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HomeMy WebLinkAboutContract 44963 (2)CITY SECRETARY ������ CONTRACT r;lr�, PSA — CFW and Gulf South Risk Services, Inc. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager and Gulf South Risk Services, Inc. ("Agency"), a Louisiana corporation, acting by and through its duly authorized President. City and Agency may each be individually referred to as a "party" and collectively as the "parties." SERVICES. Agency will, with good faith and due diligence, provide the City with subrogation and claims - recovery services. In particular, Agency will perform all duties outlined and described in the Scope of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes as though it were set forth at length. The actions and objectives contained in Exhibit "A" are referred to herein as the "Services." 2 TERM. This Agreement shall commence October 1, 2013, and expire on September 30, 2016, unless terminated earlier in accordance with the provisions of this Agreement. The City shall have the option, in its sole discretion, to renew this Agreement under the same terms and conditions, for up to two, one- year periods at the City's sole discretion. 3. COMPENSATION. 3.1 Fee As full and complete compensation for all Services described above, Agency shall be paid a fee equal to twenty-five percent (25%) of the gross amount of all sums recovered by the City as a result of Agency, with Agency's compensation not to exceed Three Hundred Thousand Dollars ($300,000.00) per Contract Year, plus reimbursement of Allocated Claim Expenses as detailed below. The City shall not be liable for any additional expenses of Agency not specified by this Agreement unless the City first approves such expenses in writing. For purposes of this provision, a Contract Year is defined as the twelve month period beginning on October 1st and ending on September 30tn 3 2 Allocated Claim Expenses In addition to any fee due under Subsection 3.1, Agency shall be entitled to reimbursement for claims -adjusting expenses actually paid by Agency ("Allocated Claim Expenses"). For purposes of this provision, Allocated Claim Expenses shall consist solely of costs associated with accident investigation; background checks; credit reports; obtaining accident reports from jurisdictions other than the City; obtaining a vehicle -damage estimate from Likes Appraisal Service or other property -damage estimate from a non-affiliated, third party property inspector/adjuster if a usable estimate is not already included in the City's file; and private investigator services required to locate individuals against whom the City has a possible claim. 3.3 Structure of Payments a. The Agency will issue monthly invoices for all work performed under this Agreement. Invoices shall be submitted no later than the 10th day following the end of the month and sent to Risk Management, 1000 Throckmorton, Fort Worth, Texas 76102. Invoices are due and payable within 30 days of receipt. b. The Agency shall provide rm. oivo that outline the work performed and city 1INCRITARY rt won. Tx RECEIVED pr 1 of 18 72Bi3 recoveries achieved during the preceding month in connection with the Services, which shall generally be sufficient documentation to substantiate invoices. If the City requires additional reasonable documentation, it shall request the same promptly after receiving the above -described information, and the Agency shall provide such additional reasonable documentation to the extent the same is available. c. Reimbursement for Allocated Claim Expenses shall be paid monthly. The Consultant will submit monthly invoices for Allocated Claim Expenses under this Agreement no later than the 15th day following the end of the month. Invoices must be accompanied by receipts of other documentation evidencing Agency's actual expenditures for Allocated Claim Expenses. Invoices are due and payable within 30 days of receipt d. On full and final completion of the Services, Agency shall submit a final invoice, and City shall pay any balance due within 30 days of receipt of such invoice. e. In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion will be paid City will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until the contest has been mutually resolved. f For contested billings, the City shall make payment in full to Agency within 60 days of the date the contested matter is resolved. If City fails to make such payment, Agency may, after giving 7 days' written notice to City, suspend services under this Agreement until paid in full including interest calculated from the date the billing contest was resolved. In the event of suspension of services, Agency shall have no liability to City for delays or damages caused to City because of such suspension of services. 4. TERMINATION. 4.1. Convenience. The City or Agency may terminate this Agreement at any time, with or without cause, by providing the other party with 30 days written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Agency of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties In Case of Termination. In the event this Agreement is terminated prior to expiration of the then -current term, Agency shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination, and the City shall pay Agency for services actually rendered up to the effective date of termination. Upon termination of this Agreement for any reason, Agency shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Agency has received access to City information or data as a requirement to perform services hereunder, Agency shall return all City provided data to the City in a machine-readable format or other format deemed acceptable to the City. PSA — CFW and Gulf South Risk Services, Inc. 2 of 18 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Agency hereby warrants to the City that Agency has made full disclosure in writing of any existing or potential conflicts of interest related to Agency s services under this Agreement. In the event that any conflicts of interest arise after the execution of this Agreement, Agency hereby agrees to make full disclosure to the City in writing immediately upon learning of such conflict. 5.2 Confidential Information. Agency, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Agency shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify delete, or otherwise corrupt City Information in any way. Agency shall notify the City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised in which event, Agency shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what Information has been compromised and shall fully cooperate with the City to protect such information from being further compromised. 6. RIGHT TO AUDIT. Agency agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right, at no additional cost to the City, to examine at reasonable times any directly pertinent books documents papers and records of the Agency involving transactions relating to this Agreement. Agency agrees that the City shall have access during normal working hours to all necessary Agency facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Agency reasonable advance notice of intended audits. Agency further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Agency shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Agency shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers agents, servants, employees, contractors and subcontractors. Agency acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Agency, its officers, agents employees, servants, contractors and subcontractors. Agency further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Agency. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Agency or any officers, agents, servants, employees or subcontractors of Agency. Neither Agency nor any officers, agents, servants, employees or subcontractors of Agency shall be entitled to any employment benefits from the City. Agency shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents servants, employees or PSA — CFW and Gulf South Risk Services, Inc. 3 of 18 subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - AGENCY SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL P ERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF AGENCY, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH THE AGENCY AND THE CITY, RESPONSIBILITY AND LIABILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER P ROVIDED BY THE LAWS OF THE STATE OF TEXAS. B. INDEMNIFICATION - AGENCY HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO AGENCY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE N EGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF AGENCY, ITS OFFICERS, AGENTS, S ERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Agency shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Agency under which the assignee agrees to be bound by the duties and obligations of Agency under this Agreement. The Agency and Assignee shall be jointly liable for all obligations of the Agency under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract the subcontractor shall execute a written agreement with the Agency referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Agency under this Agreement as such duties and obligations may apply. The Agency shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE AND BONDING. Agency shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Agency, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle PSA — CFW and Gulf South Risk Services, Inc. 4 of 18 owned, hired and non -owned (c) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100 000 per disease per employee (d) Professional Liability (Errors & Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims -made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 General Requirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Agency has obtained all required insurance shall be delivered to the City prior to Agency proceeding with any work pursuant to this Agreement. 10.3 Employee Dishonesty Bond Agency shall provide an employee dishonesty bond in an amount of at least One Million PSA — CFW and Gulf South Risk Services, Inc. 5 of 18 Dollars ($1,000,000.00) per event, to run in favor of the City as its interest may appear. For a bond to be acceptable it must be executed by a corporate surety authorized to do business in the State of Texas and otherwise acceptable to the City. 11. COMPLIANCE WITH LAWS. ORDINANCES. RULES AND REGULATIONS. Agency agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws ordinances, rules and regulations and that any work it produces in connection with this agreement will also comply with all applicable federal, state and local laws, ordinances rules and regulations. If the City notifies Agency of any violation of such laws, ordinances, rules or regulations, Agency shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Agency, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Agency's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Agency, its personal representatives, assigns, subcontractors or successors in interest, Agency agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: City of Fort Worth Attn: Susan Alanis, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile (817) 392-8654 With a copy to City Attorney's Office at same address 14. SOLICITATION OF EMPLOYEES. To Agency: Gulf South Risk Services, Inc. Attn Keith T. Kenney, Jr., President PO Box 1398 Houma, LA 70361 Facsimile: (985) 879-2650 Neither the City nor Agency shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Agency, any person who is or has been employed by the other during the term of this agreement without the prior written consent of the person's employer. 15. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Agency to insist upon the performance of any term or provision of this PSA — CFW and Gulf South Risk Services, Inc. 6 of 18 Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Agency's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall Ile in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Agency shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but if either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints civil disturbances; or explosions; or some other reason beyond the Party's reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its attorneys have had the opportunity to review and revise this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. 23. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 24. WARRANTY OF SERVICES. Agency warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) PSA — CFW and Gulf South Risk Services, Inc. 7 of 18 days from the date that the services are completed. In such event, at Agency's option, Agency shall either (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with the warranty, or (b) refund the fees paid by the City to Agency for the nonconforming services. 25. NETWORK ACCESS. If Agency and/or any of its employees, officers, agents, servants or sub -contractors (for purposes of this section "Agency Personnel"), requires access to the City's computer network in order to provide the services herein, Agency shall execute and comply with the Network Access Agreement which is attached hereto as Exhibit ` B" and incorporated herein for all purposes 26. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Agency shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Agency shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Agency shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Agency shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Agency shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Agency 27. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by any authorized representative of Agency whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "C" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 28. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided u nder this Agreement collectively, "Work Product' Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation o r fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work -made -for -hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is n ot considered a "work -made -for -hire' within the meaning of the Copyright Act of 1976, as amended, Agency hereby expressly assigns to City all exclusive right title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of the City. 29. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City PSA — CFW and Gulf South Risk Services, Inc. 8 of 18 and Agency, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. INAIVIT,NF�,SS WHEREOF, the parties hereto have executed this Agreement in multiples this day of (1t �j�� 2013. ACCEPTED AND AGREED: CITY OF FORT WORTH: By C44,4L— Susan P,lanis Assistant City Manager Date: tOkinD ' ATTES By: City Secretar o APPROVED AS TO FORM AND LEGALITY: By: \\F.. L' it Denis C.% McElroy/Assistant {Assistant City Attorney CONTRACT AUTHORIZATION: M&Cs: P-11509, C-26351 GULF SOUTH RISK SERVICES, INC. President By: Keith T. Kenney, Jr. President Date: /0/5/1 'TEST: OFFICIAL RECORD CflY SECRETARY F7: WORTh, TX 1-keaksii\c., PSA — CFW and Gulf South Risk Services, Inc. 9 of 18 1.0 GENERAL• EXHIBIT A SCOPE OF WORK The purpose of this Agreement is to engage the services of Agency to attempt to recover monies owed to the City foi claims that have previously been opened and worked by City's Risk Analysts and subsequently closed without collection. The City makes no representations with respect to the quality or thoroughness of past claim handling efforts. Agency understands and acknowledges that processing of these claim files may require additional work by the Agency to ascertain damages and/oi to obtain police reports. Police reports are available through the City of Fort Worth or from the jurisdiction where the accident occurred. Copies of City reports relating to accidents will be made available to the Agency at no chatge. Costs for obtaining reports or documentation from other jurisdictions are reimbursable by the City as Allocated Claim Expenses The City shall provide the Agency with access to all information in its claim files including pieviously prepared damage estimates; previously gathered data regarding actual costs incurred by or on behalf of the City in making any repair to damaged pi operty or procuring any replacement foi property that was not economically feasible to repair; and data regarding woi kers compensation payments made. However, Agency under stands and acknowledges that processing of these claim files may require additional woik by the Agency to obtain estimates for damage to City property, information regarding actual repair of replacement costs paid by or on behalf of the City and information regarding amounts paid out for workers' compensation claims. If required Agency shall be responsible for securing estimates, following up with City personnel to obtain information regarding actual repair/replacement expenses, and following up with the City's third party administrator(s) for workers compensation claims. Agency shall obtain vehicle -damage estimates from Likes Appraisal Set vices and shall be responsible for coordinating with City departments to have vehicles brought in for an estimate if required. Agency shall obtain other property -damage estimates from a non-affiliated, third party property inspector/adjuster. Agency shall direct Likes Appraisal Service of the non-affiliated third party property inspector/adjuster to submit its invoices for set vices directly to the City for payment. If Agency is required to pay Likes Appraisal Services or the non-affiliated, third party property inspector/adjuster directly for an estimate, Agency may recovery its actual out-of-pocket cost as an Allocated Claim Expense. Throughout the term of this Agreement and any renewals thereof, Agency shall provide at least one of its employees on -site at the City to coordinate Agency's claims processing services and to work claims. Such Agency employee shall be on -site during normal City business hours foi at least forty hours per week, with the exception of any week in which the City is closed for business due to a holiday or otherwise. 2.0 INITIAL INVESTIGATION — FOR ALL CASES: The Agency shall: 2.1 Review all closed files for police reports or other forms of damage reports to evaluate for PSA — CFW and Gulf South Risk Services, Inc. 11 of 18 subrogation potential; 2.2 Investigate the facts of loss and determine cause of loss, evaluation of liability, and identity of all potentially responsible parties and their insurance companies if not previously completed; 2.3 Document the cost of repairs or replacement if not previously obtained; 2.4 Notify potentially responsible parties and their insurance carriers in writing as soon as possible of the City's intent to pursue recovery if such action has not previously occurred and follow up on any notices previously sent out; and 2.5 Physically inspect damaged property at location of damaged property if documentation has not been provided. 3.0 FOR ALL PROPERTY AND AUTO CASES: Agency shall: 3.1 Work with the appropriate City department(s) to gather information regarding all repair costs (initial and supplemental) if such information is not in claim file; 3.2 Set up claims with insurance company and/or the damager or responsible party; 3.3 Send out demand letters; 3.4 Provide all repair costs and police report backup to insurance company and/or damager or responsible party; 3.5 Follow up with City personnel and other parties as appropriate; 3.6 Review with and refer to City Attorney's Office (CAO) as appropriate; and 3.7 Take all appropriate action to recover money owed to the City. 4.0 FOR WORKERS' COMPENSATION: Agency shall: 4.1 Work with the City's third party administrator for workers compensation to obtain notes, bills and related claim documents; 4.2 Work with the City's Human Resources Department to identify any supplemental wages earned; 4.3 Review with and refer to City Attorney's Office (CAO) as appropriate; 4.4 Set up claims with insurance company and/or damager or other responsible party; 4.5 Follow up with City personnel and other parties as appropriate; and PSA — CFW and Gulf South Risk Services, Inc. 12 of 18 4.6 Take all appropriate action to recover money owed to the City. 5.0 RELEASES 5.1 For all subrogation cases, Agency shall ensure that all transactions, documentation, information, letters and reports are recorded in the claim files in the City's Risk Management Information System ("RMIS ' or "STARS") and that all associated documents are uploaded for each claim Agency shall ensure that releases are viewed and presented as part of the settlement and processed with the responsible party or that party's insurer. Agency shall ensure that releases include confirmation that all of the City's losses are considered and that releases reflect that the City does not waive the right to recovery for any related workers' compensation benefits paid. 5.2 Agency shall ensure that all releases are sent to the Risk Manager for review and execution with Agency's recommendations and comments. Agency shall ensure that recovery dollars from the responsible party or that party s insurer are paid directly to authorized City personnel for deposit and are documented in the City's RMIS Agency shall ensure that all documents include the claim number and information regarding which City department is associated with the claim to allow City personnel to make the deposit correctly. 6.0 COMMUNICATION & NEGOTIATION: The Agency shall: 6.1 Serve as the point of contact with the responsible parties and their insurance companies with respect to exchange of documents and information necessary to achieve recovery due to the City; 6.2 As warranted and subject to City approval, negotiate all compromise settlements with responsible parties; and 6.3 Review all releases presented as part of the settlement process with the CAO and provide release forms to authorized City representative for signature with Agency's recommendations and comments. 7.0 RECEIPT AND PROCESSING OF RECOVERIES: The Agency shall ensure that all recovery payments from responsible parties or their insurers are sent directly to the City for deposit with indication of what City department is associated with the claim. In addition, Agency shall ensure that all recoveries are documented in STARS Agency shall not accept payment on behalf of the City. In the event Agency receives payment of monies owed to the City, Agency shall immediately remit such amounts to the City and shall take any and all steps necessary to allow the City to deposit such payments including, but not limited to, executing any endorsement from Agency to City that may be requii ed in order for City to deposit payment instruments from third parties. PSA -- CFW and Gulf South Risk Services, Inc. 13 of 18 8.0 LITIGATION: The Agency shall, following consultation with and approval from the City: 8.1 Prepare file for presentation by City Attorney in appropriate court; 8.2 Prepare for and attend hearings on behalf of the City if requested by City Attorney; 8.3 Ensure that all judgments on the City's behalf are documented in STARS; 8.4 As applicable, monitor criminal proceedings of responsible parties and seek restitution orders on the City's behalf. For all cases that involve restitution, the Agency shall initiate and document all work with the prosecuting attorney and/or Courts to obtain restitution award. The City shall be responsible fat documenting restitution payments received by the City in RMIS. 9.0 UNRECOVERABLE CLAIMS For any file deemed unrecoverable by the Agency, the Agency shall 9.1 Forward the file to the City Attorney's office for continued investigation and possible recovery along with a brief summary of the claim, Agency's efforts to collect, and the results of those efforts; and 9.2 Update STARS regarding Agency's actions and the referral to the CAO. 10.0 DELIVERY OF ELECTRONIC DATA: The Agency shall provide the City's Risk Management Division with a monthly status report on open and closed claims activity during the month. The report, along with the monthly invoice, shall be delivered by the 10th of each month following the end of the reporting period. The report shall include, at a minimum, the following information: (1) a breakdown of collections by category — auto, workers' compensation wage supplemental pay, and property; and (2) the claim number on each file for which a collection occurred. Electronic reports are acceptable as an alternative to printed reports. PSA — CFW and Gulf South Risk Services, Inc. 14 of 18 EXHIBIT B NETWORK ACCESS AGREEMENT This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation of the State of Texas, with its principal location at 1000 Throckmorton Street, Fort Worth Texas 76102, and Gulf South Risk Services, Inc., a Louisiana corporation with its principal location at 712 School Street, Houma, Louisiana 70360 ("Contractor"). 1. The Network The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide subrogation and claims recovery services related to traffic signal engineering and maintenance In order to provide the necessary support, Contractor needs access to Internet intranet, email, ITSM, Buzzaw, CPMS, M&C system, TPW Network Drive TMC03, TPW Network Drive FS100, TPW Shared drive, and VPN access. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing subrogation and claims recovery services. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. ■ ■ n Services are being provided in accordance with City Secretary Contract No. Services are being provided in accordance with City of Fort Worth Purchase Order No. Services are being provided in accordance with the Agreement to which this Access Agreement is attached. No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met. 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Contractor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not share the City -assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City s Network in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. PSA — CFW and Gulf South Risk Services, Inc. 15 of 18 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor its officers, agents servants, employees and/or representatives to access the City's Network. 7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Contractor -owned equipment that contains City -provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City -provided Network credentials, and unauthorized use or sharing of Network credentials. 8 LIABILITY AND INDEMNIFICATION. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CONTRACTOR MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS TO OR DENIAL OF ACCESS TO CONTRACTOR'S DATA ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, OR FOR ANY REASONABLE SECURITY MEASURES TAKEN BY THE CITY. IN ADDITION, CONTRACTOR S HALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL CLAIMS, DEMANDS AND JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, S ERVANTS AND/OR EMPLOYEES. CONTRACTOR, AT CONTRACTOR'S OWN COST OR EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY CLAIM, LAWSUIT, DEMAND OR OTHER ACTION TO THE EXTENT THAT THE SAME ARISES FROM THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. Confidential Information. Contractor, for itself and its officers, agents, employees and representatives, agrees that it shall treat all information provided to it by the City as confidential and shall n ot disclose any such information to a third party without the prior written approval of the City. Contractor further agrees that it shall store and maintain City Information in a secure manner and shall not allow u nauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised o r is believed to have been compromised. 10. Ripht to Audit. Contractor agrees that the City shall, during the initial term, any renewal terms, and until the expiration of three (3) years after termination or expiration of this Agreement, have access to and the right to examine at reasonable times any directly pertinent books data documents, papers and records, both hard copy and electronic, of the Contractor involving transactions relating to this Agreement Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, during the initial term, any renewal terms and until expiration of three (3) years after termination or expiration of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, data, documents papers and records, both hard copy and electronic of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in PSA — CFW and Gulf South Risk Services, Inc. 16 of 18 compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written contracts, agreements, understandings or acknowledgments with the City signed by Contractor. This Agreement and any other documents incorporated herein by reference constitute the entire understanding and Agreement between the City and Contractor as to the matters contained herein regarding Contractor's access to and use of the City's Network. 12. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner except by written instrument signed by an authorized representative of both the City and Contractor. 13. Assignment. Contractor may not assign or in any way transfer any of its interest in this Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void. 14. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 15. Force Maieure. Each party shall exercise its best efforts to meet its respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 16. Governing Law / Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 17. Signature Authority. By affixing a signature below, the person signing this Agreement hereby warrants that he/she has the legal authority to bind the respective party to the terms and conditions in this agreement and to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. ACCEPTED AND AGREED: CITY OF FORT WORTH: I By: Susan A anis Assistant City Manager Date: In �'�• �( ATTEST: By: Mary J. Kayser City Secretary APPROVED AS TO FORM AND LEGALITY: By: Assistan ity Attor ° ge0 By: KeitT. Kenney, Jr. � � / (/ President Date: /p/3 /j GULF SOUTH RISK SERVICES, INC. /`afr--rai ATTEST: By: 64latt�.. Name: tof Iwo% I.el cam_ Title: Ctaths.s 4A%,rs\-e,r Ih.aoi,.s PSA — CFW and Gulf South Risk Services, Inc. 17 of 18 EXHIBIT C VERIFICATION OF SIGNATURE AUTHORITY Gulf South Risk Services, Inc. PO Box 1398 Houma, LA 70361 Agency hereby agrees to provide the City with subrogation and recovery services for Risk Management claims. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Position: Signature 2 Name: Position: Signature 3. Name: Position: Signature Signature of President / CEO Other Title: Date: / PSA — CFW and Gulf South Risk Services, Inc. 18 of 18 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 4/9/2013 DATE: Tuesday, April 09, 2013 REFERENCE NO.: **P-11509 LOG NAME: 13P13-0050 RISK MGTRECOVERY SVCS SUBJECT: Authorize Execution of an Agreement with Gulf South Risk Services, Inc , in the Amount of $300,000.00 for Subrogation and Recovery Services for Risk Management Claims (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize the execution of an Agreement with Gulf South Risk Services, Inc., in the amount of $300,000.00 for subrogation and recovery services for Risk Management claims for a three year period. DISCUSSION: The Risk Management Division of the City's Financial Management Services Department will use this Agreement to obtain assistance for subrogation and recovery services. These services will be used to augment Staff in pursuing recovery of amounts to which the City may be legally entitled. Payments to Gulf South Risk Services, Inc., for recovery services will be based on 25 percent of financial recoveries they achieve. The vendor will invoice the City based on any recovery made and will be paid from money recovered and collected on behalf of the City. Accident investigation and related costs to conduct investigations such as professional adjusting expenses, background checks, credit reports or private investigator services to locate individuals will be charged to the individual file as allocated expenses and paid at the time and at the expense rates. REQUEST FOR PROPOSALS ADVERTISEMENT — The Request for Proposals (RFP) No. 13-0050 was advertised in the Fort Worth Star —Telegram on January 2, 2013 January 9, 2013, January 16, 2013, January 23, 2013, and January 30, 2013. Eleven vendors were notified from the purchasing vendor database, and seven vendors were notified through email. On January 31, 2013, four proposals were received in response to the RFP. The proposals were evaluated by an evaluation committee consisting of Staff from the Transportation and Public Works Department, the City Attorney's Office, and the Financial Management Services Department. The committee ranked the proposals based on evaluation criteria, including responses to questions and requirements, experience, and price. The evaluation committee detemiined that Gulf South Risk Services, Inc , provides the best overall solution for the City. PRICE ANALYSIS — The City has no previous history for this type of purchase. The price being recommended for award is considered fair and reasonable. M/WBE OFFICE* A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office in accordance with the BDE Ordinance, because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. ADMINISTRATIVE CHANGE ORDER — An Administrative Change Order or increase may be made by the City Manager in the amount up to $50 000.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. AGREEMENT TERMS — Following City Council's approval, the Agreement shall begin upon execution and remain effect for a penod of three years. RENEWAL OPTIONS — This Agreement may be renewed for up to two one—year options at the City s sole discretion. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Risk Management Fund. BQN\13-0050\MJ FUND CENTERS: TO Fund/Account/Centers, CERTIFICATIONS: Submitted for City Manager's Office bv: Originating Denartment Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers FE71 534040 0137110 Susan Alanis (8180) Horatio Porter (2379) Jack Dale (8357) Marilyn Jackson (2059) 1. funding verification.doc 2. MWBE Waiver Risk Management Recovery Services.ndf S300.000.00 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 7/23/2013 DATE: Tuesday, July 23, 2013 REFERENCE NO.: **C-26351 LOG NAME: 13PAMEND P-11509 ,SUBJECT: Approve Amendment of Mayor and Council Communication P-11509 to Change the Subrogation and Recovery Services with Gulf South Risk Services, Inc., Contract Amount from $300,000.00 Total to the Amount of $300,000.00 Per Year (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council approve the amendment of Mayor and Council Communication P-11509 to correct the contract amount for subrogation and recovery services with Gulf South Risk Services, Inc., from $300,000.00 total to the amount of $300 000 00 per year, with payment coming from recoveries facilitated by the contractor DISCUSSION: On April 4, 2013, (M&C P-11509) the City Council authorized an Agreement with Gulf South Risk Services Inc., for subrogation and recovery services to pursue recovery of amounts to which the City may be legally entitled. In communicating with the interested vendors in the Request for Proposal process, the City indicated that the available compensation would be in the amount up to $300,000.00 per year. However the Mayor and Council Communication (M&C) that was presented to the City Council omitted the reference to "per year" and reads as though the total compensation for the three—year Agreement period would be in the amount of $300 000.00. Approval of this M&C would amend M&C P-11509 to change the amount of fees to the amount of $300 000.00 per year All other terms of this M&C will remain the same. As noted in the original M&C, the vendor will be paid a percentage of the amounts that they recover for the City. FISCAL INFORMATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as apropriated, of the Risk Management Fund. FUND CENTERS: TO Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers FE71 534040 0137110 Susan Alanis (8180) Jesus Chapa (8517) Marilyn Jackson (2059) Jack Dale (8357) 1. funding verification.doc 2. MWBE Waiver Risk Management Recovery Services.ndf $300.000.00