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HomeMy WebLinkAboutPERFORMANCE EXCELLENCE PARTNERS, LLC INSURANCE NOT ON FILL N-2025-286 WORK MAY NOT PROCEED CITY CLERK DATE: DEC 15 2925 COT LOS tie J a I kvg&1) AGREEMENT FOR PARTNERSHIP STRATEGIST FOR SANT ANA WORK CENTER BETWEEN PERFORMANCE EXCELLENCE PARTNERS,LLC AND CITY OF SANTA ANA THIS AGREEMENT is made and entered into on this day of October 2025 by and between Performance Excellence Partners, LLC ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California("City"). RECITALS A. On.tune 30,2025, the City issued a Request for Proposal No. 25-094 ("UP"), by which it sought a consultant to develop an enhanced partnership strategy among the Santa Ana WORK Center partners, including the City of Santa Ana and the Employment Development Department(EDD) and other co-located partners to collaboratively identify shared goals, resources, and activities for the purpose of improving coordination, service delivery, and support for low-income communities in Sant Ana. B. Consultant submitted a responsive proposal that was selected by the City. Consultant represents that it is able and willing to provide services described in the scope of work that was included in the RFP. The RFP is referenced herein as if incorporated in full. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth,the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Compensation -Exhibit B. The total amount to be expended during the term of this Agreement shall not exceed $50,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. City and Consultant agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH)transfers. Consultant agrees to execute the Pagel of S #2111246v1 City's standard ACH Vendor Payment Authorization and provide required documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into ConsuItant's account(s) with financial institutions. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above for a number (1),year term, unless terminated earlier in accordance with Section 15, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement;however,the services to be provided by.Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services.Consultant shall pay all salaries and wages,employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify' reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans,specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes,which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Insurance requirements are attached hereto as Exhibit C. Page 2 of S #2111246vI 7. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees,contractors,special counsel,and representatives from liability: (1)for personal injury, damages,just compensation,restitution,judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages,just compensation, restitution,judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages,just compensation,restitution,judicial or equitable relief suffered,or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify,hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of_this Agreement, or asserting that personal injury, damages, just compensation, restitution,judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding.Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent,trademark, or copyright infringement,including costs,contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents,proceedings, and activities related to this Agreement for a period of three (3)years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such Page 3 of 8 #2111246v1 information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance,but in no event less than reasonable care. "Confidential Information"shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that(a)has been disclosed in publicly available sources; (b) is,through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or(e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE a. Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. b. No immediate family members of either the Mayor, City Council Member, or any appointed City Official, including appointed board and commission members, as defined under the City's Municipal Code, whose position with the City shall award or influence the award of this Agreement, or any competing contract or amendment thereof, shall be employed in any capacity by the Consultant or have any other direct or indirect financial benefit or interest in this Agreement. c. The section also.prohibits the awarding of any agreement, contract, grant, or any amendment to those awards, to any former full-time employee for one-year from date of employee separation except for any CalPERS retiree as authorized by City Council resolution d. The Consultant must comply with all conflict of.interest laws, ordinances, and regulations now in effect or hereafter to be enacted during the term of this Agreement. The Consultant warrants that it is not now aware of any facts which conflict with the prohibitions defined above. If the Consultant hereafter becomes aware of any facts that might reasonably be expected to create a conflict of interest, it must immediately make full written disclosure of such facts to the City. Full written disclosure must include, but is not limited to, identification of all persons implicated and a complete description of all relevant circumstances. Failure to comply with the provisions of this paragraph will be a material breach of this Agreement. e. Consultant covenants that none of its directors, officers, employees, or agents shall participate in selecting or administrating any subcontract supported(in whole or in part) by City funds stemming from the Agreement where the awarding of the subcontract has any direct or indirect financial benefit or interest to any individual, as defined in Page 4 of 8 #2111246vl subsections (b) and (c) above. 12. NON-DISCRIMINATION Consultant shall not discriminate because of race, color,creed,religion,sex,marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion,termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto,the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument - signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to,the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this. Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. Page 5 of g #2111246v1 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure,right or remedy.No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. JURISDICTION-VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the.laws of the State of California. Both parties further agree that Orange County, California,shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all neaessary--licet�ses, - permits, approvals,waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States,the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and - exemptions. Said inability shall be cause for termination of this Agreement. 19. NOTICE Any notice,tender, demand, delivery,or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered. in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City Clerk City of Santa Ana 20 Civic Center'Plaza(M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Executive Director Page 6 of 8 #2111246vl Community Development Agency City of Santa Ana 20 Civic Center Plaza(M-30) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6956 To Consultant: Rachel E. Ramirez CEO Performance Excellence Partners, LLC 21241 Hillsdale Lane Huntington Beach, CA, 92646 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four(24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth.above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. [signatures ova following page] Page 7 of 8 ##2111246v l IN WITNESS WHEREOF,the parties hereto have executed this Agreement the date and year first above written. ATTEST: i„ CITY OF S NTA ANA e ni er L. all Alvaro Nunez City Cle City Manager APPROVED AS TO FORM: SONIA R. CARVALHO CONSULTANT: City Attorney 4A't" By: , Andrea Garcia-Miller Senior Assistant City Attorney Title: RECOMMENDED FOR APPROVAL: Michael L. Garcia Executive Director Community Development Agency Page S of 8 #2111246vI EXHIBIT A SCOPE OF SERVICES #211124bv1 CITY OF SANTA ANA EXHIBIT I SCOPE OF SERVICES Consultant shall perform services as set forth below. 1. Develop agenda and facilitate planning meeting with Santa Ana WORK Center management to review and identify project priorities. a. Job descriptions for all staff at the Santa Ana WORK Center will be provided as needed to help aid in the planning process. b. Recap notes from meeting and distribute to meeting participants. 2. Develop agendas and facilitate meetings with the co-located partners including both front-line staff and management to improve coordination, share resources, with the intended purpose of a streamlined service delivery for underserved and low-wage populations, a. Recap notes from all meetings and distribute them to meeting participants. 3. Develop a too] to survey staff, with the intended purpose to uncover service integration implementation challenges for both job seekers and businesses, opportunities and priorities which may include issues with processes and procedures. 4. Develop an agenda and PowerPoint and prepare for and facilitate 1 planning meeting or focus group with the partner management to review key challenges, opportunities and priorities identified through the survey process and gain consensus on priorities. a. Recap notes from the planning meeting and distribute them to the participants. 5. Identify best practices, including use of technology, at other America's Job Centers of California that may be adapted to Santa Ana WORK Center service delivery model. 6. Draft a bullet-point Action Plan with detailed action items resulting from the planning process and recommendations for service integration opportunities. 7. The Santa Ana WORK Center Manager will be the project lead. S. The Santa Ana WORK Center Manager will work with the consultant to prepare the most effective and productive schedules and work assignments.. a. All schedules and assignments must be approved by the Santa Ana WORK Center Manager before work commences, City of Santa Ana RFP 25-094 Page 15 of 25 EXHIBIT B COMPENSATION #2111246v1 PERFORMANCE l ` Cost Proposal:RFP 25-094 it PARTNERS City of Santa Ana Economic Development-Workforce Bureau Partnership Strategist for Santa Ana WORK Center Task 1:Develop Agenda and Facilitate Planning Meeting PositionfrMe Staff Name HoursW166.00 $ Hourly al 1 Project Manager/Workforce Development SME Jaime Ramirez 1280.00 2 Workforce Development SME Lisa Rice 2330.003 Workforce Development SME Matt Poland 2370.004 Workforce Development Project Specialist Morgan Saridakis 610.00 SubTotal Task 1 2200. $ 3,t90.00 Task 2:Plan,Prepare,and Facilitate Meetings with Co-Located Partners Posdionfritle Staff Name Hours Hourly Rate Total 1 Project Manager/Workforce Development SME Jaime Ramirez 32 $ 165.00 $ 5,280.00 2 Workforce Development SME Lisa Rice 8 $ 165,00 $ 1 320 00 3 Workforce Development SME Matt Poland 8 $ 185.00 $ 1,480.00 4 Workforce Development Project Specialist Morgan Saridakis 16 $ 85.00 $ 1,360.00 SubTotal Task 2 64.00 $ g 44O N Task 3:Develop Survey PositlonlTitle Staff Name, Hours Hour Rate 'total 1 Project Manager/Workforce Development SME Jaime Ramirez 32 $ 165.00 $ 5,280.00 2 Workforce Development SME Carrie Thorne 16 $ 145.00 $ 2,320.00 3 Workforce Development SME Lisa Rice 4 $ 165.00 $ 660.00 4 Workforce Development SME Matt Poland 4 $ 185.00 740.00 5 Workforce Development Project Specialist Morgan Saridakis 6 $ 85.00 $ 510.00 SubTotal Task 3 62.00 5 9,510.00 Meeting/FocusTask 4:Plan,Prepare,and Facilitate Planning r N. PosftionfTFtle Staff Name Hours Hour Rate--Total - 1 Project Manager/Workforce Development SME Jaime Ramirez 12 $ 165.00 $ 1,980.00 2 Workforce Development SME Carrie Thorne 8 $ 145.00 $ 1,160.00 3 Workforce Development SME Lisa Rice 4 $ 165.00 $ 660.00 4 Workforce Development SME Matt Poland 4 $ 185.00 740.00 5 Workforce Development Project Specialist Morgan Saridakis 12 $ 85.00 $ 1,020.00 SubTotal Task 4 40.00 $ 51560.00 Task 5:Identify Useful and Relevant:Best Practices at Other AJICCs N. PosidonlTitla Staff Name Hours Haar Rate Toial 1 Project Manager/Workforce Development SME Jaime Ramirez 16 $ 165.00 $ 2,640,00 2 Workforce Development SME Matt Poland 16 $ 185.00 $ 2,960.00 3 Workforce Development Project Specialist Morgan Saridakis 8 $ 85.00 $ 680.00 Task 6: Draft Action Plan SuhTotal Task 5 40.00 $ 611280.00 723 PositionfTitie Staff Name Hours Hou Rate Total Project ManageNWorkforce Development SME Jaime Ramirez 24 $ 165.00 $ 3,960.00 Workforce Development SME Lisa Rice 4 $ 165.00 $ 660,00 Workforce Development SME Matt Poland 4 $ 185.00 $ 740.00 4 Workforce Development Project Specialist Morgan Saridakis 8 $ 85.00 680.00 SubTotal Task 6 40.00 $ 6,040.00 Total $ 40,020.00 Notes: PEP will collaborate with Santa Ana customer to provide the best value in pricing. Total project cost is based on full utilization of underlying staff and hours as provided. PEP can accommodate a total fixed price per task billing OR per hours used per task,whichever is most beneficial to Santa Ana customer. EXHIBIT C Consultant shall procure and maintain for the duration of the agreement, the following insurance coverages: MINIMUM SCOPE AND LIMIT OF INSURANCE Consultant shall maintain limits of insurance coverage in the following minimum amounts and shall be at least as broad as: • Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and$2,000,000 aggregate. • Automobile Liability (AL): Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with combined single limits of$1,000,000. In the event Consultant does not maintain commercial automobile liability insurance, City will accept evidence of personal automobile insurance with existing limits, which can be lower than$1,000,000. • Workers' Compensation (WIC): as required by the State of California, with statutory limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident, per employee, per policy for bodily injury or disease. This requirement can be waived if Consultant has no employees. If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant.Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Other Insurance Provisions The insurance policies are to contain,or be endorsed to contain, the following provisions: I. CGL and AL policies: City of Santa Ana, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials,parts, equipment, and personnel furnished in connection with such work or operations. 2. All required insurance policies: Insurance company(ies)agrees to waive all rights of subrogation against City, its City Council, its officers, officials, employees, agents, and volunteers for Iosses paid under the terms of any policy which arise from work performed by Consultant for City. 3. All required insurance policies: For any claims related to this contract, Consultant's insurance coverage shall be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it. 4. All required insurance policies: A severability of interest provision must apply for all the additional insureds, ensuring that Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer's limits of liability. 1 EXHIBIT IBIT C 5. Each insurance policy required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non-renewed by the carrier, or materially changed except after thirty(30) days prior written notice has been given to City. Ten(10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment. 6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: City of Santa Ana, Attention: Community Development Agency, 801 W. Civic Center Drive, Ste. 200, M-76, Santa Ana, CA 92701. The name and location of the event should be included in the Description of Operations section of each certificate. Self-Insured Retentions Self-insured retentions must be declared to and approved by the City. City may require Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City. Verification of Coverage Consultant shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause)and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins.However, failure to obtain the required documents prior to the work beginning shall not waive Consultant's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Claims Made Policies If any of the required policies provide coverage on a claims-made basis: 1. The retroactive date must be shown and must be before the date of the contract or the beginning of work. 2. Insurance must be maintained and evidence of insurance must be provided for at least three(3)years after completion of work. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, Company must purchase "extended reporting" coverage for a minimum of three (3) years after completion of work. Subcontractors Consultant shall require and verify that all sub-contractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from sub-contractors. 2 EXHIBIT C Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 3