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SERVICE AGREEMENT (8)SERVICE AGREEMENT THIS SERVICE AGREEMENT (the "Agreement") is made and entered into thisoiot day of c.bel' 20 aP.(referred to as the "Effective Date", by and between COMMERCIAL RISK MANAGEMENT, INC. (referred to as the "Company") and THE CITY OF CLEARWATER (referred to herein as the "Self -Insured"). The Company and the Self -Insured may sometimes be referred to herein individually as a "Party" and collectively as the "Parties." In consideration of the mutual promises, covenants, and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Placement of Insurance Policy. The Company and Self -Insured agree the excess workers' compensation and employer's liability insurance coverage is placed by others not a Party to this Agreement. 2. Services. From and after the Effective Date and until this Agreement otherwise expires or terminates as provided herein, the Company will furnish claims handling, and statistical data, including filing of all forms and reports (from data supplied by the Self -Insured) as required by the Florida Department of Financial Services. The Company acknowledges that files containing the records of the Self-Insured's claims shall belong to the Self -Insured, provided that the Company shall have the right to retain copies of any and all such records to the extent determined appropriate by the Company. Company shall keep all such files and records of the Self -Insured confidential unless otherwise required by law. 3. Self-Insured's Responsibilities. Self -Insured shall designate a person to act as Self-Insured's representative who shall have the authority to transmit instructions, receive information, make decisions, and in general to act as liaison between Self -Insured and Company relating to this Agreement and the services to be performed hereunder. Self -Insured Representative shall act reasonably and promptly in responding to any inquiries from Company and in confirming Company's completion of performance of the Services. 4. Term and Termination. A. This Agreement, shall be in effect for Workers' Compensation Claims Servicing for all new reported claims as of the inception of this agreement and the takeover and handling of all prior claims closed and open through December 31, 2024, pursuant to the agreement between Company and the City of Sarasota, resulting from Solicitation 21-61 BK, Workers' Compensation Third Party Administrator, dated September 3, 2021. Telephonic Nurse Case Management can be provided by CRM, Inc. and billed at $82.00 per hour. Assignment is authorized by the Self -Insured, the City of Clearwater. Section 111 MMSEA Services, queries and reporting is included in our Service Fee. [04-09830 /299386/1] Page 1 of 6 Service Fee includes system access for input of FROI (Notice of Injury) Service Fee Includes check stock and check writing User Credentials to the CRM, Inc. Claims System Unclaimed Property Reporting 1099 Reporting to IRS All Unit Statistical Filings (SI 17) Bill Review/RePricing and Network Access will be provided by CorVel through existing agreement between the City of Clearwater and CorVel. B. Either Party shall have the right to terminate this Agreement during the Initial Term or any Renewal Term by giving the other Party not less than sixty (60) days' advance written notice of termination (the "Termination"). Any such Termination of this Agreement shall be subject to all of the applicable terms and provisions of this Agreement. 5. Effect on Services of Termination and Other Events. A. In the event of any Termination of this Agreement, the Company agrees to continue to provide claims adjusting services on all claims incurred during the period that this Agreement was in effect, if requested to do so by the Self -Insured, for a maximum period of ninety (90) days. The Company shall be entitled to a fee for such continuing claims adjusting services equal to a pro rata portion of the Annual Service Fee specified below, payable monthly as invoiced by the Company. B. The Self -Insured shall further pay to the Company an administrative fee for tail coverage in an amount to be negotiated between the Parties, which administrative fee shall not exceed ten percent (10%) of paid loss, and which administrative fee shall be payable on a monthly basis as invoiced by the Company C. In the event claims files and claims servicing responsibilities are transferred to a new service company, the Company will provide an accounting of all claims and claims activity to the new service company. Upon the transfer of the files and final accounting of the claims activity, the Company shall be released from all further responsibility and liability under this Agreement.. D. In the event of the insolvency of the Self -Insured, the Company will provide claims adjusting services on all claims incurred during the period that this Agreement was in effect for a maximum period of ninety (90) days or until relieved of this responsibility by the Division of Workers' Compensation of the Department of Financial Services. The Company shall be entitled to a fee for such continuing claims adjusting services equal to a [04-09830 /299386/1] Page 2 of 6 pro rata portion of the Annual Service Fee specified below, payable monthly as invoiced by the Company 6. Annual Service Fee. The Self -Insured shall pay to the Company, for the Company's services under this Agreement (except as otherwise provided in this Agreement), an annual service fee (referred to herein as the "Annual Service Fee"). The Annual Service Fee for the Initial Term shall be $56,000.00 and shall be billed monthly in arrears with payment due within 30 days after receipt. The cost of tail coverage for the Initial Term and for each one-year Renewal Term will be included in the Annual Service Fee. The Company agrees to this Annual Service Fee for each renewal term through December 31, 2024. Fees for subsequent years will increase by 2.5% over the previous year's fee, if agreement is renewed by the City of Sarasota for subsequent terms beyond December 31, 2024, pursuant to the agreement between Company and the City of Sarasota resulting from Solicitation 21-61 BK, Workers' Compensation Third Party Administrator, dated September 3, 2021. In addition it is agreed that the Self -Insured will pay to the Company a one time Data Conversion Fee of $3,500.00, billable immediately upon completion of the data conversion. 7. Claims Expenses. All claim expenses commonly referred to in the insurance industry as "Allocated Claims Expenses" shall be the responsibility of and paid by, the Self -Insured. Without limiting the generality of the immediately preceding sentence, the term "Allocated Claims Expenses" shall include such items as attorneys' fees, court costs and independent investigative claims costs. 8. Warranties. A. Company represents and warrants to the Self -Insured that all service provided hereunder will (a) be performed in accordance with this Agreement, (b) comply with all laws, rules and regulations that apply to its performance, and (c) will be performed in a good and workmanlike manner using qualified personnel, consistent with the standards of the profession. B. OTHER THAN THE EXPRESS WARRANTIES CONTAINED HEREIN, COMPANY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE 9 Limitation of Liability. EXCEPT FOR WILLFUL MISCONDUCT, INTENTIONAL VIOLATION OF. LAW, OR AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR [04-09830 /299386/1] Page 3 of 6 ARISING OUT OF THIS AGREEMENT. EXCEPT FOR THE ABOVE REFERENCED VIOLATIONS, THE TOTAL LIABILITY OF A PARTY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF (i) THE TOTAL FEES PAID HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR (ii) ACTUAL DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE. 10.. [INTENTIONALLY OMITTED] 11. Notices. Each notice, request, demand, consent, approval or other communication required or permitted under this Agreement (collectively a "Notice") shall be valid only if it is (a) in writing and shall be sent by certified United States Mail or National Parcel Service, return receipt requested (b) addressed by the sender to the other party at its address and in the manner set forth below: (a) If to the Company: (b) If to the Self -Insured: COMMERCIAL RISK MANAGEMENT, INC. Post Office Box 18366 Tampa Florida 33679-8366 CITY OF CLEARWATER 100 S. Myrtle Avenue Clearwater, FL 33756 Except as otherwise provided herein, each Notice shall be effective on the earlier of its receipt, if delivered personally or by courier, or the third day after it (or the written confirmation of it) is postmarked for dispatch by first-class, postage prepaid, certified or registered, United States Mail, with return receipt requested (whether or not the return receipt is subsequently received by the sender). Any party wishing to change the person or address to which notices are to be given may do so by complying with the Notice provisions of this paragraph. 12 Miscellaneous. A. This Agreement embodies the entire agreement and understanding between the parties with respect to the subject matter hereof, expressly superseding all prior agreements and understandings, whether oral or written. B. No amendment, modification or attempted waiver of any provisions of this Agreement shall be binding upon either party to this Agreement unless reduced to writing and signed by or on behalf of each of the parties to this Agreement. C. The waiver by either party of any breach of any covenant or condition of this Agreement shall not be construed as a waiver of any subsequent breach of such covenant or condition or of the breach of any other covenant or condition contained in this Agreement. D. Any number of counterparts of this Agreement may be signed and delivered each of which shall be considered an original and all of which, together, shall constitute one and the same [04-09830 /299386/1] Page 4 of 6 instrument. Electronic signatures on this Agreement shall be considered as valid as ink signatures. E. The rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be utilized in the interpretation or construction of this Agreement. F. If either Party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party's reasonable control, including, without limitation, an act of God, pandemic or endemic conditions necessitating business closure by government order, fire, flood, earthquake, hurricane, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, telecommunications or Internet services, vandals, or hackers (a "force majeure event") the time for that Party's performance will be extended for the period of the delay or inability to perform due to such occurrence without liability to the other Party; provided, however, that Self -Insured will not be excused from the payment of any sums of money owed by Self -Insured to Company G. In the event that any provision of this Agreement is held to be illegal, or otherwise unenforceable, such provision will be severed and the remainder of the Agreement shall continue in full force and effect; provided, however, that if the severing of such provision results in a material alteration of this Agreement, the remaining provisions of this Agreement shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole H. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Florida. All claims, litigation or other proceedings under this Agreement shall be brought solely and exclusively in the Federal or State courts located in Pinellas County, Florida, and neither party shall claim or assert such courts are an improper or inconvenient venue. I. In the event any litigation shall be instituted for the purpose of enforcing any of the provisions of this Agreement, the prevailing party, as determined by the court having jurisdiction thereof, shall be entitled to recover from the non -prevailing party, in addition to all other relief, an amount equal to all costs and expenses incurred in connection with such litigation, including, without limitation, reasonable attorneys' fees at the pretrial level, the trial level and in connection with all appellate proceedings. J. Either party may assign its rights and delegate its duties under this Agreement to a successor entity in the event of a merger, acquisition, or sale of all or substantially all of its stock or business assets. Otherwise, neither party may assign any rights nor delegate any duties under this Agreement without the other party's prior written consent. Any delegation or assignment in violation of the foregoing provisions shall be void. K. The provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, and their respective successors and assigns. [04-09830 /299386/1] Page 5 of 6 IN WITNESS WHEREOF, the Company his caus d this Agreement to be executed by its undersigned officers duly authorized this da day o , 20o% and effective as of , 2023. COMMERCIAL RISK MANAGEMENT, INC. By: ATTEST: By: 1... o.A Its Chief Operations Officer COUNTERSIGNED: Approved as to form: Michael P. Fuino Senior Assistant City Attorney [04-09830 /299386/1] Page 6 of 6 Jon P. ennings City Manager Attest: oinr Rosem: rie Ca11 City Clerk