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HomeMy WebLinkAboutResolution - 2007-R0365 - Notify Wachovia Insurance Services Inc. Of Intent To Renew Its Contract - 08_09_2007Resolution No. 2007-RO365 August 9, 2007 Item No. 5.12 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Manager or her designee BE and is hereby authorized and directed to notify Wachovia Insurance Services, Inc., that the City of Lubbock desires to renew its contract of July 25, 2006, (Resolution No. 2006-RO0370) for health benefits consulting services and related documents for an additional one year term. Passed by the City Council this 9th day of August , 2007. DAVID A. MI LER, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS T6 CO Y,,dtes/Chief F/Vancial Officer APPROVED AS TO FORM: iQ 77 Don Vandiver, ttorney of Counse dgv/res/Wachovialns07Res July 30, 2007 PROFESSIONAL SERVICES/ CONSULTING AGREEMENT THIS PROFESSIONAL SERVICES/CONSULTING AGREEMENT (this "Agreement") is entered into this day of July 25, 2006, by and between the City of Lubbock, Texas (the "City") and Wachovia Insurance Services — Dallas Office (the "Consultant"). WHEREAS, the City desires, pursuant to the terms and conditions of this Agreement, to engage the Consultant to perform the services set forth herein; and WHEREAS, the Consultant desires to perform the described services pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the Consultant hereby agree as follows: 1. Services of Consultant. The Consultant shall serve as an independent contractor to provide the consulting services more particularly described in Exhibit "A", the City's Health Benefits Consulting Services — UP 06-044-MA and the Consultant's response thereto, attached hereto and incorporated herein by reference for all purposes (the "Services"). 2. Services Provided by the City. The City, in its sole discretion, may provide (at the City's sole cost and expense) the Consultant with such administrative assistance as may be reasonably required by the Consultant for the performance of the Services. 3. Term. This Agreement shall commence upon the complete execution hereof and, except for the provisions of this Agreement which survive termination, shall remain in full force and effect as between the City and the Consultant with regard to the Services until July 25, 2007, with option to renew for two additional one year terms until July 25, 2009 (the "Completion Date"). The Consultant hereby agrees to fully perform all the Services by the Completion Date, 4. Compensation. As compensation for the Services, the City shall pay the Consultant the sum of Eighty Thousand Dollars ($80,000.00) annually (the "Compensation"). The Consultant acknowledges and agrees that the Compensation shall constitute full payment to the Consultant and shall include, without limitation, costs of all supplies, materials, equipment, travel expenses, lodging, meals and all other expenses of any kind or nature incurred by the Consultant in the performance of the Services. The Consultant acknowledges and agrees that the Compensation is a fixed sum which may only be adjusted in accordance with the terms and conditions of this Agreement and after written approval by the City. It is understood that Wachovia Insurance Services, Inc. will not receive commissions / compensation from the insurance carriers for the policies that it places for Client as described in Exhibit "A". It is understood that if, during the term of this agreement, Wachovia Insurance Services cannot place a policy described in Exhibit "A" on a non -commissions or fee basis, or if Wachovia Insurance Services is offered any other form of remuneration for placement of a policy, Wachovia Insurance Services will disclose the amount of commission, fee or remuneration to the City of Lubbock. 5. Payment. The Consultant shall provide the City with invoices for consulting fees, in a form acceptable to the City, on a monthly basis. Invoices which are acceptable to the City shall be paid within thirty (30) days of receipt. 6. Adjustment of Compensation and/or Completion Date. In the event of any occurrence wholly beyond the Consultant's control which is not reasonably anticipatable or any other cause which the City, in its sole discretion, determines justifies an adjustment to the Compensation or the Completion Date, the City shall in writing make such adjustments to the Compensation or the Completion Date as the City, in its sole discretion, may approve. 7. Independent Contractor Arrangement. The Consultant is serving as an independent contractor only, and this Agreement will in no way create any joint venture or employment relationship between the Consultant and the City. The Consultant shall have no authority to bind the City in any contract, agreement or otherwise. The City shall have no obligation to: (i) provide training to the Consultant; (ii) instruct the Consultant as to when, where, or how the Consultant is to work; (iii) hire or supervise or pay any assistants for the Consultant; or (iv) furnish the Consultant with tools, materials or equipment. The City shall have no obligation to withhold from the Compensation any taxes, FICA, or federal or state unemployment insurance premiums. The Consultant shall not accrue leave, retirement, insurance, bonding, retirement, profit-sharing or any other benefits which may or may not be afforded employees of the City. S. Ownership/Use of Documents. Any report(s) and any other documents prepared by the Consultant with respect to the Services shall be the property of the City with all common law and statutory rights related thereto. The City shall have the right to use such documents for any purpose deemed appropriate by the City; provided however, the Consultant shall have no liability for any use of such documents by the City for any purpose unrelated to the Services. The Consultant shall provide the City with two copies of each document requested by the City in both hard copy and electronic form. THE CITY'S REVIEW, APPROVAL OR USE OF ANY AND ALL DOCUMENTS PREPARED BY THE CONSULTANT SHALL BE FOR THE CITY"S SOLE PURPOSE AND SHALL NOT IMPLY THE CITY'S REVIEW OF THE SAME, NOR OBLIGATE THE CITY TO REVIEW SAME FOR QUALITY, COMPLIANCE WITH ALL APPLICABLE STATUTES, CODES, RULES AND REGULATIONS OR OTHER LIKE MATTERS. ACCORDINGLY, NOTWITHSTANDING THAT ANY DOCUMENTS PREPARED BY THE CONSULTANT AND REVIEWED BY THE CITY OR ANY AGENT OR EMPLOYEE OF THE CITY, AND NOTWITHSTANDING ANY ADVICE OR ASSISTANCE WHICH MAY BE RENDERED TO THE CONSULTANT BY THE CITY OR THE CITY'S AGENTS OR EMPLOYEES, INCLUDING BUT NOT LIMITED TO THE CITY'S DESIGNATED REPRESENTATIVES, THE CITY SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION THEREWITH AND SHALL NOT BE RESPONSIBLE FOR ANY OMISSIONS OR ERRORS CONTAINED IN ANY SUCH DOCUMENT SUBMITTED TO THE CITY FOR REVIEW AND APPROVAL AND ANY SUCH CITY APPROVAL SHALL NOT CONSTITUTE A WAIVER OR RELEASE OF THE CONSULTANT HEREUNDER OR AS PROVIDED BY APPLICABLE LAW. THE PROVISIONS HEREOF AND THE ENFORCEMENT OF SUCH PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 9. Insurance. (a)Unless otherwise agreed to in writing by the parties, the Consultant acknowledges and agrees that the City shall have no duty to obtain and maintain any insurance including, but not limited to, a workers' compensation insurance policy, for the benefit of the Consultant. (b)The Consultant hereby agrees to certificates of insurance in the types and amounts outlined in Exhibit "A" attached hereto. 10. Dispute Resolution. The City and the Consultant are fully committed to working with each other and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements with respect to the Services to be performed by the Consultant pursuant to the terms of this Agreement. If disputes or disagreements do arise, the City and the Consultant each commit to resolve such disputes or disagreements in an amicable, professional, and expeditious manner so as to avoid unnecessary losses, delays, and disruptions to completion of the Services. The City and the Consultant will first attempt to resolve any disputes or disagreements at the field level through discussions between the parties' respective designated representatives. The Consultant shall continue to perform the Services and the City shall continue to satisfy its payment obligations to the Consultant pending the final resolution of any dispute or disagreement between the parties. 11. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas. 12. Termination; Suspension. (a) By the City. The City may terminate this Agreement immediately upon any breach of this Agreement by the Consultant. The City may also terminate this Agreement upon sixty days (60) days written notice to the Consultant for the City's convenience and without cause. Upon written notice to the Consultant, the City may for its convenience and without cause suspend performance of the Services by the Consultant for a period not to exceed sixty (60) consecutive days. In the event of a suspension by the City, the City shall equitably adjust the Compensation and the Completion Date as set forth in Paragraph 7 above. (b) By the Consultant. The Consultant may terminate this Agreement if the City fails to pay the Consultant in compliance with Paragraph 3 herein. Provided, however, that the Consultant must have first given the City written notice of such failure to pay and the City must have failed to cure such nonpayment within sixty (60) days of receipt of such notice. The Consultant may also terminate this Agreement if the City suspends Consultant's performance of the Services for a period in excess of ninety (90) consecutive days. In the event of a termination of this Agreement, the City shall pay Consultant an amount equal to the value of the Services actually rendered to the City by the Consultant as of the date of such termination. 13. Indemnification. The Consultant shall indemnify and hold harmless the City, its elected and appointed officials, employees, agents and representatives (the "Indemnified Parties") from all losses, claims, liabilities, injuries, damages, actions or causes of action, and any costs and expenses, including, without limitation, reasonable attorney's fees, of any type or description, brought, asserted or made for or on account of any injuries or damages received or sustained by any person or persons (including, without limitation, one of the Indemnified Parties) or property, arising out of relating to, or occasioned by the performance or lack of performance, errors, omissions, negligence or intentional acts of the Consultant, its agents, consultants, subcontractors or employees related to the Services and its duties and obligations under or pursuant to this Agreement, whether or not any other party contributes to such performance or lack of performance, errors, omissions, negligence or intentional acts of the Consultant, its agents, consultants, subcontractors or employees. Upon demand by the City, the Consultant shall diligently defend any indemnified matter relating to the Services and which is made or commenced against the City, whether alone or together with the Consultant or any other person, all at the Consultant's own cost and expense and by counsel to be approved by the City in the exercise of its reasonable judgment. In the alternative, at any time the City may elect to conduct its own defense through counsel selected by the City and at the cost and expense of the Consultant. Nothing in this Paragraph 13 shall limit or impair any rights or remedies of the City against the Consultant or any other person under any other provision of this Agreement or under applicable law. The Consultant shall not be required to indemnify the City if such indemnification would be a violation of a Texas statute. The terms of this Paragraph 13shall survive the termination of this Agreement. 14. Status of the Consultant. The Consultant hereby represents, promises and warrants to the City: that the Consultant is financially solvent and possesses sufficient experience, all required licenses, authority, personnel and working capital to complete the Services required under this Agreement. 15. Business Ethics Standards. The Consultant hereby acknowledges that it has reviewed the City's business ethics policy attached hereto in Exhibit "A" and incorporated herein by reference for all purposes. The Consultant represents to the City that it has not violated such standards in its dealings with the City and covenants that it will abide by such standards in the Consultant's performance of this Agreement, 16. Confidentiality. (a)The City considers all non-public information concerning the Services to be performed under the terms of this Agreement as well as any reports or other documentation related thereto to be confidential and proprietary unless otherwise expressly indicated in writing by the City to the Consultant. The Consultant shall not release any non-public information to any third party without the prior written consent of the City. (b) The Consultant and the City shall ensure compliance with federal regulations under the Health Insurance Portability and Accounting Act (HIPAA) regarding privacy of all protected health information (PHI) and shall take steps and do all things reasonably necessary to ensure that the terms of this Agreement, all , all information obtained during the term of this Agreement disclosed or made use of outside the business of such other party for the purposes of meeting their obligations under this Agreement remains confidential; provided, however, that the foregoing shall not apply to information: (i) provided to voluntary accreditation agencies, government agencies or third party payors as required by Law or consented to by the affected party; (ii) reasonable required by health care providers providing health care services to Eligible Members; (Ili) that either party can show was known to it prior to disclosure by the other party; or (iv) that is or becomes public knowledge through no fault of the party to whom the disclosure is made. 17. Assignment. The Consultant agrees that the duties and obligations of the Consultant under this Agreement are not assignable or transferable and the Consultant agrees not to subcontract any of the Services to be performed hereunder, without the prior written approval of the City. 18. Entire Agreement. This Agreement constitutes and expresses the entire agreement between the parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement shall not be amended or modified except by written instrument signed by both parties. 19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same Agreement. NOTWITHSTANDING ANY PROVISIONS HEREIN CONTAINED TO THE CONTRARY: W THE CITY OF LUBBOCK, TEXAS DOES NOT WAIVE SOVEREIGN IMMUNITY BY ITS EXECUTION OR DELIVERY OF THIS AGREEMENT OR BY ANY CONDUCT OF ITS REPRESENTATIVES UNDER THIS AGREEMENT, AND GO THE DISPUTE RESOLUTION PROCESS HEREIN PROVIDED DOES NOT AFFECT THE CITY OF LUBBOCK, TEXAS'S RIGHT TO ASSERT ALL CLAIMS AND DEFENSES IN ANY LEGAL PROCEEDING. EXECUTED this day of Wachovia Insurance Services, Inc. By: Name: Title: CITY OF LUBBOCK David A. M' er, Mayor l ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Leisa Hutcheson, Risk Manager APPROVED AS TO FORM: f r Sohn Knight, ,�' Assistant City Attorney