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Ordinance No. 10,913ORDINANCE NO. 10,913 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AN AGREEMENT WITH AS &G CLAIMS ADMINISTRATION, INC., AS THE THIRD PARTY ADMINISTRATOR FOR THE ADMINISTATION OF THE CITY'S WORKERS' COMPENSATION PROGRAM; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED TWENTY -FIVE THOUSAND ONE HUNDRED THIRTY -FIVE AND NO 1100 DOLLARS ($25,135.00) FOR THE SERVICES ASSOCIATED WITH THE CITY'S WORKERS' COMPENSATION PROGRAM; AUTHORIZING THE ACQUISITION FROM MIDWEST EMPLOYERS CASUALTY COMPANY OF THE CITY'S EXCESS WORKERS' COMPENSATION INSURANCE; AUTHORIZING PAYMENT IN THE AMOUNT OF FIFTY -ONE THOUSAND THREE HUNDRED SIX AND NO /100 DOLLARS ($51,306.00) FOR THE EXCESS WORKERS' COMPENSATION INSURANCE PROGRAM; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to an agreement with AS &G Claims Administration, Inc., as the third party administrator for the administration of the City's Workers' Compensation Program on behalf of the City of Baytown. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to AS &G Claims Administration, Inc., in an amount not to exceed TWENTY -FIVE THOUSAND ONE HUNDRED THIRTY -FIVE AND NO 1100 DOLLARS ($25,135.00), pursuant to the agreement authorized in Section I hereof. Section 3: That for the third party administrator services, the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less; however, the original contract price may not be increased by more than twenty -five percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor to such decrease. Section 4: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to acquire from Midwest Employers Casualty Company the City's Excess Workers' Compensation Insurance. Section 5: That the City Council of the City of Baytown authorizes payment to Midwest Employers Casualty Company in an amount of FIFTY -ONE THOUSAND THREE I-IlJNDRED SIX AND NO/100 DOLLARS ($51,306,00) Im the services associated with the Excess Workers' Compensation Insurance Program, pursuant to the purchase authorized in Section 4 hereof. Section 6: This ordinance shall take ef('ect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSE'D by the affirmative vote of the City Council of the City offlaytown this the 26"' day of.fune, 2008, KAY'VIIE DARN LL, City Clerk APPROVED AS TO FORM: BRANDON CAPETILLO, N/layor Pro 'fem " J A P, 1%4 AA t vl; ,IdNACIO RAMIRI Z, SR., ()ty Attorney R�',KwcW'Fdcs,('ity 26, 11 2 AGREEMENT FOR THIRD PARTY ADMINISTRATOR SERVICES FOR THE CITY OF BAYTOWN'S WORKERS' COMPENSATION PROGRAM THE STATE OF TEXAS § COUNTY OF HARRIS § This Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program (the "Agreement ") is made and entered into between the CITY OF BAYTOWN, a home -rule municipality located in Harris and Chambers Counties, Texas, (the "City ") and AS &G CLAIMS ADMINISTRATION, INC., a Texas corporation (the "Administrator "). WITNESSETH; 1. TERM, 1.01 Transition Period. The Administrator shall perform those duties as specified in Section 2.01 hereof beginning July 1, 2008, and complete the same by September 30, 2008 (the "Transition Period "). 1.02 Agreement Term. The Administrator shall perform those duties as specified in Section 2.02 of hereof beginning October 1, 2008, and complete the same by September 30, 2009 (the "Agreement Term "). 1.03 Option Terms. The City at its sole option may extend the term of this Agreement for three additional one -year terms. Each one -year option (the "Option Term ") may be exercised by the City by giving a written notice to the Administrator at least thirty (30) days prior to the expiration of the then current term. 2. SCOPE OF WORK. 2.01 Transition Period. During the Transition period, the Administrator shall perform the Scope of Work Specified in Section 3.H of the Workers' Compensation — Third Party Administrator Request for Proposal No. 0804 -04, which is incorporated herein by this reference for this intent and purpose (the "UP"). 2.02 Agreement Term and Option Terms During the Agreement Term and Option Terms, if applicable, the Administrator shall perform the Scope of Work specified in Sections 3.A — 3.G of the RFP, which is incorporated herein by this reference for this intent and purpose. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program Page 1 3. PAYMENT. For and inconsideration of the services to be performed under this Agreement, the City hereby agrees to pay the Administrator as follows: Administrative Program Fee $2,500 August 1, 2008 Fee per Indemnity Claim $785 per claim Quarterly with first payment due January 30, 2009 Fee per Medical Only Claim $125 per claim Quarterly with first payment due January 30, 2009 Quarterly with first payment Fee per Catastrophic Claim $785 per claim due Fee per Indemnity Tail Claim $400 per claim January 30, 2009 October 31, 2008 Fee per Medical Only Tail Claim $60 per claim October 31, 2008 If the City exercises any Option Term, any fees and payment due date shall be in accordance with the above- referenced schedule. 4. INSURANCE REQUIREMENTS The Administrator shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by Administrator, its agents, representatives, volunteers, employees or subconsultants. A. The Administrator's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self - insurance maintained by the City, its officials, employees or agents shall be considered in excess of the Administrator's insurance and shall not contribute to it. Further, Administrator shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: 1. Commercial General Liability • General Aggregate: $1,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal & Advertising Injury: $1,000,000 A -greement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program Page 2 • Per Occurrence: $500,000 • Fire Damage: $50,000 ■ Coverage shall be at least as broad as ISO CG 00 01 10 93 ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $500,000 ■ Coverage for "Any Auto" 3. Errors and Omissions ■ Limit: $500,000 for this project. ■ For all architects, engineers, and /or design companies ■ Claims -made form is acceptable 4. Workers' Compensation ■ Statutory Limits ■ Employer's Liability: $500,000 ■ Waiver of Subrogation required. B. The following shall be applicable to all policies of insurance required herein. Insurance carrier must have an A.M. Best Rating of B +: VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. Errors and Omissions can be on claims -made form. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 5. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. 6. Upon request and without cost to the City, certified copies of all insurance polices and /or certificates of insurance shall be furnished to the City. 7. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program Page 3 8. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Administrator. Administrator shall provide copies of insurance policies required hereunder to the City on or before the effective date of the Transition Period. 5. INDEMNIFICATION. THE ADMINISTRATOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY "), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE ADMINISTRATOR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ADMINISTRATOR'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE ADMINISTRATOR, ITS AGENTS AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND /OR BY THE JOINT OR SOLE NEGLIGENCE OF THE ADMINISTRATOR. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ADMINISTRATOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE ADMINISTRATOR TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND /OR (II) THE ADMINISTRATOR'S JOINT AND /OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program, Page 4 CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ADMINISTRATOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. The indemnity provided hereinabove shall survive the termination and /or expiration of this Agreement. 6. RELEASE By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Administrator assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Administrator's work to be performed hereunder. This release shall apply with respect to Administrator's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 7. GENERAL PROVISIONS. 7.01 Non - Waiver. Failure of the City to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 7.02 Default by Administrator. The CITY shall have the right to declare Administrator in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if Administrator: (a) Defaults in the performance of any obligation imposed upon Administrator hereunder and does not cure the default within fifteen (15) days (unless another A ,greement for Third Party Administrator Services for the City of Bamwn's Workers' Compensation Pro rg am Page 5 period of time is specified herein) after written notice describing the default in reasonable detail has been given to the Administrator; (b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or (c) Makes any assignment without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the City will relieved of its obligations hereunder and the Administrator shall not be any further payment hereunder for services yet to be performed and shall be subject to the performance standards contained in Section 3.G of the RFP. Additionally, should this Agreement be terminated, the City shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the City shall be final and binding upon the Administrator. 7.03 Remedies Cumulative. All rights and remedies of the City under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 7.04 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 7.05 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and the Administrator hereby agree that no claim or dispute between the City and the Administrator arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Administrator consents to be joined in the arbitration proceeding if the Administrator's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 7.06 Assignment. The Administrator shall not assign this Agreement without first obtaining the written consent of the City. 7.07 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Agreement for Third Party Administrator Services for the City of Ba town's Workers' Compensation Program, Page 6 ADMINISTRATOR AS &G Claims Administration, Inc. 5300 Hollister, Suite 410 Houston, TX 77040 4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the City and the Administrator and their respective successors and assigns. 7.08 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 7.09 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 7.10 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any parry hereto on the basis that such party did or did not author the same. 7.11 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 7.12 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 7.13 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 7.14 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 7.15 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program Page 7 7.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 7.17 Authori . The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he /she represents. EXECUTED ON this the day of , 2008. ATTEST: KAYTHIE DARNELL, City Clerk APPROVED AS TO FORM: qL.- --' ?!a ACIO RAMIREZ, SR., C Attorney CITY OF BAYTOWN By: GARRISON C. BRUMBACK, City Manager EXECUTED ON this the !?a day of u --P- , 2008. AS &G CLAIMS Administration, INC. By: Z�9'�Z� '� - PAUL A, President STATE OF TEXAS § COUNTY OF HARRIS § _ Before me, �Q , the undersigned notary public, on this da ry P � y personally appeared Paul Garcia, in his/her capacity as the President of of AS &G Claims Administration, Inc., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program Page 8 executed the same for the purposes aid consideration therein expressed on behalf of the corporation in the capacity stated. SUBSCRIBED O' Notary Public in and for the S e of Texas WANDA SRC)WNING r r RAKwen%Files\Cont =w\TPA - Workers' Compensation Program %WorkersCompensationClean.doc Agreement for Third Partv Administrator Services for the City of Ba own's Workers' Compqnsation Program, Page 9 AGREEMENT FOR THIRD PARTY ADMINISTRATOR SERVICES FOR THE CITY OF BAYTOWN'S WORKERS' COMPENSATION PROGRAM THE STATE OF TEXAS § COUNTY OF HARRIS This Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program (the "Agreement") is made and entered into between the CITY OF BAYTOWN, a home-rule municipality located in Harris and Chambers Counties, Texas, (the "City") and AS&G CLAIMS ADMINISTRATION, INC., a Texas corporation(the"Administrator"). WITNESSETH: 1. TERM. 1.01 Transition Period. The Administrator shall perform those duties as specified in Section 2.01 hereof beginning July 1, 2008, and complete the same by September 30, 2008 (the Transition Period"). 1.02 Agreement Term.The Administrator shall perform those duties as specified in Section 2.02 of hereof beginning October 1, 2008, and complete the same by September 30, 2009 (the"Agreement Term"). 1.03 Option Terms. The City at its sole option may extend the term of this Agreement for three additional one-year terms. Each one-year option (the "Option Term") may be exercised by the City by giving a written notice to the Administrator at least thirty (30) days prior to the expiration of the then current term. 2.SCOPE OF WORK. 2.01 Transition Period. During the Transition period, the Administrator shall perform the Scope of Work Specified in Section 3.H of the Workers' Compensation — Third Party Administrator Request for Proposal No. 0804-04, which is incorporated herein by this reference for this intent and purpose (the"RFP"). 2.02 Agreement Term and Option Terms. During the Agreement Term and Option Terms, if applicable, the Administrator shall perform the Scope of Work specified in Sections 3.A— 3.G of the RFP, which is incorporated herein by this reference for this intent and purpose. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 1 3. PAYMENT. For and inconsideration of the services to be performed under this Agreement, the City hereby agrees to pay the Administrator as follows: Type of Payment Amount of Payment I)uc Date Administrative Program Fee 2,500 August 1,2008 Quarterly with first payment Fee per Indemnity Claim 785 per claim due January 30,2009 Quarterly with first payment Fee per Medical Only Claim l25 per claim due January 30,2009 Quarterly with first payment Fee per Catastrophic Claim 785 per claim due January 30,2009 Fee per Indemnity Tail Claim 400 per claim October 31,2008 Fee per Medical Only Tail Claim 60 per claim October 31,2008 If the City exercises any Option Term, any fees and payment due date shall be in accordance with the above-referenced schedule. 4. INSURANCE REQUIREMENTS. The Administrator shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by Administrator, its agents,representatives,volunteers, employees or subconsultants. A. The Administrator's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of the Administrator's insurance and shall not contribute to it. Further, Administrator shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: 1.Commercial General Liability General Aggregate: $1,000,000 Products&Completed Operations Aggregate: $1,000,000 Personal &Advertising Injury: $1,000,000 Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 2 Per Occurrence: $500,000 Fire Damage: $50,000 Coverage shall be at least as broad as ISO CG 00 01 10 93 No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2.Business Automobile Policy Combined Single Limits: $500,000 Coverage for"Any Auto" 3.Errors and Omissions Limit: $500,000 for this project. For all architects, engineers, and/or design companies IN Claims-made form is acceptable 4.Workers' Compensation Statutory Limits Employer's Liability: $500,000 Waiver of Subrogation required. B. The following shall be applicable to all policies of insurance required herein. 1.Insurance carrier must have an A.M. Best Rating of B+:VIII or better. 2.Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3.Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. 4.Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 5.The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. 6.Upon request and without cost to the City, certified copies of all insurance polices and/or certificates of insurance shall be furnished to the City. 7.Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to the City. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 3 8.All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of Administrator. Administrator shall provide copies of insurance policies required hereunder to the City on or before the effective date of the Transition Period. 5.INDEMNIFICATION. THE ADMINISTRATOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE "CITY"), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY THE ADMINISTRATOR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE ADMINISTRATOR'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR OMISSION BY THE ADMINISTRATOR, ITS AGENTS AND EMPLOYEES, WHEN PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE OF THE ADMINISTRATOR. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ADMINISTRATOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE ADMINISTRATOR TO INDEMNIFY AND PROTECT THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY OTHER PERSON OR ENTITY AND/OR (II) THE ADMINISTRATOR'S JOINT AND/OR SOLE NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 4 CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ADMINISTRATOR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. 6.RELEASE By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. Administrator assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto,their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Administrator's work to be performed hereunder. This release shall apply with respect to Administrator's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 7.GENERAL PROVISIONS. 7.01 Non-Waiver. Failure of the City to declare any default immediately upon occurrence thereof, or delay in taking action in connection therewith, shall not waive such default, but the CITY shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. 7.02 Default by Administrator. The CITY shall have the right to declare Administrator in default and immediately terminate the Agreement without notice, unless otherwise specified herein, or exercise any other rights or remedies available hereunder or as a matter of law if Administrator: a) Defaults in the performance of any obligation imposed upon Administrator hereunder and does not cure the default within fifteen (15) days (unless another Agreement for Third Party Administrator Services for the City of Baytown's Workers'Compensation Program,Page 5 period of time is specified herein) after written notice describing the default in reasonable detail has been given to the Administrator; b) Institutes proceedings, whether voluntary or otherwise, under the provisions of the Federal Bankruptcy Act or any other federal or state law relating to bankruptcy or insolvency; or c) Makes any assignment without the written approval of the CITY. Should the CITY terminate this Agreement for cause, the City will relieved of its obligations hereunder and the Administrator shall not be any further payment hereunder for services yet to be performed and shall be subject to the performance standards contained in Section 3.G of the RFP. Additionally, should this Agreement be terminated, the City shall be entitled to seek all other relief which may be allowed by law. Any and all defaults declared by the City shall be final and binding upon the Administrator. 7.03 Remedies Cumulative. All rights and remedies of the City under this Agreement shall be cumulative and none shall exclude any other rights or remedies allowed by law. 7.04 Amendments. This Agreement may not be altered, changed or amended, except by an instrument in writing, signed by both parties hereto. 7.05 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and the Administrator hereby agree that no claim or dispute between the City and the Administrator arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Administrator consents to be joined in the arbitration proceeding if the Administrator's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. 7.06 Assignment. The Administrator shall not assign this Agreement without first obtaining the written consent of the City. 7.07 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 6 ADMINISTRATOR AS&G Claims Administration, Inc. 5300 Hollister, Suite 410 Houston, TX 77040 4.9 Binding Effect. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the City and the Administrator and their respective successors and assigns. 7.08 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal, state and local laws and regulations, and all judicial determinations relative thereto. 7.09 Choice of Law and Venue. This Agreement is declared to be a Texas contract, and all of the terms thereof shall be construed according to the laws of the State of Texas. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 7.10 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 7.11 Complete Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. 7.12 Duplicate Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 7.13 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 7.14 Gender and Number. The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other. 7.15 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Agreement for Third Party Administrator Services for the City of Baytown's Workers' Compensation Program,Page 7 7.16 Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 7.17 Authority. The officers executing this Agreement on behalf of each party hereby confirm that such officers have full authority to execute this Agreement and to bind the party he/she represents. EXECUTED ON this the (Ldy of 2008. CIT F YTO By: GARRISON C. BRUMB , City Manager A ST: sItv r0k74 KAY DARNELL,City Cl 71. APPROVED AS TO FORM: ACIO RAMIREZ, SR., C Attorney EXECUTED ON this the-2,3 day of yr -e 2008. AS&G CLAIMS Administration, INC. By: PAUL A,President STATE OF TEXAS COUNTY OF HARRIS Before me, p, ,(, the undersigned notary public, on this day personally appeared Paul Garcia, in his/her capacity as the President of of AS&G Claims Administration, Inc., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he Agreement for Third Party Administrator Services for the City of Baytown's Workers'Compensation Programs Page 8 executed the same for the purposes and consideration therein expressed on behalf of the corporation in the capacity stated. SUBSCRIBED AND SWORN before me this 23 day of 'i___4. 2008. Notary Public in and for the S .4 of Texasfrn WANDA BROWNING f • Notary PIING State of Texas R:\Karen\Files\Contracts\TPA-Workers'Compensation Progazn\Works sCompensationClean_doc Agreement for Third Party Administrator Services for the City of Baytown's Workers'Compensation Programs Page 9