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HomeMy WebLinkAboutExhibit 1PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this of October, 2009 by and between the City of Miami, a municipal corporation of the State of Florida ("City") and Gallagher Bassett Services, Inc., a Delaware corporation ("Provider"). This Agreement shall be effective the date it is fully executed (the `Effective Date"). RECITAL A. The City requires the provision of Workers' Compensation, General Automobile & Professional Liability Claims Administration Services ("Services"); and B. Provider has been providing the Services to the City since October 2003, and thus is most qualified to continue providing the Services; and C. The Commission of the City of Miami, after a four-fifths affirmative vote, by Resolution No. 09- , adopted on October 22, 2009, found that competitive sealed bidding was not practicable or advantageous to the City, and authorized the City Manager to execute this Agreement under the terms and conditions set forth herein. NOW, TBEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and the City agree as follows: TERMS 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: This Agreement shall have a month-to-month term, commencing on the date hereof and shall terminate upon thirty (30) days written notice from the City to Provider. In no event shall this Agreement terminate until such time as the City has completed a competitive procurement process for services to provide Workers' Compensation, Claims Administration, General Automobile and Professional Liability, and Managed Care Services. In the event the City requires Provider to continue to handle open claim files after the termination date of this Agreement, as provided in Attachment "A", then the provisions of this Agreement shall continue to apply to Provider's performance of Services for such claims until they are closed. The City may terminate this Agreement, in its sole discretion and without City Commission approval, by written notice to the Provider. 3. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and under the terms and conditions set forth in Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement. The City reserves the right not to turn over to Provider, and to retain management, handling and control of, all or a portion of the claims that are the subject of this Agreement. The City also reserves the right to perform, or caused to be performed by other parties, some or all of the services that are subject to Allocated Expenses, as the term is defined in Section II.1.C. of Attachment "A". B. Provider represents and warrants to the City that: (i) it possesses all qualifications, licenses and expertise required for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to the City; (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified, licensed and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A". 4. COMPENSATION: A. In consideration for the Services, the City agrees to pay to Provider compensation as provided in Attachment "B" hereto, which by this reference is incorporated into this Agreement. B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forty-five (45) days after receipt of Provider's invoice, which shall be accompanied by sufficient supporting documdntation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. 5. DESIGNATED PERSONNEL: Provider acknowledges that in selecting Provider as the most qualified firm for the provisions of the Services the City has relied on Provider's representations regarding its staffing model and its commitment to designated personnel exclusively to the City for the provisions of Services. Provider agrees to assign exclusively to the City, the personnel specified in Attachment "C", which is incorporated by reference and made a part to this Agreement, to perform the Services (the "Designated Personnel"). 2 6. OWNERSHIP OF DOCUMENTS: A. Provider understands and agrees that any information, document, report, file or any other material whatsoever which is given by the City to Provider or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at all times remain the property of the City. Provider agrees not to use any such information, document, report, file or material for any purpose whatsoever, except as authorized in this Agreement, without the written consent of City, which may be withheld or conditioned by the City in its sole discretion. Claim files that are closed shall be returned to the City in accordance with the provisions of Attachment "A". B. At all times during the Term, and for a period of five (5) years after its termination, Provider shall provide City access to all files and records maintained on City's behalf. Provider further agrees to deliver to the City or to such address as requested by the City, all files, or such flies as the City may request, in hard copies or such electronic format as may be required by the City, not later than ten (10) days after receipt of City's written request. C. Not later than ten (10) days after the termination of the term, Provider shall deliver to the City, in addition to all other documents, information and data described in Attachment "A", all original claim files, computer tapes or other computer media containing all of the data required for claims adjudication and loss statistics. All data to be delivered by Provider to the City in connection with the termination of this Agreement shall be in such format as may be required by the City to ensure the successful conversion of the computer systems software and data to the systems of a successive Third Party Administrator or the Department. Provider represents that it will deliver to the City the data in the standard industry layout end that it will cooperate with the successive Third Party Administrator in the successful transfer of all data and duties, all at Provider's sole cost and expense. 7. AUDIT AND INSPECTION RIGHTS: A. The City may, at reasonable times, and for a period of up to five (5) years following the date of final payment by the City to Provider under this Agreement, audit, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain all such books and records at its principal place of business for a period of five (5) years after final payment is made under this Agreement. B. The City may, at reasonable, times during the term hereof, inspect Provider's 3 facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or Services required to be provided by Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make available to the City all reasonable facilities and assistance to facilitate the performance or tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-100 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Provider represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 9. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law, Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Provider understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Provider agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. Additionally, at all times during the Term Provider shall comply with and observe, all applicable Federal, State and Local laws, statues, rules and regulations applicable to the Services, including specifically, but without limitation, the provisions of the Health insurance Portability and Accountability Act of 1996 ("HIPAA") and the Privacy Standards contained therein. Provider shall enter into a Business Associate Agreement with the City of Miami for HIAA compliance. 11. IN'DENMFICATION: Provider shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including M attorney's fees) or liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (1) the performance or non-performance of the Services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Provider or its employees, agents or subcontractors (collectively referred to as "Provider"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnities, or any of them or (ii) the failure of the Provider to comply with any of the paragraphs herein or the failure of the Provider to observe, comply with or conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Provider expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Provider's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 12. DEFAULT: If Provider fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Provider shall be in default. Notwithstanding the provisions of paragraph 2, above, upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law and equity, may immediately, upon written, notice to Provider, terminate this Agreement. Provider understands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. Should Provider be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, Provider shall be liable to the City for all expenses incurred by the City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services, including consequential and incidental damages. 13. RESOLUTION OF CONTRACT DISPUTES: Provider understands and agrees that all disputes between Provider and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior, to Provider being entitled to seek judicial relief in connection therewith. In the event that the 5 amount of compensation hereunder exceeds- $50,000.00, the City Manager's decision shall be approved or disapproved by the City Commission. Provider shall not be entitled to seek judicial relief unless: (i) it has first received City Manager' s written decision, approved by the City Commission if the amount of compensation hereunder exceeds $50,000.00, or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (ninety (90) days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 14. CITY'S TERMINATION RIGHTS: A. The City shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Provider at least thirty (30) days prior to the effective date of such termination_ In such event, the City shall pay to Provider compensation for Services rendered prior to the effective date of termination. In no event shall the City be liable to Provider for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. The City shall have the right to terminate this Agreement, without notice to Provider, upon the occurrence of an event of default hereunder. If on the date of termination of this Agreement the compensation earned by the Provider for Services rendered up to that date is less than the amounts paid by the City under Attachment "B", the Provider shall immediately, but in no event later than ten (10) business days after the termination of the Agreement, return the amount of the overpayment to the City. C. Not later than ten (10) days after the termination of this Agreement, Provider shall, at no cost to the City, deliver to the City such data, discs or other media containing all data pertaining to the Services for transference to the Department, or to a successive administrator, in the data or media format required by the City to ensure the successful conversion of the computer systems software and data to the systems of a successive administrator. D. Not later than five (5) business days after termination of this Agreement, the City shall notify the Provider, in writing, if the City requires Provider to continue to handle open files until their conclusion, or such other earlier time as may be required by the City, in accordance with the provisions of Attachment "A". 15. INSURANCE: Provider shall, at all times during the term hereof, maintain such insurance coverage as stated in Attachment "D", which is incorporated by reference and made a part of this Agreement. All such insurance, including renewals, shall be subject to the approval R of the City for adequacy of protection and evidence of such coverage shall be furnished to the City on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the Services under this contract without thirty (30) calendar days prior written notice to the City. Completed Certificates of Insurance shall be filed with the City prior to the performance of Services hereunder, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. If, in the reasonable judgment of the City, prevailing conditions warrant the provision by Provider of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Provider of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Provider fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the City's written notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. 16. NONDISCRIMINATION: Provider represents and warrants to the City that Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Provider' s performance under this Agreement on account of race, color, sex, religion, age, disability, marital status national origin or sexual preference. Provider further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, disability, marital status, national origin, or sexual preference be excluded from participation in, be denied Services, or be subject to discrimination under any provision of this Agreement. 17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the City's, which may be withheld or conditioned, in the City's sole discretion. 18. NOTICES: All notices or other communications required under this Agreement. shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other parry at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted 7 or the date of actual receipt, whichever is earlier. ' If to Provider: Robert Mason, CFO Gallagher Bassett Services, Inc. The Gallagher Centre Two Pierce Place Itasca, Illinois 60143 With copies to: Vilma Palma -Blackmon, VP Gallagher Bassett Services, Inc. 3350 S.W. 148"' Avenue, Suite 200 Miramar, Florida 33027 19. MISCELLANEOUS PROVISION: If to Citv: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 With copies to: City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 With copies to: Risk Management Department City of Miami 444 S.W. 2nd Avenue, Ninth Floor Miami, Florida 33130 Attn: Risk Management Administrator A. This Agreement shall be construed and enforced according to the laws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same, shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representative, successors, or assigns. 21. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide Services to the City as independent contractor, and not as an agent or employee of the City. Accordingly, Provider shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering Services to the City under this Agreement. 22. CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. 23. REAFFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 24. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. "Provider" ATTEST: Gallagher Bassett Services, Inc., a Delaware corporation Print Name: Title: E By: Print Name: Title: ATTEST: Priscilla A. Thompson, City Clerk APPROVED AS TO FORM AND CORRECTNESS: Julie 0. Bra City Attorney 10 LG CIty77 CITY OF MIAMI, a municipal Corporation By: Pedro G. Hernandez, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm Risk Management Director