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HomeMy WebLinkAboutC-4156 C yi5� AGREEMENT FOR GENERAL LIABILITY CLAIMS ADMINISTRATION SERVICES THIS AGREEMENT is made and entered into this day of Ti 2018, by and between the CALIFORNIA INSURANCE POOL AUTHORI ; (her,ail referred to as "CIPA"), the City of Arcadia (hereinafter referred to as "Member City"), and Carl Warren & Company (hereinafter referred to as "CONTRACTOR"). In consideration of the mutual obligations hereby assumed, CIPA and CONTRACTOR (hereinafter referred to as a "Party" or collectively as the "Parties") agree to the following: 1. TERM OF AGREEMENT The term of this Agreement shall be for a three-year period commencing 12:01 a.m. on July 1 , 2018 and ending 12:00 midnight on June 30, 2021. 2. CLAIMS ADMINISTRATION SERVICES A. General CONTRACTOR agrees to act as the representative in connection with the investigation, adjustment, processing, supervision and resolution of CIPA's general liability program, including general liability, employment practices liability, and automobile liability claims and potential claims for money damages asserted by third parties against CIPA or Member City or Covered Party thereof, for whom CIPA or Member City is alleged to be legally responsible, and agrees to provide all services set forth in this Agreement. B. Program Administration 1. Provide professional and technical staff to perform the services as described in this Agreement. 2. Inform CIPA of changes or proposed changes in statutes, rules and regulations and case law affecting its general liability claims program. 3. Assist in the development of policies and procedures relating to CIPA's general liability claims program. 4. Inform CIPA of problem areas or trends and recommend solutions. 5. Provide copies of file correspondence and documentation as requested by CIPA and/or Member City. 1 6. Maintain on-call service on a 24 hour, 7 days per week basis. This can be provided through a 24 hour phone number, a beeper or the phone numbers of key personnel who will be available. 7. Attend meetings at the request of CIPA and/or Member City. 8. Conduct seminars at the request of CIPA and/or Member City. 9. Provide information to CIPA as requested to assist in the analysis of coverage issues. 10.Report claims in compliance with Medicare, Medicaid, and SCHIP Extension Act(MMSEA) Section 111. C. Claims Administration 1. Create and enter new claim files into the computer within seventy-two (72) hours of receipt of a loss notice from the Member City. 2. Review all reports of accidents, incidents and claims for liability which are submitted to CONTRACTOR by the Member City with seventy-two (72) hours of receipt, unless immediate action is required. 3. Contact claimants within twenty-four (24) hours of receipt of a claim and maintain appropriate contact with them until the claim is closed, unless otherwise directed by CIPA or the Member City. 4. Obtain two competitive estimates of automobile damage when the loss is under $1,000. If over this amount, engage the services of a professional appraiser. 5. Review the adequacy of reserves on all active cases at least every ninety(90) days. 6. Provide first Investigative Report within thirty (30) days of receipt of claim to Member City. Send report to CIPA General Manager when claim exceeds designated limit. 7. Provide clear and concise narrative reports when recommending rejection or settlement of a claim, when claim is going to trial, or when other significant events occur. 8. Process payments within authority level within twenty (20) business days of receipt. 9. Review vendors for appropriateness of work and cost-effectiveness. 2 10.Calendar all files at appropriate intervals and no less frequently than sixty (60) days to allow for timely completion of required activity. 11.Maintain reserves on all files that accurately reflect liability and change reserves as new information is received. Establish and follow procedures to review reserves for accuracy. 12.Review reserve recommendations with CIPA General Manager when claims exceed the Member City's self-insured retention. 13.Maintain content of all paper files in chronological order with correspondence in the designated section. Portions of a file shall not be maintained in multiple locations. The entire file shall be maintained in one location and available for review within three days of request. 14.Clearly and concisely document action taken on claims. 15.Return telephone calls within twenty-four (24) hours. If CONTRACTOR'S staff member called is not available within this time frame, another designated staff member shall return the call. 16.Respond to emails within forty-eight (48) hours, unless an immediate response is required. If CONTRACTOR's staff member does not have the Information being requested at the time they respond, the response should include a date by which they will provide the requested information. 17.Notify excess carriers of claims meeting excess reporting requirements and follow-the reporting guidelines of all excess carriers. D. Investigations 1. Within fourteen (14) days of receipt of claim, unless otherwise requested, take statements of facts from claimants when not represented by an attorney. Statements will be preserved by recording or taking hand written signed statements. 2. Further investigate claims where the initial review indicates that it is warranted. Further investigation may include on-site investigation, photographs, interviewing witnesses and taking signed or recorded statements, verification of damage or loss, taking measurements, obtaining maps/diagrams, obtaining medical releases, police reports, internal operations investigations, paramedics reports, marine department reports, building permits, or other records as required. 3 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. Report bodily injury cases to the Index Bureau. 5. Investigative assignments to outside vendors will only be made with approval from CIPA or the Member City. E. Litigation Management 1. Provide Cities and CIPA General Manager with a transmittal letter outlining the status of the case, results of investigations, primary issues, requested action and any documentation within fourteen (14) days of receipt of lawsuit. 2. Assist trial attorney in preparation of litigation and negotiation of settlements at request of CIPA or Member City, and provide trial attorney with all necessary documentation. 3. Assist trial attorney in answering interrogatories. 4. Obtain a fully executed release on all settlements and dismissals. 5. Process any claim or potential claim for settlement in accordance with instructions and policies of CIPA or any municipal member thereof for settlement of such claims, in accordance with the California Government Code. 6. Attend mandatory and voluntary settlement conferences at request of CIPA or Member City. 7. Attend mediation or arbitrations as requested. 8. Assist Member Citys' designated representative in small claims actions. 9. As Litigation Manager, oversee and implement Litigation Management Guidelines, including billing guidelines. F. Subrogation Place the tortfeasor on notice of CIPA'S or Member City's subrogation rights. 4 G. Statistical Reports Submit to Member City and CIPA loss reports within 10 days after the end of the month. The following reports will be e-mailed and/or mailed as requested to Member Cities: • Detail Loss Analysis • Loss Analysis Summary • Check Register The following outlines reporting requirements to CIPA, which may be revised from time to time. -11 TYPE OF REPORT FREQUENCY 1 Open Claim Listing by policy year. The Monthly paid, outstanding, and incurred must be totaled for each claim and each policy year. Each policy year should Include the number of open claims. A grand total for all years should be provided. Provide in excel format. 2 Summary of Open & Closed Claims by Monthly policy year: The report should contain the number of open and closed claims, paid, outstanding and total incurred for each policy year and grand total for all years. Provide in excel format. 3 Open & Closed Claims Listing by policy 6/30 and 12/31 year: The paid, outstanding, and incurred must be totaled for each claim and each policy year. The total for each policy year should include the number of open and closed claims. A grand total for all years should be provided. Provide in excel format. CONTRACTOR shall provide loss data to the CIPA and Member City actuaries as requested. CIPA and Member City reserves the right to request additional reports required to manage the program. 3. CIPA RESPONSIBILITIES CIPA or any Member City shall provide CONTRACTOR with copies of all relevant documents upon request and without charge and will make available employee(s) for interview by CONTRACTOR at reasonable times concerning any Investigation of a claim or incident. If Member City elects to settle without 5 investigation or adjustment services of CONTRACTOR, shall provide CONTRACTOR with an Informational report and a copy of the release and settlement. 4. ALLOCATED EXPENSES CIPA or Member City agree to pay for the cost of all extraordinary investigative services where expert and professional assistance is required, such as professional photography, independent medical examinations, professional engineering services, and laboratory services. These services will be billed to the Member City incurring such costs. CONTRACTOR shall order such services only upon written authorization of the General Manager or Member City's designated representative. Such authority may be given orally where such services are urgently required. 5. FEES A. Flat Annual Fee The flat fee shall be as follows. Mileage is included in the flat annual fees: • 7/1/18 to 6/30/19 $20,000 • 7/1/19 to 6/30/20 $21,000 • 7/1/20 to 6/30/21 $21,000 The flat fee encompass all field investigations, attendance at settlement conferences, mediations and trials, and all claim adjusting and litigation management services performed from the office including file creation, telephone contacts, telephone investigation, reporting and settlement negotiations. B. Allocated Loss Adjustment Expenses In addition to the above service fees, and subject to the client's prior written approval, the client agrees to pay all allocated loss adjustment expenses as defined below. 1. Fees to attorneys for claims in suit and for representation at hearings or pre-trial conferences 2. All court costs, court fees and court expenses 3. Fees for service of process 4. Costs of undercover operative and detective services 5. Costs for employing experts for the preparation of maps, professional photographs 6 6. Accounting, chemical or physical analysis, diagrams and any other type of expert used in the preparation of litigation and used on a one-time basis to resolve disputes 7. Costs for independent medical examinations and bill review, evaluations for rehabilitation (vocational or physical), pre-certification activities, utilization reviews and other medical cost containment measures to determine the extent of the client's liability 8. Costs of legal transcripts of testimony taken at coroner's inquests, criminal or civil proceedings, including court reporter fees 9. Costs for copies of any public records and medical records 10.Costs and expenses of subrogation when referred to outside attorneys 11.Excess expenses incurred on salvaged vehicles, where costs exceed value 12.Cost of automobile appraisals 13.Bank service fees, check stock printing costs, and any other related fees to any fund account utilized for the payment of claims for the client 14.Filings with the Index Bureau, NATE, or PILR, or other regulatory filings 15.Costs for certified mail, special delivery charges, or other extraordinary expenses when requested by the client or justified by circumstances beyond our control C. MMSEA Section 111 Mandatory Reporting The above fees include reporting in compliance with MMSEA Section 111. 6. TERMINATION OF AGREEMENT Either Party may terminate this Agreement without cause at any time by submitting 60 days prior written notice of intention to terminate; provided, however, that should CIPA determine not to renew this Agreement on any annual renewal date, no advance notice of termination need be given. The CONTRACTOR shall not be required to perform any of the services specified in paragraph 2 beyond the date of termination and all fees owed to the CONTRACTOR by CIPA shall be paid on a pro-rata basis up to the date of termination. 7. NOTICES Any notices required under this Agreement shall be sent to the Parties addressed as follows: CIPA Janet D. Kiser, General Manager 366 San Miguel Drive, Suite 312 Newport Beach, California 92660 CONTRACTOR Carl Warren &Company 770 South Placentia Avenue Placentia, CA 92870 8. INDEMNIFICATION CIPA and/or Member City and CONTRACTOR agree to defend, indemnify and hold harmless each other with respect to any and all claims, costs, damages and expenses (including reasonable attorneys' fees), which are related to or arise out of the negligent or willful performance or nonperformance by the indemnifying party of any functions, duties or obligations of such party under this Agreement. 9. INSURANCE REQUIREMENTS CONTRACTOR shall provide a copy of a Certificate of Insurance for the following: A. Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office °occurrence° form CG 0001, with minimum limits of at least $1,000,000 per occurrence. B. Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering °Any Auto' (Symbol 1) with minimum limits of $1,000,000 each accident. (If the CONTRACTOR does not own any company vehicles, the requirement may be satisfied by providing a non-owned auto endorsement to the Commercial General Liability policy.) C. Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. D. Professional Liability: Professional Liability insurance with minimum limits of$2,000,000 per occurrence. Covered Professional Services shall specifically include all work to be performed under the Contract. If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement. 8 E. Fidelity Bond: Fidelity Bond with a minimum limit of $2,000,000 per occurrence applied exclusively to CIPA and the Member Cities. F. Endorsements: Required insurance polices shall not be in compliance if they include any limiting endorsement that has not been submitted to CIPA for approval. (1) The policy or policies of insurance required by 9.A. I General Liability and 9.B. Automobile Liability shall be endo to provide the following: (a) Additional Insured: CIPA and the Member Cities shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Contract. (b) Primary and Non-Contributing Insurance: This insurance shall be primary and any other insurance, deductible, or self- insurance maintained by the indemnified parties shall not contribute with this primary insurance. (c) Cancellation: The policy shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) The policy or policies of insurance required by Section 9.C. Workers' Compensation shall be endorsed, as follows: (a) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against CIPA and Member Cities. (b) Cancellation: The policy or policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (3) The policy or policies of insurance required by 9.0. Professional Liability shall be endorsed, as follows: (a) Cancellation: The policy or policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. G. Waiver of Subrogation: Required insurance coverages shall not prohibit Contractor from waiving the right of subrogation prior to a loss. Contractor shall waive all subrogation rights against CIPA and the Member City. H. Evidence of Insurance: The Contractor, concurrentiy with the execution of the contract, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements. The certificates and endorsements for 9 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 CIPA. If such coverage is cancelled or reduced, CONTRACTOR shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the CIPA evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. I. Acceptability of Insurers: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 10. CONFLICT OF INTEREST In the event a third-party claimant or a cross-complainant is also a client of CONTRACTOR and there is a dispute as to the thirty-party claimant or cross complainant's liability, the CONTRACTOR shall immediately notify CIPA for directions on handling of the claim. 11. AUDIT CONTRACTOR agrees to cooperate with CIPA in making any and all claim fdes and records available to CIPA for audit by CIPA, the Member City, or CIPA appointed representatives. 12. MMSEA REPORTING All penalties assessed for failure to comply with reporting requirements under MMSEA Section 111 shall be paid, whether directly or through reimbursement, by the party responsible for the assessment of the penalty. If either party disputes the liability for payment of the penalty, the parties shall negotiate to resolve the dispute. If the dispute is not resolved within 30 days after notice to both parties of the penalty, then such dispute shall be submitted to arbitration for determination of the party responsible for the assessment and payment of the penalty. The provisions of this Article shall survive any termination of this Agreement. 13. RECORDS A. All claim files, records, reports and other documents and materials pertaining to CIPA claims including all computerized data pertaining to CIPA, the Member Cities, and their claims, together with the format thereof, shall be the property of CIPA. CONTRACTOR shall deliver such records to CIPA, its designee, or the Member Cities, as requested by CIPA, upon termination of this Agreement. CONTRACTOR shall not Ia charge for any activities related to this delivery obligation. This obligation shall survive the termination of this Agreement. CONTRACTOR shall maintain closed files for seven years after the date of closure. B. CIPA and/or Member Cities reserve the right to inspect and audit CONTRACTOR'S records relevant to CIPA's account at any time upon giving reasonable notice. 14. PROHIBITION AGAINST TRANSFERS CONTRACTOR shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly, or indirectly, by operation of law or otherwise. Any attempt to do so shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 15. WAIVER A waiver by CIPA 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. 16. ENTIRE CONTRACT This instrument contains the entire Agreement between the Parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this instrument shall be of no force or effect. Such representations or modification shall be made in writing. 17. SEVERABILITY If any provision of this Agreement is held by a competent court to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. The validity of this Agreement and of any of its terms and provisions shall be interpreted pursuant to the Laws of the State of California. 18. INDEPENDENT CONTRACTOR The relationship of CONTRACTOR and CIPA established by this agreement is that of independent contractors, and nothing contained in this agreement shall be construed to establish an employer/employee relationship or to constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a Joint and common undertaking. CONTRACTOR, its agents and employees are representatives of CIPA only for the purpose of administering CIPA's general liability claims program as set forth in this Agreement, and has no power or authority as agent, employee, or in any other capacity to represent, act for, bind or otherwise crease or assume any obligation on behalf of CIPA for any purpose whatsoever, except as specifically required to perform CONTRACTOR'S obligations under this Agreement. 18. SELECTION OF PERSONNEL CIPA shall maintain final approval in the selection of staff assigned to CIPA's account and the right to request new staff if the service is unacceptable to CIPA for any reason. Examiners assigned to the account must have a minimum of five years full-time experience as a General Liability examiner. 20. CLAIMS COMMITTEE MEETINGS AND MEETINGS WITH CITIES The Litigation Manager will prepare a summary of those claims on CIPA'S 'Watch List" and present at Quarterly Claims Committee Meetings. Upon request, the examiner(s) will be available for meetings scheduled with the Member City or CIPA to review claims. 21. VENDORS All services provided by outside providers/vendors shall be approved by CIPA or Member City and billed at CONTRACTOR'S actual cost with no "mark-up". 22. CONFIDENTIALITY CONTRACTOR shall treat information, reports and analyses obtained or developed pursuant to this Agreement as confidential. Prior written consent from CIPA shall be required before any information, in any format, is disclosed to any third party. CONTRACTOR shall produce, maintain and dispose of all such information reports and analyses in a manner to guarantee reasonable safeguards to such confidentiality. 23. AGREEMENT NOT TO DISCRIMINATE Consultant shall comply with all state and federal laws and regulations applicable to the performance of services under this Agreement, including California Government code section 7550. 12 24. THIRD PARTY BENEFICIARIES CIPA and CONTRACTOR intend to benefit the Member City through the execution of this Agreement and agree that the Member City may enforce any obligation of CONTRACTOR set forth herein. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in, ;14„c. e..1 County, California as of Au ust-- YT2018. I J 2.0/ 8".. California Insurance Pool Authority By: �-b �4 Glevy ' neral Manager Date: ,y'/361/ . Carl Warren & Company By �\ Chief Operating Officer Date: August 27, 2018 13