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HomeMy WebLinkAbout282969 GREATWEST - CONTRACT - RFP - P985 BENEFITS (2)CONSULTING AGREEMENT THIS CONSULTING AGREEEMENT (this "Agreement") is made on this 20th day of April , 2005, by and between Gallagher Benefit Services, Inc., a Delaware corporation ("GBS"), and The City of Fort Collins, Colorado a Municipal Corporation (the "CiV'). WITNESSETH: WHEREAS, the City desires to enter into a consulting relationship with GBS upon the terms and conditions set forth in this Agreement, and GBS wishes to accept such a consulting relationship. NOW, THEREFORE, in consideration of and in reliance upon the foregoing and the covenants, obligations and agreements contained herein, the City and GBS hereby agree as follows: I. Engagement The City hereby engages GBS as a consultant to the City as provided herein, and GBS hereby accepts such engagement. During the time that GBS is performing services for the City pursuant to this Agreement, and for all purposes hereunder, GBS' status shall be that of an independent contractor of the City. 2. Term The term of GBS' engagement under this Agreement (the "Consulting Period") shall commence within five (5) days following execution of this agreement (the "Effective Date") and shall remain in full force and effect until July 31, 2005. 3. Services GBS shall provide consulting services to the City to analyze the results of RFP# P985 for Medical Benefits as described in Exhibit "A" attached hereto. 4. Compensation Compensation for the Consulting Services, and the manner and form in which such compensation may be provided, shall be as described in Exhibit `B" attached hereto. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay GBS an amount for all such fees and costs that shall not exceed Twenty -Five Thousand Dollars ($25,000). GBS and certain of its insurance carrier markets from time to time enter into arrangements providing for additional compensation to be paid to GBS by such carrier generally with respect to the total volume of premium or insurance coverages written through GBS with that carrier (i.e., all insurance policies with that carrier where GBS is the broker). It is not clear at this time what these fees are, but the City may contact GBS for more information regarding these arrangements. In addition to the fees and/or commissions retained by GBS, GBS affiliates, such as excess and surplus lines brokers, wholesalers, reInsurance intermediaries, and similar parties, may earn and retain commissions and/or fees in the course of providing insurance products. Page 1 of 11 E. Effect of Termination 1. Except as provided in paragraph (2) of this section, upon termination of the agreement of which this Provision is a part, for any reason, Business Associate shall return or destroy all Protected Health Information received from the Plan Sponsor, or created or received by Business Associate on behalf of the Plan Sponsor. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information. 2. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to the Plan Sponsor notification of the conditions that make return or destruction infeasible. Upon the Plan Sponsor's agreement that return or destruction of Protected Health Information is infeasible, Business Associate shall extend the protections of this Provision to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information. F. Miscellaneous 1. The Parties agree to take such action as is necessary to amend this Provision from time to time as is necessary for Plan Sponsor to comply with the requirements of the Privacy Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. 2. The respective rights and obligations of Business Associate under Section E of this Provision shall survive the termination of the agreement of which this Provision is a part. 3. Any ambiguity in this Provision shall be resolved to permit the Plan Sponsor to comply with HIPAA. G. Definitions 1. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR § 164.501, limited to the information created or received by Business Associate from or on behalf of the Plan Sponsor. 2. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his designee. H. Security Provisions 1. Business Associate agrees that it will implement policies and procedures to ensure that its creation, receipt, maintenance, or transmission of electronic Protected Health Information ("ePHI") on behalf of the Plan Sponsor complies with the applicable administrative, physical, and technical safeguards required to protect the confidentiality and integrity of ePHI under the Security Standards 45 CFR Part 164. 05-2004 Page 10 of 11 2. Business Associate agrees that it will ensure that agents or subcontractors agree to implement the applicable administrative, physical, and technical safeguards required to protect the confidentiality and integrity of ePHI under the Security Standards 45 CFR Part 164. 3. Business Associate agrees that it will report security violations to the Plan Sponsor. 05-2004 Page 11 of 11 S. Performance and Scope (a) Reliance. In the performance of its duties hereunder, GBS may rely upon, and shall have no obligation to independently verify the accuracy, completeness, or authenticity of, any written instructions or information provided to GBS by the City or its designated representatives and reasonably believed by GBS to be genuine and authorized by the City. (b) No Practice of Law. Notwithstanding any provision of this Agreement to the contrary, GBS shall not be obligated to perform, and the City shall not request performance of, any services which may constitute unauthorized practice of law. The City shall be solely responsible for obtaining any legal advice, review or opinion as may be necessary to ensure that its own conduct and operations, including the engagement of GBS under the scope and terms as provided herein, conform in all respects with applicable State and Federal laws and regulations (including ERISA, the Internal Revenue Code, State and securities laws and implementing regulations) and, to the extent that the City has foreign operations, any applicable foreign laws and regulations. (c) Subcontractors. GBS may cause another person or entity, as a subcontractor of GBS, to provide some or all of the services required to be performed by GBS hereunder. 6. Termination of Engagement (a) Termination Rights. The engagement of GBS under this Agreement may be terminated during the Consulting Period by either party, at any time for any reason, by providing written notice to the other party. Such notice shall be delivered at least thirty (30) days in advance of the effective date of termination, unless otherwise agreed in writing by the parties. Such notice shall be effective when mailed, postage prepaid, and sent to the addresses listed in Section 11. (b) Termination for Default. Each and every term and condition hereof shall be deemed a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this Agreement, such party may be declared in default thereof. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (1) terminate the Agreement and seek damages; (2) treat the Agreement as continuing and require specific performance; or (3) avail itself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. (c) Early Termination by City other than for Default. In the event the City terminates GBS' engagement hereunder for any reason other than for default, GBS shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of GBS's obligations under this Agreement. Such payment shall be GBS's sole right and remedy for such termination. 7. Confidentiality (a) City Information. GBS recognizes that certain confidential information may be furnished by the City to GBS in connection with its services pursuant to this Agreement ("Confidential Information"). GBS agrees that it will disclose Confidential Information only to those who, in GBS' reasonable determination, have a need to know such information. Confidential Information shall not include information that (i) is in the possession of GBS prior to its receipt of such information from the 05-2004 Page 2 of 11 City, (ii) is or becomes publicly available other than as a result of a breach of this Agreement by GBS, or (iii) is or can be independently acquired or developed by GBS without violating any of its obligations under this Agreement. Notwithstanding the foregoing, disclosure by GBS of any Confidential Information pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, judicial or administrative agency or by a legislative body or committee shall not constitute a violation of this Agreement. (b) GBS Proprietary Material. The City agrees that GBS is the sole owner of the following material and that the City shall not use or disclose such material following termination of this Agreement except to the extent (i) specific written consent to such use or disclosure is obtained from GBS; (ii) disclosure is required by the provisions of the Colorado Open Records Act; or (iii) required pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, judicial or administrative agency or by a legislative body or committee: (1) Proprietary computer programs; (2) Proprietary procedures and methods of administration; and (3) Underwriting and client files and/or reports developed by GBS. (c) HIPAA Privacy and Security. Notwithstanding Sections 7(a) and 7(b) above, the HIPAA Health Information Privacy and Security Provisions, attached hereto as Exhibit C, shall be binding upon the parties. 8. Non -Solicitation As a consideration for the Consulting Services, the City covenants and agrees that, during the Consulting Period and for the 12-month period following the expiration or termination of the Consulting Period, it will not, nor will it permit any of its affiliates, third party recruiters, or other similar persons or entities representing or advising the City to, directly or indirectly solicit or encourage any employee of GBS or any of its affiliates to leave the employment of GBS or any of its affiliates. 9. Indemnification GBS shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by GBS on behalf of the City, including but not limited to insurance -related plans and reports and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies. GBS shall indemnify, save and hold harmless the City, its officers and employees in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City, except for consequential and/or indirect damages; and for the City's costs and reasonable attorneys' fees, arising directly out of GBS' negligent performance of any of the services furnished under this Agreement. GBS shall maintain commercial general liability insurance in the amount of $500,000 combined single limits, and errors and omissions insurance in the amount of at least $5,000,000. 10. Independent Contractor The parties agree that GBS is an independent contractor of the City and will not be deemed an employee of the City for any purpose whatsoever. Without limiting the foregoing, all income taxes arising from or in connection with any compensation paid by the City to GBS for the services provided under this Agreement shall be borne by GBS. 05-2004 Page 3 of 11 IL Notices Any notices, requests and other communications pursuant to this Agreement shall be in writing and shall be deemed to have been duly given, if delivered in person or by courier, telegraphed, or by facsimile transmission (provided that the sender received electronic confirmation of receipt by recipient) or sent by express, registered or certified mail, postage prepaid, addressed as follows: If to the City: The City of Fort Collins, Colorado PO Box 580 Fort Collins, CO 80522 Attention: James B. O'Neill II, CPPO, FNIGP Director of Purchasing (Fax:970-221-6707) If to GBS: Gallagher Benefit Services, Inc. 6399 S. Fiddler's Green Circle, Suite 200 Greenwood Village, CO 80111 Attention: Paulette Jerpe, CLU (Fax:303-220-7010) Either party may, by written notice to the other, change the address to which notices to such party are to be delivered or mailed. 12. Miscellaneous (a) Survival and Succession. Obligations pursuant to Sections 4, 5, 8, 9, 10, the post - termination obligations of Section 7, and the requirements of Section 12 hereof shall survive the termination of this Agreement. This Agreement, in its entirety, shall inure to the benefit of and be binding on the successors and assigns of the City and GBS. (b) Assignment. Neither of the parties hereto shall assign or transfer its interest in this Agreement or any portion thereof without the prior written consent of the other party. Notwithstanding the foregoing, (i) the City may assign or transfer its rights and obligations under this Agreement to a subsidiary or entity controlling, controlled by or under common control with the City or to any entity that acquires all or substantially all of the assets of the City or more than 50% of the current outstanding voting stock of the City, and (ii) GBS shall be entitled to assign the right to receive any compensation or rights hereunder to a third party without the prior written consent of the City, subject to restrictions of applicable law. (c) Severability. The various provisions and subprovisions of this Agreement are severable and if any provision or subprovision or part thereof is held to be unenforceable by any court of competent jurisdiction, then such enforceability shall not affect the validity or enforceability of the remaining provisions or subprovisions or parts thereof in this Agreement. (d) Waiver of Nonperformance. No waiver of any default in performance on the part of GBS or like waiver by the City, or any breach or a series of breaches of any of the terms, covenants or conditions of this Agreement shall constitute a waiver of a subsequent breach or a waiver of said terms, covenants or conditions. 05-2004 Page 4 of 11 (e) Remedies Not Exclusive. No remedy conferred hereunder is intended to be exclusive of any other remedy. Each and every remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing, whether at law or in equity. (f) Entire Agreement; Amendment. This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether oral or written, between the parties regarding the subject matter hereof. This Agreement may be modified or amended only by a written instrument executed by both parties. (g) Governing Law; Rule of Construction. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Colorado, without giving effect to the choice of law principles thereof or any canon, custom or rule of law requiring construction against the drafter. (h) Headings. Headings herein are for convenience of reference only and shall not be considered in any interpretation of this Agreement. 0) Countemarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Consulting Agreement to be duly executed on the date first written above. City of Fort Collins, Colorado By: Print e: - J G C S 6 0KJ4rz-C- JL Title: PX-Ozf-, Date: q t z e -5 05-2004 Page 5 of 11 EXHIBIT "A" SCOPE OF SERVICES The scope of services will consist of the following: ➢ Conduct any necessary vendor interaction ➢ Assess and summarize, in writing, proposals relative to the key parameters the City will use to determine finalist carriers, including: Access to providers Member and customer service • Care management • Wellness and disease management • Program management • Cost/financial effectiveness ➢ Provide pros and cons for each respondent within the categories listed above ➢ Quote an additional cost associated with attendance at meetings ➢ Quote an additional cost to provide vendor negotiated fee template and conduct network discount analysis. Project Team Paulette Jerpe will serve as the Primary Consultant. She will direct the internal staff in performing the scope of services and be available to provide insight into methodology for the analysis and present results as requested by the City. Don Heilman will serve as the Managing Partner. He will provide strategic oversight to the team. He will be available for meetings as deemed appropriate by the City where higher level strategic insight is valuable. Timeline GBS will deliver the analysis written report no later than May 13, 2005. os-2004 Page 6 of 11 EXHIBIT " B" COMPENSATION To conduct all necessary vendor interactions, analyze the RFP responses, and provide a written report we are proposing a fee of $15,000. GBS notes that the RFP did not include a request for the vendors to provide an overview of their negotiated fees in the Fort Collins marketplace. GBS will provide a template to the City that can be released to the vendors as an amendment to the RFP. Due to the additional analysis that is required to determine the effectiveness of the network discounts, GBS will require an additional fee of $3,500 to provide the template and conduct the network discount analysis. GBS will release this template immediately upon notification that GBS will be retained for this project in order that the responding vendors can include this information with their responses by the deadline. To attend meetings as directed (e.g., Benefits Committee, finalist presentations, management presentations, City Council, etc.) the fee will be $1,250/half day. This fee is inclusive of travel time and expenses. 05-2004 Page 7 of 11 EXHIBIT "C" HIPAA HEALTH INFORMATION PRIVACY & SECURITY PROVISIONS WHEREAS, the City of Fort Collins, Colorado ("Plan Sponsor") and Gallagher Benefit Services, Inc. ("Business Associate") wish to enter into this Provision regarding the privacy and security of health information that the Business Associate may receive in conducting its services pursuant to the Consulting Agreement. This Provision is intended to provide privacy protection for any Protected Health Information and security for any electronic Protected Health Information provided to the Business Associate pursuant to the provisions of the Health Insurance Portability and Accountability Act ("HIPAA"). NOW, THEREFORE, the Plan Sponsor and Business Associate agree as follows: A. Obligations and Activities of the Business Associate 1. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required the agreement of which this Provision is a part or as required by law. 2. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Provision. 3. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Provision. 4. Business Associate agrees to report to the Plan Sponsor any use or disclosure of the Protected Health Information not provided for by this Provision of which it becomes aware. 5. Business Associate agrees to ensure that any agent, including a subcontractor and assignee, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of the Plan Sponsor agrees to the same restrictions and conditions that apply through this Provision to Business Associate with respect to such information. 6. Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, the Plan Sponsor available to the Plan Sponsor, or to the Secretary, in a time and manner or designated by the Secretary, for purposes of the Secretary determining the Plan Sponsor's compliance with the Privacy Rule. 7. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for the Plan Sponsor to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528. os-2004 Page 8 of 11 8. Business Associate agrees to provide to the Plan Sponsor or an Individual, in a reasonable time and manner, information collected in accordance with Section A.7. of this Provision, to permit Plan Sponsor to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528. B. Permitted Uses and Disclosures by Business Associate 1. Except as otherwise limited in this Provision, Business Associate may use or disclose Protected Health Information on behalf of, or to provide services to, the Plan Sponsor for the following purposes, if such use or disclosure of Protected Health Information would not violate the Privacy Rule if done by the Plan Sponsor or the minimum necessary policies and procedures of the Plan Sponsor: provide the services set forth in Exhibit A, Scope of Services, to the Consulting Agreement. 2. Except as otherwise limited in this Provision, Business Associate may use Protected Health Information to provide data aggregation services to the Plan Sponsor as permitted by 42 CFR § 164.504(e)(2)(i)(B). 3. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with § 164.502(j)(1). C. Obligations of Plan Sponsor 1. Plan Sponsor shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that the Plan Sponsor has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information. 2. Plan Sponsor shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Plan Sponsor. D. Termination 1. In addition to the termination provisions set forth in the Consulting Agreement of which this Exhibit is a part, the following termination provisions are applicable: a. Upon the Plan Sponsor's knowledge of a material breach by Business Associate of this Provision, the Plan Sponsor shall either: i. Provide an opportunity for Business Associate to cure the breach or end the violation and terminate the agreement of which this Provision is a part if Business Associate does not cure the breach or end the violation within the time specified by Plan Sponsor; or ii. Immediately terminate the agreement of which this Provision is a part if Business Associate has breached a material term of this Provision and cure is not possible; or iii. If neither termination nor cure are feasible, the Plan Sponsor shall report the violation to the Secretary. 05-2004 Page 9 of 11