HomeMy WebLinkAboutR-2005-196 Zaremba Claims Services AgreementRESOLUTION NO. R-2005-196
A RESOLUTION authorizing and directing the City Manager of the City of
Yakima to enter into an Agreement with Zaremba Claims
Service—Yakima for the purpose of reviewing and investigating
property and general liability damage claims filed with and
against the City of Yakima.
WHEREAS, the City has been self-insured for most property and general
liability damage claims; and
WHEREAS, for the City of Yakima Transit Division, including the van pool
program, there is liability coverage through the Washington State Transit
Insurance Pool ("WSTIP"), which the City of Yakima joined effective September 1,
2005; and on December 13, 2005, the City Council is considering a resolution to
allow the City of Yakima to join the Cities Insurance Association of Washington
("CIAW"), which offers pooled insurance purchasing for liability coverage; and
WHEREAS, the City requires investigation and adjustment services
regarding such claims; and
WHEREAS, the City has previously contracted with Zaremba Claims
Service—Yakima ("ZCS") for these services; and
WHEREAS, ZCS is willing to continue to provide these claims investigation
and adjustment services to the City in accordance with the terms and conditions
of the attached Claims Service Agreement; and
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima to enter into an Agreement with Zaremba Claims Service—Yakima in
accordance with the terms and conditions of the attached Agreement, now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to
sign the Claims Service Agreement with Zaremba Claims Service—Yakima for the
purpose of obtaining investigation and adjustment services regarding property and
general liability damage claims filed with and against the City of Yakima.
ADOPTED BY THE CITY COUNCIL this hday of December, 2005.
ATTEST:
Paul P. George, Mayor
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City Clerk
CLAIMS SERVICE AGREEMENT
THIS CLAIMS SERVICE AGREEMENT (hereinafter the "Agreement") is
made and entered into by and between ZAREMBA CLAIMS SERVICE - YAKIMA,
P.O. Box 87, Yakima, Washington 98907 (hereinafter "ZCS"), and the CITY OF
YAKIMA, a municipal corporation, with its principal place of business at 129
North Second Street, Yakima, Washington 98901 (hereinafter the "City").
WHEREAS, the City has been previously self-insured for most property
and general liability damage claims; and for the City of Yakima Transit
Division, including the van pool program, there is liability coverage through the
Washington State Transit Insurance Pool ("WSTIP"), which the City of Yakima
joined effective September 1, 2005, with a $5,000 deductible; and on
December 13, 2005, the City Council will consider a resolution for the City of
Yakima to join the Cities Insurance Association of Washington ("CIAW"), which
offers pooled insurance purchasing for liability coverage with a $100,000
deductible;
WHEREAS, the City requires investigation and adjustment services
regarding such claims;
WHEREAS, ZCS is willing to provide said claims investigation and
adjustment services in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
and conditions set forth herein, it is agreed by and between the City and ZCS
as follows:
1. Scope of Services. ZCS shall provide the following claims investigation
and adjustment services to the City:
a. Review and investigate all property and general liability
damage claims filed with and against the City during the
term of this Agreement.
b. Provide the City and/or WSTIP and/or CIAW with a written
investigation report concerning each damage claim within
thirty (30) calendar days of receipt of the damage claim from
the City. In the event that more time is necessary to
complete the investigation report, a ZCS representative shall
contact and notify the appropriate attorney or his/her
designee at the City Legal Department and/or WSTIP and/or
CIAW. Each investigation report shall contain the following:
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a recommendation whether the claim should be denied or
accepted; if appropriate, an analysis of the validity of the
claimed damages; and, if appropriate, a recommended
settlement amount/ range for the claim.
c. In the event that the City attorney responsible for reviewing
an investigation report and/or WSTIP and/or CIAW
determines additional investigation services are necessary,
provide such services as directed by said attorney or his/her
designee and/or WSTIP and/or CIAW.
d. When a damage claim is accepted and a settlement
amount/range is approved by the City, ZCS shall take all
necessary steps to contact the damage claimant and resolve
the damage claim, including execution of an appropriate
release and settlement agreement by the damage claimant.
e. Provide accurate quarterly and annual claim reports in a
format acceptable to the City and Marsh Advantage America.
f. Furnish all damage claim forms necessary for proper claims
administration.
g.
Establish and maintain an investigation file for each damage
claim received by ZCS from the City. All such files shall be
the property of the City and may be inspected by a City
representative at a reasonable time with or without advance
notice.
h. Provide the City with e-mail access and voice mail with
individual mailboxes.
2. Term of Agreement. The term of this Agreement shall be for a period of
one (1) year commencing January 1, 2006, and terminating at 12 p.m. on
December 31, 2006, unless sooner terminated by either party in accordance
with Section 6 of this Agreement.
3. Consideration. In consideration of the damage claims investigation and
adjustment services to be performed by ZCS hereunder, the City shall pay ZCS
an annual fee of Thirty -One Thousand Six Hundred Twenty -Five Dollars
(S31,625.00). Each annual fee shall be paid by the City to ZCS on a quarterly
basis in payments of Seven Thousand Nine Hundred Six Dollars and 25/100
($7,906.25); provided, however, that payment of the entire remaining annual
fee shall become due when ZCS receives 110 damage claims in that year for
which claims investigation and adjustment services are necessary. The City
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shall make payment to ZCS within thirty (30) calendar days of receipt of each
quarterly billing; provided, however, that all such payments are expressly
conditioned upon ZCS providing services hereunder that are satisfactory to the
City.
Each annual fee represents consideration to ZCS for claims investigation
and adjustments services for 110 damage claims that are received that year
(damage claims where ZCS prepares just "incident" reports and no other
investigation and adjustment services are not counted as part of this annual
figure). The City shall pay ZCS the sum of Two Hundred and Sixty -Five Dollars
($265.00) for claims investigation and adjustment services for each additional
damage claim over 110 that is received by ZCS during that year.
ZCS shall provide accurate quarterly and annual claim reports in a
format acceptable to the City and Marsh Advantage America as required by
Section le of this Agreement for the first and second quarters of 2006 in
consideration for the compensation described in Section 3 above. The City will
pay ZCS Two Hundred Fifty Dollars ($250.00) per quarter for preparation of the
claims reports for the third and fourth quarters of 2006.
4. Payment of Accepted Damage Claims. When a damage claim and
corresponding settlement amount is accepted and approved by the City, the
necessary funds shall be made available by the City or WSTIP or CIAW to ZCS
for payment of the damage claim. Unless otherwise directed by the City,
payment of all damage claims by ZCS to the claimants is expressly conditioned
upon the respective claimant executing an appropriate release and settlement
agreement.
5. Payment of Allocated Loss Expenses. In addition to the claim service
fee required under Section 3 of this Agreement, the City shall pay all
reasonable and necessary "allocated loss expenses" incurred during and as a
result of the investigation and adjustment of damage claims against the City;
provided, however, that ZCS must obtain prior approval for these expenses
from the appropriate City attorney at the City Legal Department. These
expenses include fees and charges for commercial photography services, expert
witness services, witness fees, independent medical examinations, witness
travel, extraordinary travel for ZCS personnel (outside of Yakima County), court
reporter services, transcription services, obtaining public records, auto or
property appraisal services, and other similar costs or expenses.
6. Termination. The City or ZCS may terminate this Agreement, with or
without cause, by giving not less than sixty (60) calendar days' written notice of
termination to the other party. If Craig Nance is unable or unwilling to work at
ZCS, then the City may terminate this Agreement, with or without cause, by
giving not less than fifteen (15) calendar days' written notice of termination to
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ZCS. In the event of termination, and except as otherwise provided in this
Section, the City shall pay ZCS a pro -rata share of the applicable quarterly
payment through the termination date. With regard to the processing of
damage claims pending with ZCS at the time of termination, the City shall have
the option to directly investigate and adjust all such damage claims, or the City
may negotiate a fee with ZCS for all necessary investigation and adjusting
services to bring these pending damage claims to conclusion.
7. Status of Contractor. ZCS and the City understand and expressly agree
that ZCS is an independent contractor in the performance of each and every
part of this Agreement. ZCS and its employees shall make no claim of City
employment nor shall ZCS make any claim against the City for any related
employment benefits, social security, and/or retirement.
8. Taxes and Assessments. ZCS shall be solely responsible for and shall
pay all taxes, deductions, and assessments, including but not limited to federal
income tax, FICA, social security tax, assessments for unemployment and
industrial injury insurance, and other deductions from income which may be
required by law or assessed against either party as a result of this Agreement.
In the event the City is assessed a tax or assessment as a result of this
Agreement, ZCS shall pay the same before it becomes due.
9. Indemnification.
a. ZCS agrees to hold harmless, indemnify, and defend the City, its
elected officials, officers, employees, and agents from and against any and all
suits, actions, claims, liability, damages, judgments, costs and expenses
(including reasonable attorney's fees) which result from or arise out of the sole
negligence of ZCS, its officers, employees, and agents in connection with or
incidental to the performance or non-performance of this Agreement.
b. The City agrees to hold harmless, indemnify, and defend ZCS, its
officers, employees, and agents from and against any and all suits, actions,
claims, liability, damages, judgments, costs and expenses (including
reasonable attorney's fees) which result from or arise out of the sole negligence
of the City, its elected officials, officers, employees, and agents in connection
with or incidental to the performance or non-performance of this Agreement.
c. In the event that the officials, officers, agents, and/or employees of
both ZCS and the City are both negligent, each party shall be liable for its
contributory share of negligence for any resulting suits, actions, claims,
liability, damages, judgments, costs and expenses (including reasonable
attorney's fees).
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d. Nothing contained in this Section or this Agreement shall be
construed to create a liability to any third party or a right of indemnification in
any third party.
10. Insurance Provided by ZCS.
a. Commercial Liability Insurance. On or before the date this
Agreement is fully executed by the parties, ZCS shall provide the City with a
certificate of insurance as proof of commercial liability insurance with
minimum liability limit of One Million Dollars ($1,000,000.00) combined single
limit bodily injury and property damage. The certificate shall clearly state who
the provider is, the amount of coverage, the policy number, and when the
policy and provisions provided are in effect (any statement in the certificate to
the effect of "this certificate is issued as a matter of information only and
confers no right upon the certificate holder" shall be deleted). Said policy shall
be in effect for the duration of this Agreement. The policy shall name the City,
its elected officials, officers, agents, and employees as additional insureds, and
shall contain a clause that the insurer will not cancel or change the insurance
without first giving the City thirty (30) calendar days' prior written notice (any
language in the clause to the effect of "but failure to mail such notice shall
impose no obligation or liability of any kind upon the company" shall be
crossed out and initialed by the insurance agent). The insurance shall be with
an insurance company or companies rated A -VII or higher in Best's Guide and
admitted in the State of Washington.
b. Automobile Liability Insurance. On or before the date this
Agreement is fully executed, ZCS will identify those individuals who will use
their personal vehicles in conjunction with this Agreement. As proof of
insurance, each of those individuals will be required to furnish the City either a
certificate of insurance or a copy of the declarations page from their personal
automobile policy. Minimum limits required are $1,000,000 per occurrence
combined single limit bodily injury and property damage. Updated
declarations pages will be furnished to the City each time the personal
automobile policies renew. The insurance shall be with an insurance company
or companies rated A -VII or higher in Best's Guide and admitted in the State of
Washington.
c. Professional Liability Policy. On or before date this Agreement is
fully executed by the parties, ZCS shall provide the City with a certificate of
insurance as evidence of professional liability coverage with a limit of One
Million Dollars ($1,000,000.00) for each wrongful act and an annual aggregate
limit of Two Million Dollars ($2,000,000.00). The certificate shall clearly state
who the provider is, the amount of coverage, the policy number, and when the
policy and provisions provided are in effect. The insurance shall be with an
insurance company rated A -VII or higher in Best's Guide. The retroactive date
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of the insurance policy shall be on or before January 1, 1993, or shall provide
full prior acts. The insurance coverage shall remain in effect during the term of
this Agreement and for a minimum of three (3) years following the termination
of this Agreement.
11. No Insurance. It is understood the City does not maintain liability
insurance for ZCS and/or its employees.
12. Nondiscrimination Provision. During the performance of this
Agreement, ZCS shall not discriminate on the basis of race, age, color, sex,
religion, national origin, creed, marital status, political affiliation, or the
presence of any sensory, mental or physical handicap. This provision shall
include but not be limited to the following: employment, upgrading, demotion,
transfer, recruitment, advertising, layoff or termination, rates of pay or other
forms of compensation, selection for training, and the provision of services
under this Agreement.
13. Compliance with Law. ZCS agrees to perform those services under and
pursuant to this Agreement in full compliance with any and all applicable laws,
rules, and regulations adopted or promulgated by any governmental agency or
regulatory body, whether federal, state, local, or otherwise.
14. Non -Waiver. The waiver by ZCS or the City of the breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by either party or prevent
either party thereafter enforcing any such provision.
15. Assignment. This Agreement, or any interest herein, or claim
hereunder, shall not be assigned or transferred in whole or in part by ZCS to
any other person or entity without the prior written consent of the City. In the
event that such prior written consent to an assignment is granted, then the
assignee shall assume all duties, obligations, and liabilities of ZCS as stated
herein.
16. Severability. If any portion of this Agreement is changed per mutual
agreement or any portion is held invalid, the remainder of the Agreement shall
remain in full force and effect.
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17. Notices. Unless stated otherwise herein, all notices and demands shall
be in writing and sent or delivered to the parties to their addresses as follows:
TO CITY:
TO ZCS:
Finance Director
City of Yakima
129 North Second Street
Yakima, WA 98901
City Attorney
City of Yakima Legal Department
200 South Third Street
Yakima, WA 98901-2830
Craig M. Nance, Claims Manager
Zaremba Claims Service - Yakima
P. O. Box 87
Yakima, WA 98907
Fax Number: (509) 452-7236
or to such other addresses as the parties may hereafter designate in writing.
Notices and/or demands shall be sent by registered or certified mail, postage
prepaid or personally served. Such notices shall be deemed effective when
mailed or hand delivered at the addresses specified above.
18. Survival. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the term or
expiration of this Agreement and shall be binding on the parties to this
Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
20. Venue. The venue for any action to enforce or interpret this Agreement
shall lie in the Superior Court of Washington for Yakima County, Washington.
21. Integration and Supersession. This Agreement sets forth all of the
terms, conditions, and agreements of the parties relative to the subject matter
hereof and supersedes any and all such former agreements, which are hereby
declared terminated and of no further force and effect upon the execution and
delivery hereof. There are no terms, conditions, or agreements with respect
thereto except as herein provided, and no amendment or modification of this
Agreement shall be effective unless reduced to writing and executed by the
parties.
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CITY OF YAKIMA
ZAREMBA CLAIMS SERVICE INC.
R. A. Zais,'dr., City Manager ..•:'r . 'Nance
Its: Manager -Owner
Date: bc- /3, 1.00.5 Date: /Z —/ `.Y. -2O O �1
ATTEST:
By: �4
City Clerk
City Contract No.: 2005- /o?d
Resolution No42005- /9t'
State of Washington )
ss.
County of Yakima
I hereby certify that I know or have satisfactory evidence that Craig M.
Nance is the person who appeared before me, and said person acknowledged
that he signed this instrument, and on oath stated that he was authorized to
execute the instrument and acknowledged it as the Manager -Owner of
Zaremba Claims Service - Yakima, to be the free and voluntary act of such
party for the uses and purposes mentioned in this instrument.
SUBSCRIBED AND SWORN TO before me this / " day of December, 2005.
dev
Pii tname: ' ,Gpvo,Q M.
NOTARY PUBLIC in and for the State of
Washington, residing at yfael/7709 .
My commission expires .3-45--06 .
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. j
For Meeting of December 13, 2005
ITEM TITLE: Consideration of resolution authorizing Professional Services
Contract for Zaremba Claims Service - Yakima to review and
investigate property and general liability damage claims filed
against the City of Yakima.
SUBMITTED BY: Raymond L. Paolella, City Attorney and Helen A. Harvey, Assistant
City Attorney
Rita Anson, Finance Director and Cindy Epperson, Financial
Services Manager
CONTACT PERSON/TELEPHONE: Helen A. Harvey, Assistant City Attorney, WV
575-6030
Cindy Epperson, Financial Services Manager,
576-6644
SUMMARY EXPLANATION: The City of Yakima has been self-insured for many
years for most property and general liability damage claims. For the City of Yakima
Transit Division, including the van pool program, there is liability coverage through the
Washington State Transit Insurance Pool ("WSTIP"), which the City of Yakima joined
effective September 1, 2005; and on December 13, 2005, the City Council will consider a
resolution to authorize the City of Yakima to join the Cities Insurance Association of
Washington ("CIAW"), which offers pooled insurance purchasing for liability coverage.
The City requires professional services for the investigation and adjustment of these
claims. Local, prompt claims adjusting is important to help control claims expenses, and
also provides service to City residents who have legitimate claims. Zaremba Claims
Service - Yakima ("Zaremba") is willing to continue to provide claims investigation and
adjustment services in accordance with the terms of the enclosed Claims Service
Agreement. The City's current four-year contract with Zaremba ends on December 31,
2005. The one-year proposed Claims Service Agreement for professional services with
Zaremba commences on January 1, 2006, and continues until December 31, 2006.
Resolution X Ordinance Other (Specify)
Contract X Mail to (name and address): Craig M. Nance, Claims Manager, Zaremba
Claims Service -Yakima, P.O. Box 87, Yakima, WA 98907 Phone: 452-6527
Funding Source Risk Manaem -w Reserve Fund
er Mana
APPROVED FOR SUBMITTAL: City `�. , -`, g
STAFF RECOMMENDATION: Adopt Resolution.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION: Resolution adopted RESOLUTION NO. R-2005496