HomeMy WebLinkAboutContract 32797 State of Texas § City of Secretary
Contract No.
Counties of Tarrant, §
Denton and Wise
AGREEMENT
This AGREEMENT is between The City of Fort Worth (CITY), a Texas home-rule municipality
located at 1000 Throckmorton St. Ft. Worth, TX 76102 and Wm. Rigg Co (BROKER), a Texas
corporation located at 777 Main Street, Suite C-50, Fort Worth, TX 76102-5333, the CITY's
Broker of Record for the Fire and Extended Coverage line of insurance and for the Boiler and
Machinery line of insurance and consultant to CITY for other lines of insurance.
The CITY and the BROKER agree to the following terms and conditions:
1.0 SCOPE OF SERVICES
The BROKER shall perform the services as outlined and described in Attachment
"A"—Services to Be Performed.
1.1 TERMS OF THIS AGREEMENT
A. This AGREEMENT shall be in effect for a period of thirty six (36) months from
October 1, 2005. CITY has the option to extend this AGREEMENT for two (2),
Twelve- (12)month periods.
1.2 TERMINATION AND REMEDIES, CANCELLATION
A. The CITY shall have the right to cancel for default all or any part of the
undelivered portion of the AGREEMENT if BROKER breaches any of the terms
hereof including warranties of BROKER or if the BROKER becomes insolvent or
commits acts of bankruptcy. Such right of cancellation is in addition to and not in
lieu of any other remedies,which the CITY may have in Law or equity.
B. Right of Assurance. Whenever one party to this AGREEMENT in good faith has
reason to question the other party's intent to perform, it may demand that the
other party give written assurance of its intent to perform. In the event a demand
is made, and no assurance is given within five (5) working days, the demanding
party may treat this failure of assurance as an anticipatory repudiation of this
AGREEMENT.
C. A party may terminate the AGREEMENT if the other party
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material breach, which substantially impairs the value of the co r it
to the non-breaching party within five (5) working days of re ei
notice from the other party. If more than five (5) working days arW� ,t� ��
cure such default or breach, a reasonable time in excess of said peAb 'A
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substituted. In the event such default or breach is not cured within the specified
time the contract may be terminated effective five (5) working days after receipt
of written notice by the party in default.
D. The CITY reserves the right to cancel for convenience this AGREEMENT upon
30-calendar days written notice to the BROKER. Effective date of such notice
shall begin three (3) days after date of posting with the United States Postal
Service with said notice being sent to last known address of BROKER.
E. The CITY in accordance with this provision may terminate in whole or in part the
performance of work under this order. Termination of work hereunder shall be
effected by the delivery to the BROKER of a "Notice of Termination," specifying
the extent to which performance of work under the AGREEMENT is terminated
and the date upon which such termination becomes effective. Such right of
termination is in addition to and not in lieu of rights of the CITY with regard to
cancellation of this AGREEMENT.
F. Upon Termination for Cause, the CITY shall make no further payment to
BROKER and the CITY retains the right to exercise any other legal or equitable
remedies.
1.3 PAYMENTS TO THE BROKER
CITY agrees to pay the BROKER as follows:
A. Basic Services
1. For the performance of all services described in Section 2.0 and
Attachment "A," the BROKER shall receive compensation on a fixed fee
basis. Payment to the BROKER for the services shall not exceed the
maximum AGREEMENT amount during the initial term.
2. No Payment shall be made except in conformance with Subsection B
below.
B. Method of Payment
1. Payments to BROKER for the performance of professional services shall
be made in quarterly installments of$16,500.00, payable on the first day
of each CITY fiscal quarter.
2. Payments for Additional Services or for extra work required and approved
by the CITY, as described in Section 3.0 of this AGREEMENT, shall be
made monthly as the work is performed and billed.
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3. Payment of invoices is due no later than thirty (30) days after receipt of
billing by CITY with appropriate documentation. If there are disputed
items and/or amounts on any invoice, or items lacking appropriate
documentation, the balance of such invoice, after deducting any such
items, shall be paid in full, and the disputed items and amounts shall be
presented to BROKER for resolution as soon as such disputed items have
been determined by the CITY. If payment of the amounts due, or any
portion thereof, is not made as prescribed above, interest on the unpaid
balance the time said overdue payments are made shall accrue at the rate
of ten percent (10%) per annum. Notwithstanding the above, nothing in
this AGREEMENT shall be construed to charge interest greater than the
amount allowed by Texas law. Payments due after a disputed amount is
resolved shall be paid no later than thirty (30) days after such resolution.
No interest shall be payable on retainage amounts.
4. Payments shall be delivered to:
Wm. Rigg Co.
777 Main Street, Suite C-50
Fort Worth, TX 76102-5333
Attention: Scott Miller
5. The CITY may withhold, amend, or nullify any request for payment by the
BROKER under conditions described below:
6. The CITY'S obligation is payable only and solely from funds appropriated
and available for the purpose of this AGREEMENT. Lack of appropriated
funds shall render this AGREEMENT null and void to the extent funds are
not appropriated and available.
7. Should the City and Broker agree to extend this agreement for services
past October 1St, 2008, the fee for such services shall be negotiated by both
parties at that time.
1.4 GENERAL RESPONSIBILITIES OF THE BROKER
A. BROKER is responsible for the professional quality, technical accuracy, timely
completion, and coordination of all services. BROKER shall, without additional
compensation, correct any material errors, omissions, or other deficiencies in
BROKER's services upon written request by the CITY.
B BROKER's obligations hereunder are in addition to the BROKER's other
expressed or implied assurance under this AGREEMENT and in no way diminish
any other rights that the CITY may have against the BROKER.
1.5 BROKER CERTIFICATION
The BROKER certifies that the fees in this AGREEMENT have M , „�,independently without any consultation, communication, or agreement fo ' �' ��Y ,3 14S
restricting competition, as to any matter relating to such fees with any other firm or with
any competitor.
1.6 CLAIMS
In the event that any claim, demand or other action is made or brought by any person,
firm, corporation, or other entity against the BROKER or BROKER's subcontractors,
arising out of performance of the AGREEMENT, the BROKER shall give written notice
thereof to the City within five (5) working days after being notified of such claim,
demand, suit or other action; the names and address of the person, firm, corporation or
other entity making such claim or that instituted or threatened to institute any type of
action or proceeding; and the name of any person against whom such claim is being made
or threatened. Such written notice shall be delivered either personally or by certified mail,
return receipt requested and shall be directly sent to:
Sue Haupt
Risk Manager
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
1.7 INDEPENDENT CONTRACTOR
BROKER's relationship with the CITY under this AGREEMENT is that of an
independent contractor. BROKER is to exercise its own discretion on the method and
manner of performing its duties, and CITY will not exercise control over BROKER or its
employees except insofar as this may be reasonably necessary to ensure performance and
compliance with this AGREEMENT. The employees, methods, equipment and facilities
used by BROKER shall at all time be under its exclusive direction and control. Nothing
in this AGREEMENT shall be construed to designate BROKER, or any of its employees,
as employees, agents,joint ventures or partners of the CITY.
1.8 LAWS, STATUTES AND OTHER GOVERNMENTAL REQUIREMENTS
BROKER agrees to be in compliance with all applicable laws, statutes and other
governmental provisions prevailing during the term of AGREEMENT.
1.9 ASSIGNMENT DELEGATION
This AGREEMENT shall be binding upon the parties, their successors, and assignees;
provided, however, that neither party shall assign its obligations hereunder without the
prior written consent of the other.
1.10 NOTICES
All notices under this AGREEMENT shall be by personal delivery or registered mail, and
by facsimile transmission the same date as personal delivery or posting in the mail.
Effective date of such notice shall be date of actual delivery or three (3) days after date of
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posting with the United States Postal Service with the said notice being sent to last
known address of recipient.
BROKER:
Scott Miller
Wm. Rigg Co.
777 Main Street, Suite C-50
Fort Worth, TX 76102-5333
Phone: (817) 820-8100
FAX: (817) 870-0310
CITY:
Sue Haupt
Risk Manager
City of Fort Worth
1000 Throckmorton St.
Ft. Worth, TX 76102
Phone: 817.392.7761
FAX: 817.332.5874
1.11 SEVERABILITY OF PROVISIONS
If any word, phrase, clause, sentence or provision of this AGREEMENT, or the
application of same to any person or set of circumstances is for any reason held to be
unconstitutional, invalid or unenforceable, that finding shall only affect the remaining
portions of this AGREEMENT, this being the intent of the parties in entering into this
transaction; and all provisions of the AGREEMENT are declared to be severable for this
purpose.
1.12 CHOICE OF LAW AND VENUE
This AGREEMENT shall be governed by the laws of the State of Texas without regard to
the choice of law provisions thereof. Venue for this Agreement shall lie in Tarrant
County, Texas.
1.13 CHANGES
Any change(s) to this AGREEMENT shall be in the form of a written amendment
mutually agreed upon and duly executed by both parties.
1.14 BROKER CONTACT
The BROKER shall communicate all matters initially to the Risk Manager or his/her
successor. The Risk Manager will act as contact point between the CITY and the
BROKER with regard to all matters under this AGREEMENT.
1.15 RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL
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All reports, charts, schedules, or other appended documentation to any proposal,
contracts and any responses, inquiries, correspondence, related material submitted by
BROKER shall become property of the CITY upon receipt.
1.16 COPYRIGHTS AND RIGHTS OF DATA
Where services under this AGREEMENT produce writings, sound recordings, pictorial
reproduction, drawings, or other graphical representation and works of any similar nature
the CITY has the right to use, duplicate, and disclose in whole or in part, in any manner,
for any purpose whatsoever and have others do so. If the material is copyrightable, the
sub-grantee may copyright such, and the CITY reserve a royalty free, non-exclusive, and
irrevocable license to reproduce, publish and use such materials in whole or in part and to
authorize others to do so. The CITY is not entitled to software programs used to produce
documentation hereunder.
1.17 PERFORMANCE
Failure by the CITY to insist in any one or more instances upon performance of any of
the terms and conditions of this AGREEMENT shall not be construed as a waiver or
relinquishment of the future performance of any terms and conditions, but the
BROKER's obligation with respect to such performance shall continue in full force and
effect.
1.18 NONDISCRIMINATION
During the performance of this AGREEMENT, the BROKER, for itself in interest agrees
as follows:
A. Nondiscrimination: The BROKER, with regard to the work performed by
BROKER under this AGREEMENT, shall not discriminate on any unlawful
grounds in the selection and retention of any subcontractors, including those
concerned in the procurement of materials and leases of equipment. The
BROKER shall not participate wither directly or indirectly in the discrimination
prohibited hereby.
B. Solicitations for subcontracts, including procurement of materials and equipment:
In all solicitations either by competitive bidding or negotiations made by the
BROKER for work to be performed under a subcontract, including procurement
of materials or leases or equipment, each potential subcontractor or supplier shall
be notified by the BROKER of the BROKER's obligations under this
AGREEMENT relative to nondiscrimination on the grounds of race, color or
national origin.
C. Sanctions for noncompliance: In the event of the BROKER's noncompliance with
the nondiscrimination provisions of this AGREEMENT and after giving
BROKER five (5) working days written notice, the CITY shall impose such
AGREEMENT sanctions as it may determine to be appropriate, i hiding, hiiLZUjL_
limited to: r_ r�
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1. Withholding of payments to the BROKER under this AGREEMENT until
the BROKER complies, and/or
2. Cancellation, termination, or suspension of this AGREEMENT, in whole
or in part.
1.19 CITY'S RESPONSIBILITY
The CITY's responsibilities include the following:
A. Pay all costs of insurance policies directly to the insurance provider as negotiated
with the insurance provider and provide evidence of such payment to BROKER.
B. Provide full information as to the CITY'S requirements for the insurance covered
by this AGREEMENT.
C. Assist BROKER by placing at the BROKER's disposal available reports and
other data relevant to the CITY's insurance needs.
D. Examine all studies, reports, cost estimates and other documents presented by the
BROKER and render, in writing, decisions pertaining thereto within a reasonable
time so as not to unduly delay the provision of services by BROKER.
E. Provide such legal and accounting services as the CITY may deem necessary for
its internal administration.
F. Give prompt written notice to the BROKER whenever the CITY observes or
otherwise becomes aware of any defect in the services being provided by
BROKER.
G. Bear all necessary and appropriate costs incidental to compliance with the
requirements of this Section.
2.0 SCOPE OF SERVICES
BROKER will provide the services listed in Attachment "A," which is hereafter attached
and hereby made a part of this AGREEMENT for all purposes.
3.0 ADDITIONAL SERVICES
Should CITY require additional services not included in the Attachment "A"or the Scope
of Basic Services as outlined in Section 2.0, CITY and BROKER will negotiate a fee for
such services. BROKER agrees additional services shall only be provided if authorized
or confirmed in writing by the CITY and the BROKER.
4.0 INSURANCE AND INDEMNITY REQUIREMENTS
TYPE AMOUNT
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1. Workers' Compensation Statutory
Employers' Liability $500,000/$500,000/$500,000
2. Commercial General (public) Liability Insurance to include coverage for the following:
a. Premises/Operations Combined Single Limit
b. Independent contractors for Bodily Injury and
C. Products/completed operations Property Damage of
d. Personal Injury $1,000,000 per occurrence
e. Contractual Liability with $2,000,000 Aggregate
3. Automobile Liability
a. Owned/Leased vehicles Combined Single Limit for
b. Non-Owned vehicles Bodily Injury and Property
C. Hired vehicles Damage of$1,000,000 per occurrence
4. Insurance Agents and Brokers $3,000,000 per Claim
Errors and Omissions Insurance $3,000,000 Annual Aggregate
(Claims made form)
The CITY shall be entitled, upon request and without expense, to receive copies of the policies
and all endorsements thereto as they apply to the limits required by the CITY, and may make a
reasonable request for deletion, revision, or modification of particular policy terms, conditions,
limitations or exclusions (except where policy provisions are established by law or regulation
binding upon either of the parties hereto or the underwriter of any such policies). Upon such
request by the CITY, the BROKER shall exercise reasonable efforts to accomplish such changes
in policy coverage and shall pay the cost thereof.
BROKER agrees that with respect to the above-required insurance, all insurance contracts and
Certificates(s) of Insurance will contain the following required provisions:
• Name the CITY and its officers, employees, volunteers, and elected representatives as
additional insured as respect to operations and activities of, or on behalf of, the named
insured performed under contract with the CITY, with the exception of the Workers
Compensation and Professional Liability policies;
• The BROKER's insurance shall be deemed primary with respect to any insurance or self
insurance carried by the City of Fort Worth for Liability arising out of operations under
the contract with the City of Fort Worth;
• Provide for an endorsement that the "other insurance" clause shall not apply to the City
of Fort Worth where CITY is an additional insured shown on the policy; and
• Workers' Compensation and Employers' Liability policy will provide a waiver of
subrogation in favor of the CITY.
BROKER shall notify the CITY in the event of any notice of cancellation, Ugk=wal
material change in coverage and shall give such notices not less than thirty (30)
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change, or ten (10) days notice for cancellation due to non-payment of premiums, which notice
must be accompanied by a replacement Certificate of Insurance. All notices shall be given to the
CITY at the following address:
City of Fort Worth
Attn: Sue Haupt
Risk Management Division
1000 Throckmorton Street
Fort Worth,TX 76102
If BROKER fails to maintain the aforementioned insurance, or fails to secure and maintain the
aforementioned endorsements, the CITY may obtain such insurance, and deduct and retain the
amount of the premiums for such insurance from any sums due under the agreement; however,
procuring of said insurance by the CITY is an alternative to other remedies the CITY may have,
and is not the exclusive remedy for failure of BROKER to maintain said insurance or secure such
endorsement. In addition to any other remedies the CITY may have upon BROKER's failure to
provide and maintain any insurance or policy endorsements to the extent and within the time
herein required,the CITY shall have the right to order BROKER to stop work hereunder, and/or
withhold any payments which become due, to BROKER hereunder until BROKER demonstrates
compliance with the requirements hereof.
Nothing herein contained shall be construed as limiting in any way the extent to which BROKER
may be held responsible for payments of damages to persons or property resulting from
BROKER's or its subcontractors' performance of the work covered under this agreement.
BROKER covenants and agrees to FULLY INDEMNIFY and HOLD HARMLESS,the
CITY and the elected officials , employees, officers, directors,volunteers and
representatives of the CITY, individually or collectively, from and against any and all costs,
claims, liens, damages, losses, expenses, fees, fines,penalties,proceedings, actions,
demands, causes of action,liability and suits of any kind and nature, including but not
limited to, personal or bodily injury or death and property damage, made upon the CITY,
directly or indirectly arising out of, resulting from or related to BROKER's activities
under this CONTRACT, including any acts or omissions of BROKER, any agent, officer,
director, representative, employee, consultant or subcontractor of CONTRACTOR, and
their representative, employee, consultant or subcontractor of CONTRACTOR, and their
respective officers, agents, employees, directors and representatives while in the exercise or
performance of the rights or duties under this CONTRACT, all without, however,waiving
any governmental immunity available to the CITY under Texas Law and without waiving
any defenses of the parties under Texas Law. IT IS FURTHER COVENANTED AND
AGREED THAT SUCH INDEMNITY SHALL APPLY EVEN WHERE SUCH COSTS,
CLAIMS, LIENS, DAMAGES, LOSSES, EXPENSES, FEES, FINES, PENALTIES,
ACTIONS, DEMANDS, CAUSES OF ACTION, LIABILITY AND/OR SUITS ARISE IN
ANY PART FROM THE NEGLIGENCE OF CITY,THE ELECTED OFFICIALS,
EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES OF CITY,
UNDER THIS CONTRACT. The provisions of this INDEMNITY are solely for the benefit
of the parties hereto and not intended to create or grant any rights, contractual or
otherwise, to any other person or entity. BROKER shall promptly advise the CITY in
writing of any claim or demand against the CITY or BROKER known to BROKER related
to or arising out of BROKER's activities under this CONTRACT and shall see to the
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investigation and defense of such claim or demand at BROKER's cost. The CITY shall
have the right, at its option and at its own expense, to participate in such defense without
relieving BROKER of any of its obligations under this paragraph.
It is the EXPRESS INTENT of the parties to this contract, that the INDEMNITY provided
for in this section, is an INDEMNITY extended by BROKER to INDEMNIFY, PROTECT
and HOLD HARMLESS the CITY from the consequences of the CITY's OWN
NEGLIGENCE, provided however, that the INDEMNITY provided for in this section
SHALL APPLY only when the NEGLIGENT ACT of the CITY is a CONTRIBUTORY
CAUSE of the resultant injury, death, or damage, and shall have no application when
negligent act of the CITY is the sole cause of the resultant injury, death, or damage.
BROKER further AGREES TO DEFEND,AT ITS OWN EXPENSE and ON BEHALF
OF THE CITY AND IN THE NAME OF THE CITY, any claim or litigation brought
against the CITY and its elected officials, employees, officers, directors,volunteers and
representatives, in connection with any such injury, death, or damage for which this
INDEMNITY shall apply, as set forth.
5.0 ENTIRETY OF AGREEMENT
This AGREEMENT, together with any attachments,represents the entire agreement
between the CITY and the BROKER and supersedes all prior negotiations,
representations or agreements, either written or oral.
Executed this day o 140 5
Wm. Rigg Co.
By:
Scott Miller
Vice President
Wm. Rigg Co.
City of Fort Worth
By:
APPROV AS TO FORM AND LEGALITY:
City Attorn Date
ATTESTED BY
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ATTACHMENT "A"
Scope of Services
I. PROCUREMENT AND PLACEMENT OF INSURANCE COVERAGE
Ninety days prior to the December 1"renewal date,the BROKER shall collaborate with
the City's Risk Manager to develop bid requests to secure property, casualty and boiler
and machinery insurance for the CITY's insurable risks. BROKER shall make available
to the CITY, all resources at its disposal to properly collect, organize and review all data
placed into the bid request.
BROKER shall market the CITY's account to qualified property and casualty and boiler
and machinery insurers. Marketing shall include, but not limited to, the development of
insurance specifications and underwriting criteria, and assistance in developing Requests
For Quotes. In addition,the BROKER will canvass insurance markets,review policies,
negotiate premiums on behalf of the CITY, and provide consultation and professional
advice on proposed changes or enhancements to the program and ongoing advisory
services for the duration of the contract concerning changes or enhancements to the
program.
BROKER shall represent the CITY in all phases of the renewal process. Direct
negotiations with underwriters and the insurance company will take place with the
direction of the CITY. Placement of any program of insurance will be conducted as a bid
directly to the insurance market underwriters. BROKER shall review bids and assist the
CITY in the selection thereof. It is clearly understood that any resulting product from the
Broker of Record Contract cannot be accepted nor bound until approved by the CITY's
Mayor and City Council. All procurement of insurance shall be conducted in accordance
with the Texas Local Government Code and all applicable law.
II. CONSULTANT SERVICES
BROKER shall act in an advisory and consulting role to the CITY for the duration of the
BROKER's contract to ensure that the insurance program accepted by the CITY
continues to work smoothly and effectively, without lapse in coverage. BROKER may
also be required to assist the CITY in evaluating proposals from potential contractors for
various existing and/or newly developed programs.
Consulting service shall include but is not limited to, identifying markets for specialty
coverage's for vendors or contractors doing business with the CITY; reviewing
contractual/lease provisions; assessing financial strength of insurance companies, risk
retention and purchasing groups, captive insurers and other non-traditional insurance
mechanisms. The BROKER will provide advice regarding loss settlement negotiation
with primary or excess insurers if needed. When requested, the BROKER will attend
meetings with the CITY staff or the City Council. Additionally, the BROKER will
provide assistance to the Risk Manager in developing specifications for a Ri
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Management Information System, respond to requests for information by the Risk
Manager, review proposed legislation, provide claim review assistance as needed, answer
loss control questions, and review actuarial reports.
III. ACTUARIAL SERVICES
BROKER arrange for and coordinate the collection of data for Actuarial Services on an
every other year basis. Actuarial studies shall commence at a time period acceptable to
the Risk Manager, and shall be provided to the CITY's Risk Manager no longer than 90
days from commencement.
IV. CLAIMS AUDIT SERVICES
BROKER shall arrange for and coordinate an annual Claims Audit of the CITY's
General Liability and Self-Insured Auto Liability as an optional service. Final reports
resulting from these audits shall be provided to the CITY'S Risk Manager by March 31 of
each year.
V. LOSS PREVENTION/SAFETY AUDIT SERVICES
BROKER shall arrange for Loss Prevention and Safety Audit Services. These services
shall include safety program evaluations, evaluation of high-risk activities, ergonomic
studies and Job Safety/Hazard Analysis on specific worker activities. BROKER shall
provide approximately 100 hours of these services, as requested by the CITY'S Risk
Manager.
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