Attachment 1CLERK DEPARTMENT
AGR 10.2111
IHH
AGREEMENT FOR WORKERS' COMPENSATION CLAIMS ADMIN jRATION
CONSULTANT SERVICES REC
THIS AGREEMENT is entered into this `t'T day of June, 2010,' &hd-between-the- ------- --
Town of Los Gatos, State of California, herein called the "Town", and Innovative Claim Solutions,
Inc., engaged in providing workers' compensation administration consulting services herein called
the "Consultant".
RECITALS
A. The Town endeavors to ensure the proper administration of its self -insured workers'
compensation program.
B. The Town desires to engage a workers' compensation administration consultant to provide
high -quality claims administration services for the Town's workers' compensation program,
because of Consultant's experience and qualifications to perform the desired work.
C. The Consultant represents and affirms that it is qualified and willing to perform the desired
work pursuant to this Agreement.
AGREEMENTS
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Scope of Services. The Consultant shall provide the services as set forth in the "Scope of
Services", referred to as Exhibit A and incorporated herein by reference.
2. Incorporated Terms. The Consultant shall provide services in accordance with the terms
as set forth in the "Incorporated Terms", referred to as Exhibit B and incorporated herein by
reference.
Any violation of the terms and conditions of this contract shall be identified in writing by the
Town. After a thirty day resolution period, commencing on the date of mailing of written
notice, continued violations by Consultant shall result in a 10% monthly reduction in fees
until the condition is resolved to the satisfaction of the Town. Such right shall not limit the
Town's right to terminate this contract if the Town determines that it is in the best interest
to do so, in the Town's sole discretion and with or without cause.
3. Time of Performance. The services of the Consultant shall commence July 1, 2010, for
a three year contract period, ending June 30, 2013. The services of the Consultant are to
commence upon the execution of this Agreement and issuance of a Town purchase order.
The purchase order shall issue upon receipt by the Town of evidence of insurance and a
Town business license as required by this Agreement.
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4. Compliance with Laws. The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Consultant
represents and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Consultant to practice its
profession. Consultant represents and warrants to Town that Consultant shall, at its sole
cost and expense, keep in effect or obtain at all times during the term of this Agreement any
licenses, permits, and approvals which are legally required for Consultant to practice its
profession. Consultant shall maintain a Town of Los Gatos business license pursuant to
Chapter 14 of the Code of the Town of Los Gatos.
5. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
6. Information/Report Handling. All documents furnished to Consultant by the Town and
all reports and supportive data prepared by the Consultant under this Agreement are the
Town's property and shall be made available for retrieval by the Town upon the completion
of Consultant's services or at the Town's written request. All reports, information, data, and
exhibits prepared or assembled by Consultant in connection with the performance of its
services pursuant to this Agreement are confidential until released by the Town to the
public, and the Consultant shall not make any of the these documents or information
available to any individual or organization not employed by the Consultant or the Town
without the written consent of the Town before such release. The Town acknowledges that
the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose
of evaluating a defined project, and Town's use of the information contained in the reports
prepared by the Consultant in connection with other projects shall be solely at Town's risk,
unless Consultant expressly consents to such use in writing. Town further agrees that it will
not appropriate any methodology or technique of Consultant which is and has been
confirmed in writing by Consultant to be a trade secret of Consultant.
7. Compensation. Compensation for Consultant's professional services shall not exceed the
amounts set forth in the "Compensation Schedule", referred to as Exhibit C and incorporated
herein by reference. Payment shall be net thirty (30) days.
Billing shall be accompanied by a detailed explanation of the work performed by whom at
what rate and on what date. Also, documents or other pertinent materials shall be
submitted for Town review, even if only in partial or draft form.
All invoices and statements to the Town shall reference the Town's purchase order number
and be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95030
Statements:
Town of Los Gatos
Attn: Finance Department
P.O. Box 655
Los Gatos, CA 95030
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8. Availability of Records. Consultant shall maintain the records supporting this billing for
not Tess than three (3) years following completion of the work under this Agreement.
Consultant shall make these records available to authorized personnel of the Town at the
Consultant's. offices during business hours upon written request of the Town.
9. Project Manager. The Project Manager for the Consultant for the work under this
Agreement shall be:
Gary Archibald, CIO, President
11030 White Rock Road, Suite 210
Rancho Cordova, CA 95670
Phone: (916) 852-8588 Fax: (916)852-8505
Unless otherwise specified, consultant contact with Town shall be limited to the Human
Resources Director, Human Resources Specialist, Town Attorney, Assistant Town Manager or
their designee.
10. Assignability and Subcontracting. The services to be performed under this Agreement
are unique and personal to the Consultant. No portion of these services shall be assigned or
subcontracted without the written consent of the Town.
11. Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
To Town:
To Consultant:
Rumi Portillo
Director of Human Resources
110 E. Main Street
P. O. Box 949
Los Gatos, CA 95031
Gary Archibald, CIO, President
11030 White Rock Road, Suite 210
Rancho Cordova, CA 95670
or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
12. Independent Contractor. It is understood that the Consultant, in the performance of the
work and services agreed to be performed, shall act as and be an independent contractor
and not an agent or employee of the Town. As an independent contractor he/she shall not
obtain any rights to retirement benefits or other benefits which accrue to Town employee(s).
With prior written consent, the Consultant may perform some obligations under this
Agreement by subcontracting, but may not delegate ultimate responsibility for performance
or assign or transfer interests under this Agreement.
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Consultant agrees to testify in any litigation brought regarding the subject of the work to be
performed under this Agreement. Consultant shall be compensated for its costs and
expenses in preparing for, traveling to, and testifying in such matters at its then current
hourly rates of compensation, unless such litigation is brought by Consultant or is based on
allegations of Consultant's negligent performance or wrongdoing.
13. Conflict of Interest. Consultant understands that its professional responsibility is solely to
the Town. The Consultant has and shall not obtain any holding or interest within the Town
of Los Gatos. Consultant has no business holdings or agreements with any individual
member of the Staff or management of the Town or its representatives nor shall it enter into
any such holdings or agreements. In addition, Consultant warrants that it does not
presently and shall not acquire any direct or indirect interest adverse to those of the Town in
the subject of this Agreement, and it shall immediately disassociate itself from such an
interest should it discover it has done so and shall, at the Town's sole discretion, divest itself
of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure
that it does not employ a person having such an interest in this performance of this
Agreement. If after employment of a person, Consultant discovers it has employed a person
with a direct or indirect interest that would conflict with its performance of this Agreement,
Consultant shall promptly notify Town of this employment relationship, and shall, at the
Town's sole discretion, sever any such employment relationship.
14. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate
against persons employed or seeking employment with them on the basis of age, sex, color,
race, marital status, sexual orientation, ancestry, physical or mental disability, national
origin, religion, or medical condition, unless based upon a bona fide occupational
qualification pursuant to the California Fair Employment & Housing Act.
16. Indemnification. Each party shall defend, indemnify and hold harmless the other party,
and its directors, officers, employees, consultants, affiliates and agents from and against any
and all claims, demands, suits, causes of action, awards, penalties, judgments and liabilities,
including, without limitation, attorneys' fees and costs arising from any actual or alleged
negligent, intentional or wrongful acts or omissions committed by the party or its employees,
consultants,. agents or other individuals working for the party arising out of or related to
performance under this Agreement, save and except claims, demands, suits, causes of
action, awards, penalties, judgments and liabilities arising through the negligence or
intentional wrongful misconduct or omission of the other party, whereupon the relative
liabilities shall be attributed and assessed by legal process. Notwithstanding, Consultant
shall have no liability or obligation to the Town in the event the act or omission giving rise to
a claim was directed in writing by the Town contrary to the written recommendation of
Consultant. The duty to indemnify and hold harmless shall survive the termination of this
Agreement and shall include the duty to pay all reasonable costs, attorneys' fees, expenses
and liabilities incurred in the investigation or defense of any claim or suit.
Town shall not be liable to Consultant for personal injury of employees or property damage
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sustained by Consultant in the performance of the services specified in this Agreement.
Penalties and Fines Under Workers' Compensation (WC) Laws:
Consultant and the Town acknowledge that there are various penalties and administrative
fines that are contained in the State of California Workers' Compensation laws that may be
imposed on ;both employers and claim administrators.
Notwithstanding the indemnification provisions set forth above, the parties expressly agree
that:
(i) Consultant shall be responsible for any fines or penalties associated with questionable or
controverted claims which Consultant denies without first consulting and obtaining approval
by Town for denial of the claim(s). Consultant will not be responsible for any fines or
penalties levied by the Division of Workers' Compensation or any other judicial or quasi-
judicial organization for improper denial of a claim(s), if over the objections of Consultant,
Consultant denied said claim(s) at the direction of the Town.
(ii) The Town shall be responsible for all penalties where Consultant has not been given
sufficient notice such that Consultant has had at least five (5) working days in which to
investigate the claim and to pay temporary disability or send the required wage continuation
notice before the penalties were assessed. Consultant shall be responsible for all penalties
in which it has had five (5) or more working days in which to investigate and pay temporary
disability or send a wage continuation notice. For the purpose of this section "working day"
means all days except Saturdays, Sundays and Town observed holidays.
(iii) Any penalties and fines arising under WC Laws caused by failure of Consultant to
perform its obligations under this Agreement shall be paid by Consultant.
(iv) Any penalties and fines arising under the WC Laws caused by failure of the Town to
perform its obligations under this Agreement shall be paid by the Town.
Notice of Penalties:
Consultant agrees to use its best efforts to promptly notify the Town of situations that they
discover which may result in penalties.
Survival:
The provisions of this Section 16 regarding penalties shall survive any termination of this
Agreement for a period of three (3) years.
17. Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of a
subsequent breach of the same or any other provision of this Agreement.
18. Governing Law. This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
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Agreement shall be in the Superior or Municipal Court of the County of Santa Clara.
19. Termination of Agreement. The Town and the Consultant shall have the right to
terminate this agreement with or without cause by giving not less than sixty (60) days
written notice of termination. In the event of termination, the Consultant shall make
available for retrieval by the Town all files, documents, reports, performed to date by the
Consultant. In the event of such termination, Town shall pay Consultant an amount that
bears the same ratio to the maximum contract price as the work delivered to the Town bears
to completed services contemplated under this Agreement pursuant to EXHIBIT A attached
hereto, unless such termination is made for cause, in which event, compensation, if any,
shall be adjusted in light of the particular facts and circumstances involved in such
termination.
In addition, : in the event the Town purchases Workers' Compensation Insurance, or its
Certificate of Consent to Self -Insure is rescinded or revoked, this Agreement shall
automatically terminate upon the effective date of such event.
Certain Rights After Termination: Upon termination of this Agreement, a final
accounting shall be made of all fees and other amounts payable to Innovative
Claim Solutions, Inc. pursuant to this Agreement and of any funds belonging to
the Town in the possession of Innovative Claim Solutions, Inc., any balance due
and owing Innovative Claim Solutions, Inc. or the Town, as the case may be, will
be promptly paid based on such accounting. In addition, all original claim files,
records and reports in the possession of Innovative Claim Solutions, Inc. and
pertaining to employee claims subject to this agreement shall be made available
for retrieval by the Town or its designee upon request following termination of
this Agreement.
20. Amendment. No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Consultant.
1. Disputes. In any dispute over any aspect of this Agreement, the prevailing party
shall be entitled to reasonable attorney's fees, including costs of appeal.
Any disputes arising from or related to this Agreement may be resolved and determined
through binding arbitration before the American Arbitration Association, pursuant to the
Commercial. Arbitration Rules.
21. Entire Agreement. This Agreement, including Exhibits A through D, constitutes the
complete and exclusive statement of the Agreement between the Town and Consultant. No
terms, conditions, understandings or agreements purporting to modify or vary this
Agreement, unless hereafter made in writing and signed by the party to be bound, shall be
binding on either party.
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IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the
date indicated on page one (1).
Town of Los Gatos
Ru 'i Portillo, HR\Director
To 9f Los Gat
6)
Greg Larson, Town Manager
Town of Los Gatos
ATTEST:
Clerk of the Town of Los Gatos,
Los Gatos, California
J c •e Rose, Town Clerk
Approved as to Form:
ichael Martello, Interim Town Attorney
Consultant:
Gary Archib
Innovative CI
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0, President
Solutions, Inc.
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