake & Flood, Crime, Fiduciary, Watercraft, Excess Workers Compensation, Excess General Liability and Pollution Liability with a renewal date of 3/1/2011. The oil well bonds are the exception and renew on the calendar year. In addition to being a full service City, Newport Beach has additional exposures with its beaches, oil wells, reservoirs and protected wildlife and lands. Every renewal cycle the City requires the broker to re- evaluate the City's risks and look at all coverage options in order to better protect the City and for the best price. Property and Casualty Broker of Record Council Agenda — December 14, 2010 Page 2 of 4 Risk Management released the RFP for broker services and received 6 responses from the following firms: Alliant Insurance, Aon Hewitt, Arthur J. Gallagher, Marsh, Wells Fargo and Brown & Brown (incumbent). The annual fees quoted ranged in price from $50,000 to $189,000. The written proposals were evaluated revealing a close scoring too narrow to eliminate any one vendor from the oral interview process. All six firms were additionally scored on their oral interview by a panel consisting of one internal Risk Management staff member and four outside agency Risk Management professionals. The written evaluation and oral interviews rated the firms on the firm qualifications and experience with municipal risks; the qualifications and experience of the individuals that would be assigned to the City's account; the capabilities of the firm to provide the scope of services required by the City (including their information systems technology and value added services /expertise); the quality of their conceptual approach to marketing and servicing the City; and their proposed fees. Based on the written and oral evaluations, Alliant Insurance Services and Brown & Brown were selected as the top two candidates. These two firms completed a second interview with the full Risk Management staff and HR Director. After a thorough RFP process and complete reference check, Alliant Insurance Services was the successful vendor. They have extensive experience with municipalities, more depth of resources and expertise to compliment the City's internal Risk Management program and access to municipal pooled programs that could provide additional savings in premium dollars with the possibility of broader coverage forms and savings in annual broker fees of $19,000 less than the City is currently paying. All of their experience, knowledge and expertise will be used immediately as the City's next renewal process begins this month. Environmental Review: Not applicable. Public Notice: Not applicable. Funding Availability: Funds which cover the recommended expenditures are in the Internal Services Budget — Insurance Reserve Fund 6010 -8714 and 6020 -8714. PM by: Sheri Anderson, HR Supervisor Property and Casualty Broker of Record Council Agenda — December 14, 2010 Page 3 of 4 Subrp�itted by: ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH ALLIANT INSURANCE SERVICES, INC. FOR PROPERTY & CASUALTY BROKER OF RECORD SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this 1st day of December, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and Alliant Insurance Services, Inc. an Insurance Brokerage whose address is 1301 Dove Street, Ste. 200, Newport Beach, California, 92660 ( "Consultant "), 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 is purchases property and casualty insurance coverages to protect the City and its assets from losses occurring in the course of its operation. This activity is conducted by licensed insurance brokers via contract approving them as the City's Broker of Record and authorized to act on the City's behalf for such activity. C. City desires to engage Consultant to be the City's Property & Casualty Broker of Record ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Michael Simmons. F. 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 A reement shall commence on the above written date, and shall terminate on the 30 n day of November, 2013, unless terminated earlier as set forth herein. The City and Consultant may mutually agree to extend the Agreement for two (2) additional one (1) year terms unless either party provides thirty (30) days written notice that the Agreement shall terminate at the end of any term. 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 ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 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 to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator 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. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a flat fee 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 Ninety Thousand Dollars and no /100 ($90,000), per year, for the first three years 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. 4.1 City shall pay Consultant quarterly by invoice beginning December 1, 2010. City shall pay Consultant no later than thirty (30) days after approval of the quarterly invoice by City staff. Professional Services Agreement Page 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 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. Changes in Services. The Fee is subject to adjustment if City creates a new Program other than those Programs listed in Exhibit A, requests a change in Service or if the City's size or organization changes to alter the time involved in the Service. Exclusions. Commissions for Special Events, Notary Bonds and Vendor /Contractor Liability Programs are not included in the annual Fee or Compensation, as coverage is provided to third party individuals. Disclosures Exclusions. Commissions for Special Events, Notary Bonds and Vendor /Contractor Liability Programs are not included in the annual Fee or Compensation, as coverage is provided to third party individuals. Transparency and Disclosure. During the time of this Agreement, Consultant will annually disclose any Commissions received by Consultant in connection with any insurance placements on behalf of City under the Consultant's "Transparency and Disclosure" policy, a copy of which is made available upon request. Pursuant to its policy, Consultant will conduct business in conformance with all applicable insurance regulations and in advancement of the best interests of its clients. In addition, Consultant's conflict of interest policy precludes it from accepting any form of broker incentives that would result in business being placed with carriers in conflict with the interests of Consultant's clients. Other Alliant Services. In addition to the Compensation that Consultant receives, its related entity, Alliant Specialty Insurance Services (ASIS) may receive compensation from Consultant and /or a carrier for providing underwriting services. The financial impact of the compensation received Professional Services Agreement Page 3 by ASIS is a cost included in the premium. Additionally, the related entities of Alliant Business Services (ABS) and /or Strategic HR may receive compensation from Consultant and /or a carrier for providing designated, value -added services. Services contracted for by the City directly will be invoiced accordingly. Otherwise, services will be provided at the expense of Consultant and /or the carrier. Taxes and Fees, Third Party Brokers and Indirect Income Surplus Lines Fees and Taxes. In certain circumstances, placement of insurance services made by Consultant on behalf of City, with the prior approval of City, may require the payment of surplus lines assessments, taxes, and /or fees to state regulators, boards, and associations. Such assessments, taxes, and /or fees will be charged to City and identified separately on invoices covering these placements. City shall be responsible for all such assessments, taxes, and fees, whether or not separately invoiced. Consultant shall not be responsible for the payment of any such fees, taxes, or assessments, except to the extent such fees, taxes or assessments have already been collected from City. Third Party Brokers. Consultant may determine from time to time that it is necessary or appropriate to utilize the services of third party brokers (such as surplus lines brokers, underwriting managers, London market brokers, and reinsurance brokers) to assist in marketing the City insurance program. Subject to the provisions herein, these third party brokers may be affiliates of Consultant (e.g., other companies of Consultant that provide services other than those included within the Scope of Services of this Agreement), or may be unrelated third party brokers. Compensation to such third party brokers will be paid by the insurance company out of paid insurance premiums. Indirect Income. "Indirect Income" includes such items as insurance carrier contingency arrangements. Consultant will not accept these compensation incentives from insurers, including contingent commissions, market service agreements (MSA), volume -based commissions incentives and rebates on business placed on behalf of City within the Scope of Services of this Agreement. 5. PROJECT MANAGER 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 Rennetta Poncy and Michael Simmons to be its Project Manager(s). Consultant shall not remove or reassign the Project Managers 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. Professional Services Agreement Page 4 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. 6. ADMINISTRATION This Agreement will be administered by the Human Resources Department. Lauren Farley, HR/Risk Management Administrator, or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. 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. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in 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 Professional Services Agreement Page 5 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, or 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 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, attorney's 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 and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 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 attorney's 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 the 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. 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 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 or to exercise a measure of control over Consultant shall mean only Professional Services Agreement Page 6 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 and /or his /her duly authorized designee 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof 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. 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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 Professional Services Agreement Page 7 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. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii, General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than ten million dollars ($10,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the 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 for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of ten million dollars ($10,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Professional Services Agreement Page 8 i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers 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 and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. 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. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. 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. F. Additional 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. 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 cotenancy, which shall result in changing the control of Professional Services Agreement Page 9 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 orjoint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (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. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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. 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 authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Professional Services Agreement Page 10 20. RECORDS Consultant shall keep records and invoices in connection with the Work 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 his /her 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 paragraph 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. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Professional Services Agreement Page 11 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 All notices, demands, requests or approvals 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attention: Sheri Anderson Human Resources Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3307 Fax: 949 - 723 -3509 canderson@newportbeachca.gov All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Rennetta Poncy Alliant Insurance Services, Inc. 1301 Dove Street, Suite 200 Newport Beach, CA 92660 Phone: 949 - 756 -0271 Fax: 949 - 756 -2713 rponcy @alliantinsurance.com 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 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 seven (7) calendar days, or if more than seven (7) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within seven (7) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such Professional Services Agreement Page 12 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. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving sixty (60) 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. 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. 29. 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. 30. 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. 31. 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. 32. 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. Professional Services Agreement Page 13 33. 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. 34. 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. 35. 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. 36. 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 of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement Page 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: M tte D. uchamp Assistant i Attorney ATTEST: By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor Keith Curry CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates A08 -00093 5.13.10 Professional Services Agreement Page 15 CITY OF NEWPORT BEACH EXHIBIT Scope of Services Outline in your proposal the services your firm will provide. If certain services are to be provided through an insurer, other broker or independent contractor, explain in detail what services each will provide and how all services will be coordinated. Service requirements for City's Insurance Broker of Record include but are not limited to the following: Administrative Requirements 1) Meet with the City's Risk Management staff no less than quarterly to discuss insurance questions, concerns and /or trends that may affect the City; 2) Attend occasional meetings with City management or other persons as requested; 3) Submit an annual stewardship report, including a summary of past activity and action plans (anticipated goals) for the coming contract period prior to the beginning of each year of service, including at a minimum: • Insured program earned premiums and incurred losses by year by coverage line, • Anticipated renewal terms and conditions and other indications of market conditions, trends and anticipated changes, • Identified problem areas such as claim handling, safety hazards, uninsured risks, etc., • Recommendations for improved program design, • Services performed and planned, • Accounting of all income received on this account, including income to affiliates, subsidiaries and parent organizations, and the method by which fees are calculated (for charges other than base fee); 4) Maintain confidential all information provided by the Broker pursuant to the contract, and return any written, computer - generated or other tangible documentation or proprietary information to City upon request or at the termination of the contract; Broker shall not permit reproduction or use of confidential information except as authorized by the City. Documents generated, provided or prepared by Broker on behalf of the City are the property of the City and must be turned over to the City upon request in the form(s) requested (i.e.. on diskette, paper, or otherwise); 5) Inform City immediately of any proposed changes of the individuals handling City's account and the qualifications of the prospective individuals. Such changes shall be made subject to agreement with City; 6) Be knowledgeable of the needs of the City and be adept in identifying and measuring risks of a municipality; REQUEST FOR PROPOSAL 7 CITY OF NEWPORT BEACH EXHIBIT A 7) Maintain accurate claim data on an accident date basis and provide City with a quarterly status report; 8) Service insurance requests (e.g., issuing certificates of insurance, endorsements, etc.) as needed; 9) Review certificates of insurance, in addition to contract insurance provisions if necessary, for City contracts; approve or provide department checklist for corrections until certificate complies and approved; 10) Keep current and provide to City a complete listing of all insurance policies and all details pertinent to the policies in the form of a "policy digest" 11) Cooperate in any transition to another broker at the expiration of the five -year contract. Broker will be required to deliver all data /documents as set forth herein. Payment of final monthly invoice shall be held until transfer of all data /documents is completed to the satisfaction of the City. Marketing and Negotiating Insurance Coverage 12) Continually monitor and analyze City's operations and loss exposures, 13) Perform all on -site inspections necessary to identify exposures; 14) Recommend coverages consistent with the exposures to provide the highest level of coverage at the least possible cost to the City; 15) Collect and maintain for future use all the data necessary, and prepare professional insurance proposal submission packages for proper marketing of various coverages; 16) Market the insurance needs of the City, preparing underwriting specifications and bid packages for all insurance placements, including renewals, 17) Negotiate with underwriters on terms and conditions to obtain the most beneficial and cost - effective coverages available to the City, and include the Risk Management in negotiations; 18) Provide, as requested from time to time by the City, insurance quotations for additional insurance coverages; 19) Verify the rates and premiums for accuracy; determine that rating bureau and underwriter rates are correct; 20) Check wording for accuracy on new policies, binders, certificates, endorsements or other documents when they are received, verify that all negotiated coverage enhancements are provided and obtain revisions in such documents when needed; 21) Promptly submit originals of all policies and endorsements to City. 22) Oversee and coordinate all services provided by underwriters and insurance carriers on behalf of the City; 23) Assure that all coverages are placed with financially responsible insurers that meet minimum rating requirements as approved by Risk Management, REQUEST FOR PROPOSAL 8 CITY OF NEWPORT BEACH EXHIBIT A 24) Use California - admitted insurers unless there are compelling reasons (e.g., significant cost savings, financial security) to use non - admitted insurers; Insurance Consultative /Advisor Services 25) Be readily available to answer insurance related questions /concerns; 26) Make a good faith effort to keep Risk Management informed of all market developments which might affect the City's access to or cost of insurance; 27) Assist Risk Management in reviewing purchase order agreements, leases, and other contracts to determine if a risk or exposure can be transferred or avoided; 28) Work with, and provide assistance to the City on loss control programs; 29) Participate in and advise on claims and litigation management and analysis and assist in the adjustment and settlement of claims and losses; 30) Review quarterly loss runs of all claims made against the City and present your findings and recommendations in a format acceptable to Risk Management, 31) Electronically maintain property database /books, which contain a pictorial catalog of building valuations for all buildings owned by the City; Conduct extensive inspection of all City locations every three years and compute valuations; 32) Review new construction plans as needed and make recommendations on fire protection systems, precautions to take during construction and liability risks and exposures; Review and comment on insurer loss control activities and recommendations Consultant agrees to provide services to the following Programs of City: • Property • Difference in Conditions • Fidelity Insurance • Workers' Compensation • Watercraft • Crime • Excess Public Liability • Pollution • Oil Well Blanket Bond • Builders Risk • Special Event REQUEST FOR PROPOSAL 9 EXHIBIT B RFP Property & Casualty Broker of Record Alliant Insurances Services, Inc. Schedule of Billing Rates Flat Fee: Year 2011 $ 90,000 Year 2012 $ 90,000 Year 2013 $ 90,000 As mutually agreeable, two 1 Year extensions to this Agreement are included at a Fee increase not to exceed 3% each year.