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HomeMy WebLinkAbout25M - AGMT - INSURANCE SRVSl 1 _ y CITY COUNCIL MEETING DATE: JUNE 21, 2016 TITLE: AGREEMENT WITH KEENAN & ASSOCIATES AS CONSULTANT FOR CITY'S VISION, LIFE, ACCIDENTAL DEATH & DISMEMBERMENT, LONG TERM DISABILITY, EMPLOYEE ASSISTANCE, RETIREE BILLING, AND SECTION 125 FLEXIBLE SPENDING ACCOUNTS AND AGREEMENT WITH DICK COOK INSURANCE SERVICES AS CONSULTANT FOR CITY'S GROUP DENTAL POLICIES (STATEGIC PLAN NO. 7,6) Iva &T-41 1, RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 19t Reading ❑ Ordinance on 2nd Reading 171 Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 1. Authorize the City Manager and Clerk of the Council to execute an agreement with Keenan & Associates to act as the Broker of Record /Consultant for the City's Group Vision", Life, Accidental Death & Dismemberment, Long Term Disability Insurance, Employee Assistance Program (EAP), Retiree Billing, and Section 125 Flexible Spending Accounts (FSA) for a term beginning June 21, 2016 through June 30, 2018, paid commission by the insurance carriers, subject to non - substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute an agreement with Dick Cook Insurance Services to act as the Broker of Record /Consultant for the City's Group Dental insurance Policies for a term beginning June 21, 2016 through June 30, 2018, paid commission by the insurance carriers, subject to non - substantive changes approved by the City Manager and City Attorney. 25M -1 Insurance Services Brokerage /Consulting Agreement with Keenan & Associates and Dick Cook Insurance Services June 21, 2016 Page 2 DISCUSSION On March 2, 2016, the City issued a Request for Proposal (RFP No. 16 -032) for Health Benefits Brokerage and Consulting Services for the purpose of selecting a broker /consultant to perform services for the City, including but not limited to plan design, administration of contracts, and negotiations of rates /contracts for the City's ancillary benefits. Nine firms responded to the RFP and were rated based on firm /team qualification, experience working with similar size accounts in public agencies, understanding of the project, references and compliance with the RFP, by a subcommittee of staff, and one external rater with expertise in the field of Benefits. The rating of the top three firms for broker /consultant of the Vision, Life, Accidental Death & Dismemberment, Long Term Disability Insurance, Employee Assistance Program (EAP), Retiree Billing, and Section 125 Flexible Spending Accounts (FSA) is as follows: Ranking Keenan & Associates 98.8 1 Will accept current commissions Wells Fargo 96.1 2 Annual amount NTE $70k Alliant 95.5 3 Will accept current commissions The rating of the top three firms for broker /consultant of the Dental Plans is as follows: Ranking Consultant Firm Final Percent Proposal Commission Cook Insurance Services 99.8 1 Accept standard commission or less Keenan & Associates 98.8 2 Will accept current commissions Mercer 97.5 3 Annual amount NTE $70k Based on the rating of each firm, staff recommends executing an agreement with Keenan & Associates (Exhibit 1) to act as the broker of record /consultant for the City's Group Vision, Life, Accidental Death & Dismemberment, Long Term Disability Insurance, Employee Assistance Program (EAP), Retiree Billing, and Section 125 Flexible Spending Accounts (FSA) and an agreement with Dick Cook Insurance Services (Exhibit 2) to act as the broker of record /consultant for the City's Dental Insurance Policies. The City does not pay any compensation directly to the broker of record /consultant under these agreements. All compensation to the broker of record /consultant is paid directly by the insurance carriers according to the current commission arrangements in place (Exhibit 3), which is based on industry standards ranging from zero to ten percent. The broker of record /consultant will notify the City of any change in commission structure and the agreement may be terminated by the City upon thirty (30) days written notice. 25M -2 Insurance Services Brokerage /Consulting Agreement with Keenan & Associates and Dick Cook Insurance Services June 21, 2016 Page 3 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 — Team Santa Ana, Objective #6 (provide a positive workplace environment that supports the health of its employees and celebrates its success). FISCAL IMPACT The fees associated with these agreements are paid by the insurance carriers. Commissions related to these agreements will be imbedded as part of the overall group insurance premium currently scheduled to be brought forth before Council on August 23, 2016. i� pl c Edward R Executive Director Personnel Services Agency Exhibits: 1. Keenan & Associates Agreement 2. Dick Cook Insurance Services Agreement 3. Current Insurance Commissions Table 25M -3 25M -4 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this 7th day of June 2016 by and between Keenan & Associates, a California Corporation, (hereinafter "Consultant "), and the City of Santa Aria, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of insurance products, and related services in conjunction with the health and welfare benefits provided to the City's eligible employees. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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 those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City and Consultant agree that City shall not pay any compensation to Consultant under this Agreement. All compensation to Consultant shall be directly paid by the insurance carriers to the Consultant according to the commission arrangements. b. Consultant agrees to accept current commission agreements in place with the insurance carriers and notify the City of any change in commission structure. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2018, unless terminated earlier in accordance with Section 15, below. The City may extend the term for one (1) additional three -year period upon the exercise of an option executed in writing by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor 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. Exhibit 1 25M -5 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 Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement. b, Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. 25M -6 (iii) Consultant agrees to provide thirty (30) days written notice prior to making any changes to their insurance that cause coverage levels to fall below the minimum requirements pursuant to this section. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees; consultants, 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 direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their 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. 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. 25M -7 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such 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 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. 12. 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: Clerk of the City Council 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: and Edward Raya, Executive Director of Personnel Services City of Santa Ana 20 Civic Center Plaza (M -24) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647- City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 25M -8 To Consultant: Keenan & Associates 2355 Crenshaw Blvd., Ste. 200 Torrance, CA 90501 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. 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 are 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: As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product 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. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable 25M -9 law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 17. DISPUTE RESOLUTION In the event of any dispute arising out of or relating to this Agreement, such dispute shall be resolved by submission to binding arbitration before Judicial Arbitration & Mediation Services ( "JAMS ") or ADR Services, at the claimant's choice, in Orange County, California, before a retired judge or justice. If the parties are unable to agree on a retired judge or justice, the selected arbitration service (JAMS or ADR Services) will select the arbitrator. In any such arbitration, the parties shall be entitled to take discovery in accordance with the provisions of the California Code of Civil Procedure, but either party may request that the arbitrator limit the amount or scope of such discovery, and in determining whether to do so, the arbitrator shall balance the need for the discovery against the parties' mutual desire to resolve disputes expeditiously and inexpensively. c. The prevailing party in any action, arbitration, or proceeding arising out of or to enforce any provision of this Agreement will be awarded reasonable attorneys' fees and costs incurred in that action, arbitration, or proceeding, or in the enforcement of any judgment or award rendered." 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. 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, 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. 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. 25M -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney pp By: A, i Laura Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Edward Raya Executive Director Personnel Services CITY OF SANTA ANA DAVID CAVAZOS City Manager CONSULTANT Steve Gedestad Municipalities Practice Leader Tax ID# 95- 2798626 25M -11 EXHIBIT A SCOPE OF SERVICES HEALTH BENEFITS BROKERAGE AND CONSULTING SERVICES DESCRIPTION AND SCOPE OF WORK Consultant shall provide Health Benefits Brokerage and Consulting Services and be a Broker of Record for the City's employee insurance benefits. The City is particularly interested in Consultant to offer creative, innovative approaches, with a proven track record, that allows the City to maintain quality benefit programs and contain or reduce costs. Consultant will perform a full range of benefit program services related to the acquisition, implementation, maintenance, communication and improvement of the City's employee insurance benefits. Consultant shall provide services for some or all of the group employee insurance benefits. Consultant shall provide services, including, but not limited to, the following: A. Procure group insurance coverage for Group Vision, Life, Accidental Death & Dismemberment, Long Term Disability Insurance, Employee Assistance Program (EAP), Retiree Billing, and Section 125 Flexible Spending Accounts (FSA); B. Representation in all negotiations with insurance providers on issues related to premiums, services, benefit level, plan design, special terms and conditions; C. Provide all renewal rates for the upcoming calendar year by July 151; D. Analyze existing coverage and identify or develop cost - saving alternative benefit strategies and plans; E. Assist in the development of long -range goals and strategies, including making recommendations and projections of potential savings; F. Provide quarterly claims experience reports; G Assist the City in monitoring and analyzing experience trends and providing timely alerts on changing patterns and appropriate recommendations; H. Provide information and recommendations regarding employee benefit issues, trends, existing, proposed and new State and /or Federal legislation (i.e. COBRA, HIPAA, ACA, IRS Rules and regulations); I. Upon request, provide, maintain and update comparison reports of other public and /or private companies' benefit plan offerings and costs to determine their competitiveness with the City's programs. Upon request, provide access to published benefit- related survey information; K. Be available to provide consultation on plan interpretation, explanation of plans and problem resolution; L. Be available to provide assistance to staff, employees and retirees with issues involving billing, claims, eligibility, problems, disputes, interpretation of contracts and services, changes and general troubleshooting; M. Be available to attend meetings with City staff, employees and /or retirees to facilitate and assist in the management of the City's employee benefit plans; 25M -12 N. Be available to attend the City's annual open enrollment health fair usually held in September each year; O. Submit annual reports detailing compensation and/or commissions received from contracted carriers of the City; P, Coordinate the flow of information between staff and contracted carriers; Q. Manage plan transitions as necessary; R. Be available to assist staff with obtaining health benefits program materials; S. Be available to provide various types of reports as needed; T. Be available to provide information on new products as requested. 25M -13 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 25M -14 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this 7th day of June 2016 by and between Dick Cook Insurance Services, a sole proprietorship, (hereinafter "Consultant "), California insurance broker license #0567783 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 (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of insurance products, and related services in conjunction with the dental benefits provided to the City's eligible employees. Consultant represents that Consultant is able and willing to provide such services to the City. 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: SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City and Consultant agree that City shall not pay any compensation to Consultant under this Agreement, All compensation to Consultant shall be directly paid by the insurance carriers to the Consultant according to the commission arrangements. b. Consultant agrees to accept current commission agreements in place with the insurance carriers and notify the City of any change in commission structure. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2018, unless terminated earlier in accordance with Section 15, below. The City may extend the term for one (1) additional three -year period upon the exercise of an option executed in writing by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor 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. Exhibit 2. 25M -15 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 Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance, In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of 25M -16 this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. T. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City; its officers, agents, employees, consultants, 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 direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their 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. 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. 25M -17 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such 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 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. 12. 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: Clerk of the City Council 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: are Edward Raya, Executive Director of Personnel Services City of Santa Ana 20 Civic Center Plaza (M -24) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647- City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 25M -18 To Consultant: Dick Cook Insurance Services 814 Hibiscus Way Placentia, CA 92870 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. 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 are 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. 1s. 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 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. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable 25M -19 law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 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 necessary licenses, 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. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Rossini Senior Assistant City Attorney CITY OF SANTA ANA DAVID CAVAZOS City Manager 25M -20 RECOMMENDED FOR APPROVAL: Edward Raya Executive Director Personnel Services CONSULTANT Dick Cook President 25M -21 EXHIBIT A SCOPE OF SERVICES HEALTH BENEFITS BROKERAGE AND CONSULTING SERVICES DESCRIPTION AND SCOPE OF WORK Consultant shall provide Health Benefits Brokerage and Consulting Services and be a Broker of Record for the City's employee insurance benefits. The City is particularly interested in Consultant to offer creative, innovative approaches, with a proven track record, that allows the City to maintain quality benefit programs and contain or reduce costs. Consultant will perform a full range of benefit program services related to the acquisition, implementation, maintenance, communication and improvement of the City's employee insurance benefits. Consultant shall provide services for some or all of the group employee insurance benefits. Consultant shall provide services, including, but not limited to, the following: A. Procure group insurance coverage for Dental Insurance; B. Representation in all negotiations with insurance providers on issues related to premiums, services, benefit level, plan design, special terms and conditions; C. Provide all renewal rates for the upcoming calendar year by July IS% D. Analyze existing coverage and identify or develop cost - saving alternative benefit strategies and plans; E. Assist in the development of long -range goals and strategies, including making recommendations and projections of potential savings; F. Provide quarterly claims experience reports; G Assist the City in monitoring and analyzing experience trends and providing timely alerts on changing patterns and appropriate recommendations; H. Provide information and recommendations regarding employee benefit issues, trends, existing, proposed and new State and /or Federal legislation (i.e. COBRA, HIPAA, ACA, IRS Rules and regulations); I. Upon request, provide, maintain and update comparison reports of other public and /or private companies' benefit plan offerings and costs to determine their competitiveness with the City's programs. J. Upon request, provide access to published benefit- related survey information; K. Be available to provide consultation on plan interpretation, explanation of plans and problem resolution; L. Be available to provide assistance to staff, employees and retirees with issues involving billing, claims, eligibility, problems, disputes, interpretation of contracts and services, changes and general troubleshooting; M. Be available to attend meetings with City staff, employees and /or retirees to facilitate and assist in the management of the City's employee benefit plans; N. Be available to attend the City's annual open enrollment health fair usually held in September each year; O. Submit annual reports detailing compensation and /or commissions received from contracted 25M -22 carriers of the City; P. Coordinate the flow of information between staff and contracted carriers; Q. Manage plan transitions as necessary; R. Be available to assist staff with obtaining health benefits program materials; S. Be available to provide various types of reports as needed; T. Be available to provide Information on new products as requested. 25M -23 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective this endorsement form as a part of Policy # ._ Issued to — Named Insured Countersigned by — Authorized Representative 25M -24 v v i Q G 3 e u° N R N 0 m d �A U Q 3 C NM4, N s W 1 v o .c m` a +° ° I:T m ° r rn C k m a N N C C m V Ln N r-j V? V} i/} M ,C a in 4j). V). j c v c Q u a O L N h y O� r. d' Ln W p NO o 3 OY ri� N N N rr-I M O N o O �. M 00 OD Ln 0 0 0 0 U to M O N O N, v U p o m O •a •Q L° O QI s s� � Qj L` •r *Z-4w .� ® O �r �' Ir 25M -26