HomeMy WebLinkAbout468936 HUB INTERNATIONAL INSURANCE SERVICES INC - CONTRACT - RFP - 8283 BENEFITS CONSULTANTProfessional Services Agreement- 8283 Benefits Consultant Page 1 of 20
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and HUB International Insurance Services Inc., a California Corporation,
hereinafter referred to as "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by and
between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance with the
Scope of Services attached hereto as Exhibit "A", consisting of four (4) pages, and Exhibit
“B”- Eligibility by Classification, consisting of one (1) page, both incorporated herein by this
reference.
2. Contract Period. This Agreement shall commence July 1, 2016 and shall continue in full
force and effect until June 30, 2018, unless sooner terminated as herein provided. In
addition, at the option of the City, the Agreement may be extended for additional one year
periods not to exceed three (3) additional one year periods. Written notice of renewal shall
be provided to the Professional and mailed no later than thirty (30) days prior to contract
end.
3. Notices by City. All notices provided under this Agreement shall be effective when mailed,
postage prepaid and sent to the following addresses:
Professional: City: Copy to:
HUB International Insurance
Services Inc.
Attn: Jim Sampson
4065 St. Cloud Dr. Ste. 201
Loveland, CO 80538
City of Fort Collins
Attn: Lynn Sanchez
PO Box 580
Fort Collins, CO 80522
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to
designs, plans, reports, specifications, and drawings and shall, without additional
compensation, promptly remedy and correct any errors, omissions, or other deficiencies.
The Professional 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; and for the City's costs and reasonable attorney’s fees,
arising directly or indirectly out of the Professional's negligent performance of any of the
services furnished under this Agreement. The Professional shall maintain insurance in
accordance with Exhibit “C”, consisting of one (1) page, attached hereto and incorporated
herein.
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5. Compensation In consideration of the services to be performed pursuant to this
Agreement, the City agrees to pay the Professional in accordance with the following
schedule:
Year 1 $70,000/Annually $5,833.33/Month
Year 2 $70,000/Annually $5,833.33/Month
Year 3* $71,400/Annually $5,950.00/Month
Year 4* $72,828/Annually $6,069.00/Month
Year 5* $74,285/Annually $6,190.38/Month
* Subject to the City’s election to renew the Agreement.
The City shall pay the Professional in monthly payment installments proportionate to the
total annual cost. Upon payment, all reports, specifications and other services rendered by
the Professional shall become the sole property of the City.
6. City Representative. The City will designate, prior to commencement of work, its project
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the City
Representative.
7. Independent Contractor. The services to be performed by Professional are those of an
independent contractor and not of an employee of the City of Fort Collins. The City shall
not be responsible for withholding any portion of Professional's compensation hereunder
for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other
purpose.
8. Subcontractors. Professional may not subcontract any of the Work set forth in the Exhibit
A, Scope of Services, without the prior written consent of the City, which shall not be
unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of
the City), then the following provisions shall apply: (a) the subcontractor must be a
reputable, qualified firm with an established record of successful performance in its
respective trade performing identical or substantially similar work, (b) the subcontractor will
be required to comply with all applicable terms of this Agreement, (c) the subcontract will
not create any contractual relationship between any such subcontractor and the City, nor
will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work
of the subcontractor will be subject to inspection by the City to the same extent as the
work of the Professional.
9. Personal Services. It is understood that the City enters into the Agreement based on the
special abilities of the Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under the Agreement without the prior
written consent of the City.
10. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications,
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reports, and incidental work or materials furnished hereunder shall not in any way relieve
the Professional of responsibility for the quality or technical accuracy of the work. The
City's approval or acceptance of, or payment for, any of the services shall not be
construed to operate as a waiver of any rights or benefits provided to the City under this
Agreement.
11. Default. Each and every term and condition hereof shall be deemed to be 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.
12. Remedies. 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 (a) terminate the
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance; or (c) avail himself 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.
13. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors,
heirs, personal representatives, successors and assigns of said parties.
14. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision
of this Agreement.
15. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., Professional represents and agrees that:
a. As of the date of this Agreement:
1. Professional does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement; and
2. Professional will participate in either the e-Verify program created in Public Law
208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of
Homeland Security (the “e-Verify Program”) or the Department Program (the
“Department Program”), an employment verification program established pursuant
to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of
all newly hired employees to perform work under this Agreement.
b. Professional shall not knowingly employ or contract with an illegal alien to perform
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work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this
Agreement.
c. Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If Professional obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, Professional shall:
1. Notify such subcontractor and the City within three days that Professional has
actual knowledge that the subcontractor is employing or contracting with an illegal
alien; and
2. Terminate the subcontract with the subcontractor if within three days of receiving
the notice required pursuant to this section the subcontractor does not cease
employing or contracting with the illegal alien; except that Professional shall not
terminate the contract with the subcontractor if during such three days the
subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
e. Professional shall comply with any reasonable request by the Colorado Department of
Labor and Employment (the “Department”) made in the course of an investigation that
the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If Professional violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If
this Agreement is so terminated, Professional shall be liable for actual and
consequential damages to the City arising out of Professional’s violation of Subsection
8-17.5-102, C.R.S.
g. The City will notify the Office of the Secretary of State if Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
16. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple
fiscal year debt or financial obligation of the City, it shall be subject to annual appropriation
by City Council as required in Article V, Section 8(b) of the City Charter, City Code Section
8-186, and Article X, Section 20 of the Colorado Constitution. The City shall have no
obligation to continue this Agreement in any fiscal year for which no such supporting
appropriation has been made.
17. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "D" - Confidentiality,
consisting of one (1) page, and Exhibit “E“ - HIPAA Business Associate Agreement,
consisting of eight (8) pages, both attached hereto and incorporated herein by reference.
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THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Sr. Assistant City Attorney
HUB INTERNATIONAL INSURANCE SERVICES
INC.
By:
Printed:
Title:
PRESIDENT OR VICE PRESIDENT
Date:
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Scott Browning
Senior Vice President
7/13/2016
7/14/2016
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EXHIBIT A
SCOPE OF SERVICES
A. Introduction
The City of Fort Collins (City) is partnering with the Professional to provide benefit consulting
services for employee benefit related programs, to assist in the compliance of Federal and State
Laws, and to assist the City in benefit related request for proposal processes.
B. Project Scope
The Professional will be performing a full range of services related to the design,
implementation, maintenance, communication, and improvement of the City’s employee benefit
plans. Professional’s Tasks pursuant to the Scope of Services are outlined in section D of this
exhibit. The following include, but are not limited to, the Project Scope:
1. In partnership with the City, establish and execute a short and long-term strategy that
supports the City’s overall total rewards strategy, places emphasis on cost-effective and
market competitive benefit offerings and goals, which further support the City’s attraction
and retention goals of its employees.
2. Achieve the most cost-effective, yet service-focused access to insurance carriers and
benefits networks.
3. Represent the City in negotiations, as needed, with providers on a wide range of issues
including those related to fees, benefit levels, plan design, and special terms and conditions.
4. Advise the City to ensure compliance with laws and regulations related to employee
benefits.
5. High-level customer service and day-to-day support, as needed, in claim administration,
escalation and re-adjudication of claims with the benefit administrator.
6. Review contracts with vendors to insure accuracy and comprehensiveness of coverage;
provide guidance in contract interpretation as needed.
7. Assist the City with the implementation and communication of new programs/benefits or
changes to existing programs/benefits.
8. Provide general guidance on trends in benefits offered and eligibility requirements.
9. Determine and recommend the most economical funding methods for the benefit programs.
10. Provide modeling in order to establish annual premium rates, including COBRA and retirees.
11. Provide annual reports outlining the contracted programs and their status, and a market
analysis report describing the market conditions for each benefit. This report will outline
suggestions and recommendations for the City’s strategy and will include the following
items:
a) Complete list of policies, carriers, renewal dates, and rates.
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b) Evaluation of overall insurance programs compared to similar employers.
c) Forecast of market conditions and forecasted impact to policy renewals.
d) Income and expense for the prior year and a projection for the forthcoming year(s)
including projected adequate reserve plan levels.
e) List of contract modifications and recommendations for each benefit.
f) Account history, by benefit, of claims and premiums.
g) Summary of activity on open, ongoing claims.
h) Review of future goals and long-term strategy.
12. Provide a high level of customer service to our organization to include evaluation of claims
data, submission of executive reports and reconciliation of accounts.
13. Provide monthly and quarterly management reports for all benefit products.
14. Assist with bid specifications and collaborate with the City in the development of solicitations
for purchase.
15. Assist in revising and maintaining Plan Documents, including the preparation of
amendments as needed; review for accuracy and appropriateness.
16. Provide innovative approaches to benefit challenges facing the City and make
recommendations for benefit plan design changes.
17. Provide answers or guidance to any general or technical benefit questions.
18. Assist in the appropriate preparation of any government filing or compliance review; i.e.
ACA, Medicare and other required quarterly or annual filings.
C. City Plan Information
1. Eligible Employees
The City of Fort Collins (City) has approximately 1,470 employees with benefits. Benefits
are provided for all full and part-time unclassified management, classified, contractual, and
full time hourly employees in addition to grandfathered retirees. See Exhibit B for Eligibility
by Classification information.
2. Plan Year and Open Enrollment
Open enrollment is traditionally held in October/November with an effective date of January
1 to coincide with the calendar year and the City’s fiscal year.
3. Current Benefit Plans
The benefit plans for which services are requested are listed below. Plans indicated by an
asterisk (*) are incorporated into a Section 125 flexible benefits plan. In addition, the
medical plans are protected from claims over $225,000 through Specific Stop Loss
insurance.
a) Health Plans* (Self-Funded, Employee/Employer Shared Cost):
1 PPO Plan: Administered by UMR
Contract will expire at the end of 2016
UMR Covered Services: Medical, Rx, Transplant
Stop Loss: Administered by IHC
b) Dental Plans* (Self-Funded, Employee/Employer Shared Cost):
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1 Option: Comprehensive. Administered by Delta Dental
Contract expires 12/31/2019
c) Vision Plan (Fully insured, Employee Paid):
1 Option. Administered by Vision Service Plan (VSP)
Contract expires 12/31/2019
d) Term Life Insurance:
Mandatory 1x salary or $10,000, Employer Paid
Basic Life & AD&D: Administered by ReliaStar
Contract expires 12/31/2019
e) Supplemental Life and AD&D :
Employee 1, 2, or 3x salary
Spousal Coverage $25,000 - $100,000
Child(ren) Coverage $5,000 or $10,000
Administered by ReliaStar
Contract expires 12/31/2019
f) Voluntary Life and AD&D:
Voluntary, $10,000-$300,000, in $10,000 units
Voluntary Family Coverage Available
Administered by Anthem Life
New RFP to be administered in 2016 or early 2017
g) Short-term Disability Advise-to-Pay, Employer Paid, Administered by ReliaStar)
Contract expires 12/31/2019
h) Long-term Disability (Fully Insured, Employer Paid, Administered by ReliaStar)
Contract expires 12/31/2019
i) Flexible Spending Accounts*: Health Care ($2,550 limit) and Dependent Care; ($5,000
limit); employee paid (Administered by ASIFlex)
Contract expires 12/31/2018
j) Employee Assistance Program (Employer Paid, Administered by ComPsych)
Contract expires 12/31/2019
k) Family Medical Leave Act (Administered by FMLASource)
Contract expires 12/31/2019
4. Wellness Program
The City has a comprehensive wellness program which includes educational seminars,
exercise programs, healthy lifestyle incentive programs, health screenings, health
assessments, and wellness coaching. Health Risk Assessments (HRA’s) are conducted
through Marathon Health.
5. On-site Health and Wellness Center
The City currently contracts with Marathon Health to provide on-site health and wellness
services to employees and family members covered by the City’s health plan. Services
include primary care, acute care, health coaching, and lab services.
D. Professional’s Tasks
The City and Professional will negotiate and establish performance metrics within ninety (90)
days of the Agreement commencement date.
1. Strategic Benefit Program Services
− Benefit design analysis
− Benchmarking using in-house resources
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− Underwriting services
− Evaluation of current On-Site Clinic model and performance
− Financial reporting and analysis
− Monthly benefit plans reporting
− Funding consultation analysis
− Benefit committee meeting attendance
− Comprehensive plan marketing
− Vendor meeting attendance
− Annual stewardship report
− Multi-year strategic planning
− Cost containment solutions
− Estimated premium rate modeling
2. Compliance
− Access to Compliance Officer
− Summary Plan Description preparation/review
− Wrap document preparation
− Provide templates for Notices, FMLA, COBRA, HIPAA, Section 125, ACA
− Compliance bulletins and webinars
− Federal legislation updates
− HUB HR
− ACA compliance guidance
3. Plan Administration
− Open Enrollment support and meetings
− Vendor issue resolution
− Billing issue resolution
− Eligibility/Contract dispute resolution
− COBRA/FSA vendor management
− RFP support and guidance
4. Communication
− Health awareness newsletter
− Benefits guide, post card and flyer preparation, printing and distribution (excludes mailing
cost
to members’ home)
− Standard Total Compensation Statements (includes 13 standard compensation/benefit
categories with electronic delivery)
5. Wellness
− Plan design consultation
− Rewards and incentive development
6. HR Support
− ThinkHR
7. Strategic Cost Management Programs
− Analytical Engine (HUBLens) with full integration of On-Site Clinic, worker’s compensation,
and medical plan data
− Pharmacy marketing and analysis
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EXHIBIT B
ELIGIBILITY BY CLASSIFICATION
Classified and Unclassified Management:
Medical
Dental
Vision
Flexible Spending Accounts
Life Insurance
Short Term Disability
Long Term Disability
Employee Assistance Program
Contractual:
Medical
Dental
Vision
Flexible Spending Accounts
Life Insurance
Employee Assistance Program
Hourly: Employee must average a minimum of 30 hours/week for a year
Medical Only
Retirees (pre- and post- 65): closed plans
Medical – 5 enrolled
Dental – 15 enrolled
Vision – 12 enrolled
Covered Entities
City of Fort Collins – (includes Police and Utility Services)
Poudre Fire Authority (PFA)
Poudre River Public Library District
Metropolitan Planning Organization
Downtown Development Authority (DDA)
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EXHIBIT C
INSURANCE REQUIREMENTS
1. The Professional will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing work
under this bid, the Professional shall furnish the City with certificates of insurance showing
the type, amount, class of operations covered, effective dates and date of expiration of
policies, and containing substantially the following statement:
“The insurance evidenced by this Certificate will not reduce coverage or limits and
will not be cancelled, except after thirty (30) days written notice has been received
by the City of Fort Collins.”
In case of the breach of any provision of the Insurance Requirements, the City, at its
option, may take out and maintain, at the expense of the Professional, such insurance
as the City may deem proper and may deduct the cost of such insurance from any
monies which may be due or become due the Professional under this Agreement. The
City, its officers, agents and employees shall be named as additional insureds on
the Professional's general liability and automobile liability insurance policies for
any claims arising out of work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Professional shall maintain
during the life of this Agreement for all of the Professional's employees engaged in
work performed under this agreement:
1. Workers' Compensation insurance with statutory limits as required by
Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Professional shall maintain during the
life of this Agreement such commercial general liability and automobile liability
insurance as will provide coverage for damage claims of personal injury, including
accidental death, as well as for claims for property damage, which may arise
directly or indirectly from the performance of work under this Agreement.
Coverage for property damage shall be on a "broad form" basis. The amount of
insurance for Commercial General shall not be less than $1,000,000 combined
single limits for bodily injury and property damage and $300,000 for automobile
liability.
In the event any work is performed by a subcontractor, the Professional shall be
responsible for any liability directly or indirectly arising out of the work performed
under this Agreement by a subcontractor, which liability is not covered by the
subcontractor's insurance.
C. Professional Liability. The Professional shall maintain errors and omissions
insurance in the amount of $1,000,000.
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EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to
this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as “information”) that are the property of and/or
relate to the City or its employees, customers or suppliers, which access is related to the
performance of services that the Professional has agreed to perform, the Professional hereby
acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Professional
agrees to treat as confidential (a) all information that is owned by the City, or that relates to the
business of the City, or that is used by the City in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the
City). The Professional shall not disclose any such information to any person not having a
legitimate need-to-know for purposes authorized by the City. Further, the Professional shall not
use such information to obtain any economic or other benefit for itself, or any third party, except
as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Professional understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is required.
In the event of any disclosure under (b) above, the Professional shall furnish a copy of this
Agreement to anyone to whom it is required to make such disclosure and shall promptly advise
the City in writing of each such disclosure.
In the event that the Professional ceases to perform services for the City, or the City so requests
for any reason, the Professional shall promptly return to the City any and all information
described hereinabove, including all copies, notes and/or summaries (handwritten or
mechanically produced) thereof, in its possession or control or as to which it otherwise has
access.
The Professional understands and agrees that the City’s remedies at law for a breach of the
Professional’s obligations under this Confidentiality Agreement may be inadequate and that the
City shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
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EXHIBIT E
HIPAA BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") is entered into on this date of _______
(the "Effective Date"), by and between City of Fort Collins ("Covered Entity") and HUB
International Insurance Services Inc. ("Business Associate").
RECITALS:
WHEREAS, Covered Entity and Business Associate mutually desire to outline their
individual responsibilities with respect to the use and/or disclosure of Protected Health
Information ("PHI") as mandated by the Privacy Rule promulgated under the Administrative
Simplifications subtitle of the Health Insurance Portability and Accountability Act of 1996
("HIPAA") including all pertinent regulations issued by the U.S. Department of Health and
Human Services as outlined in 45 C.F.R. Parts 160, 162 and 164; (“HIPAA Privacy Rules and/or
Security Standards”)and
WHEREAS, Covered Entity and Business Associate understand and agree that the HIPAA
Privacy Rules and Security Standards requires the Covered Entity and Business Associate
enter into a Business Associate Agreement which shall govern the use and/or disclosure of PHI
and the security of PHI and ePHI.
NOW, THEREFORE, the parties hereto agree as follows:
Article I Definitions. When used in this Agreement and capitalized, the following
terms have the following meanings:
Section 1.01 "Breach" shall mean the unauthorized acquisition, access, use, or
disclosure of PHI which comprises the security or privacy of such information. However,
the term 'breach' shall not include (1) any unintentional acquisition, access, or use of PHI
by an employee or individual acting under the authority of a covered entity or business
associate if such acquisition, access, or use was made in good faith and within the
course and scope of the employment or other professional relationship of such
employee or individual, respectively, with the covered entity or business associate; and
such information is not further acquired, accessed, used, or disclosed by any person; or
(2) any inadvertent disclosure from an individual who is otherwise authorized to access
protected health information at a facility operated by a covered entity or business
associate to another similarly situated individual at same facility; and (3) any such
information received as a result of such disclosure is not further acquired, accessed,
used, or disclosed without authorization by any person.
Section 1.02 "Electronic Protected Health Information" or “ePHI” shall mean
Protected Health Information transmitted by electronic media or maintained in electronic
media.
Section 1.03 "Individual" shall have the same meaning as the term "Individual"
in 45 C.F.R. §164.501 and shall include a person who qualifies as a personal
representative in accordance with 45 C.F.R. §164.502(g).
Section 1.04 "Privacy Rule" shall mean the Standards for Privacy of Individual
Identifiable Health Information as set forth at 45 C.F.R. Parts 160 and 164 Subparts A
and E.
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Section 1.05 "Protected Health Information" or "PHI" shall have the same
meaning as the term "protected health information" in 45 C.F.R. § 164.501, limited to the
information created or received by Business Associate from or on behalf of Covered
Entity.
Section 1.06 "Required by Law" shall have the same meaning as the term
"required by law" in 45 C.F.R. § 164.501.
Section 1.07 "Secretary" shall mean the Secretary of the Department of Health
and Human Services or his or her designee.
Section 1.08 “Security Incident” shall mean any attempted or successful
unauthorized access, use, disclosure, modification or destruction of information or
systems operations in an electronic information system.
Section 1.09 “Security Rule” shall mean the Standards for Security of PHI,
including ePHI, as set forth at 45 C.F.R. Parts 160 and 164 Subpart C.
Section 1.10 “Unsecured Protected Health Information” shall mean protected
health information that is not rendered unusable, unreadable, or indecipherable to
unauthorized individuals through the use of a technology or methodology specified by
the Secretary.
Terms used but not defined in this Agreement shall have the same meaning as those terms in
the HIPAA regulations.
Article II. Obligations and Activities of Business Associate Regarding PHI.
Section 2.01 Business Associate agrees to not use or further disclose PHI other
than as permitted or required by this Agreement or as Required by Law.
Section 2.02 Business Associate agrees to use appropriate safeguards to
prevent use or disclosure of the PHI other than as provided for by this Agreement.
Section 2.03 Business Associate agrees to ensure that any agents, including
sub-contractors (excluding entities that are merely conduits), to whom it provides PHI
agree to the same restrictions and conditions that apply to Business Associate with
respect to such information.
Section 2.04 Business Associate agrees to provide access, at the request of
Covered Entity, and in a reasonable time and manner designated by Covered Entity, to
PHI in a Designated Record Set that is not also in Covered Entity's possession, to
Covered Entity in order for Covered Entity to meet the requirements under 45 C.F.R.
§ 164.524.
Section 2.05 Business Associate agrees to make any amendment to PHI in a
Designated Record Set that the Covered Entity directs or agrees to pursuant to 45
C.F.R. § 164.526 in a reasonable time and manner designated by Covered Entity.
Section 2.06 Business Associate agrees to make internal practices books and
records relating to the use and disclosure of PHI available to the Secretary, in a
reasonable time and manner as designated by the Covered Entity or Secretary, for
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purposes of the Secretary determining Covered Entity's compliance with the Privacy
Rule. Business Associate shall immediately notify Covered Entity upon receipt or notice
of any request by the Secretary to conduct an investigation with respect to PHI received
from the Covered Entity.
Section 2.07 Business Associate agrees to document any disclosures of PHI
that are not excepted under 45 C.F.R. § 164.528(a)(1) as would be required for Covered
Entity to respond to a request by an Individual for an accounting of disclosures of PHI in
accordance with 45 C.F.R. § 164.528.
Section 2.08 Business Associate agrees to provide to Covered Entity or an
Individual, in a time and manner designated by Covered Entity, information collected in
accordance with paragraph (g) above, to permit Covered Entity to respond to a request
by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R.
§ 164.528.
Section 2.09 Business Associate agrees to use or disclose PHI pursuant to the
request of Covered Entity; provided, however, that Covered Entity shall not request
Business Associate to use or disclose PHI in any manner that would not be permissible
under the Privacy Rule if done by Covered Entity.
Article III. Permitted Uses and Disclosures of PHI by Business Associate.
Section 3.01 Business Associate may use or disclose PHI to perform functions,
activities or services for, or on behalf of, Covered Entity provided that such use or
disclosure would not violate the Privacy Rule if done by Covered Entity.
Section 3.02 Business Associate may use PHI for the proper management and
administration of Business Associate and to carry out the legal responsibilities of
Business Associate.
Section 3.03 Business Associate may disclose PHI for the proper management
and administration of Business Associate and to carry out the legal responsibilities of
Business Associate if:
(i) such disclosure is Required by Law, or
(ii) Business Associate obtains reasonable assurances from the person to
whom the information is disclosed that such information will remain
confidential and used or further disclosed only as Required by Law or for
the purposes for which it was disclosed to the person, and the person
agrees to notify Business Associate of any instances of which it is aware
that the confidentiality of the information has been breached.
Section 3.04 Business Associate shall limit the PHI to the extent practicable, to
the limited data set or if needed by the Business Associate, to the minimum necessary to
accomplish the intended purpose of such use, disclosure or request subject to
exceptions set forth in the Privacy Rule.
Section 3.05 Business Associate may use PHI to provide Data Aggregation
services to Covered Entity as permitted by 42 C.F.R. § 164.504(e)(2)(i)(B).
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Article IV. Obligations of Covered Entity Regarding PHI.
Section 4.01 Covered Entity shall provide Business Associate with the notice of
privacy practices that Covered Entity produces in accordance with 45 C.F.R. § 164.520,
as well as any changes to such notice.
Section 4.02 Covered Entity shall provide Business Associate with any changes
in, or revocation of, authorization by an Individual to use or disclose PHI, if such changes
affect Business Associate's permitted or required uses and disclosures.
Section 4.03 Covered Entity shall notify Business Associate of any restriction to
the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45
C.F.R. § 164.522, if such restrictions affect Business Associate's permitted or required
uses and disclosures.
Section 4.04 Covered Entity shall require all of its employees, agents and
representatives to be appropriately informed of its legal obligations pursuant to this
Agreement and the Privacy Rule and Security Standards required by HIPAA and will
reasonably cooperate with Business Associate in the performance of the mutual
obligations under this Agreement.
Article V. Security of Protected Health Information.
Section 5.01 Business Associate has implemented policies and procedures to
ensure that its receipt, maintenance, or transmission of all protected health information
(“PHI”), either electronic or otherwise, on behalf of Covered Entity complies with the
applicable administrative, physical, and technical safeguards required protecting the
confidentiality, availability and integrity of PHI as required by the HIPAA Privacy Rules
and Security Standards.
Section 5.02 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, availability and integrity of PHI as
required by HIPAA Privacy Rules and Security Standards.
Section 5.03 Business Associate agrees to report to Covered Entity any
Security Incident (as defined 45 C.F.R. Part 164.304) of which it becomes aware.
Business Associate agrees to report the Security Incident to the Covered Entity as soon
as reasonably practicable, but not later than 10 business days from the date the
Business Associate becomes aware of the incident.
Section 5.04 Business Associate agrees to establish procedures to mitigate, to
the extent possible, any harmful effect that is known to Business Associate of a use or
disclosure of PHI by Business Associate in violation of this Agreement.
Section 5.05 Business Associate agrees to immediately notify Covered Entity
upon discovery of any Breach of Unsecured Protected Health Information (as defined in
45 C.F.R. §§ 164.402 and 164.410) and provide to Covered Entity, to the extent
available to Business Associate, all information required to permit Covered Entity to
comply with the requirements of 45 C.F.R. Part 164 Subpart D.
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Section 5.06 Covered Entity agrees and understands that the Covered Entity is
independently responsible for the security of all PHI in its possession (electronic or
otherwise), including all PHI that it receives from outside sources including the Business
Associate.
Article VI. Term and Termination.
Section 6.01 Term. This Agreement shall be effective as of the Effective Date
and shall remain in effect until the Business Associate relationship with the Covered
Entity is terminated and all PHI is returned, destroyed or is otherwise protected as set
forth in Section 7(d).
Section 6.02 Termination for Cause by Covered Entity. Covered Entity may
terminate its contract(s) or business association with Business Associate if Covered
Entity determines that Business Associate has violated a material term of the contract, to
include this Agreement.
Section 6.03 Termination by Business Associate. This Agreement may be
terminated by Business Associate upon 30 days prior written notice to Covered Entity in
the event that Business Associate, acting in good faith, believes that the requirements of
any law, legislation, consent decree, judicial action, governmental regulation or agency
opinion, enacted, issued, or otherwise effective after the date of this Agreement and
applicable to PHI or to this Agreement, cannot be met by Business Associate in a
commercially reasonable manner and without significant additional expense.
Section 6.04 Effect of Termination. Upon termination of this Agreement for any
reason, at the request of Covered Entity, Business Associate shall return or destroy all
PHI received from Covered Entity, or created or received by Business Associate on
behalf of Covered Entity. Business Associate shall not retain any copies of the PHI
unless necessary for proper document retention/archival purposes only or if such PHI is
stored as a result of backup email systems that store emails for emergency backup
purposes. If the return or destruction of PHI is infeasible, Business Associate shall
extend the protections of this Agreement to such PHI and limit further uses and
disclosures of such PHI to those purposes that make the return or destruction infeasible,
for so long as Business Associate maintains such PHI.
Article VII. Amendment.
The parties may agree to amend this Agreement from time to time in any other respect that
they deem appropriate. This Agreement shall not be amended except by written instrument
executed by the parties.
Article VIII. Severability.
The parties intend this Agreement to be enforced as written. However, (i) if any portion or
provision of this Agreement will to any extent be declared illegal or unenforceable by a duly
authorized court having jurisdiction, then the remainder of this Agreement, or the application of
such portion or provision in circumstances other than those as to which it is so declared illegal
or unenforceable, will not be affected thereby, and each portion and provision of this Agreement
will be valid and enforceable to the fullest extent permitted by law; and (ii) if any provision, or
part thereof, is held to be unenforceable because of the duration of such provision, the Covered
Entity and the Business Associate agree that the court making such determination will have the
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power to modify such provision, and such modified provision will then be enforceable to the
fullest extent permitted by law.
Article IX. Notices.
All notices, requests, consents and other communications hereunder will be in writing, will be
addressed to the receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and will be either (i) delivered by hand, (ii) made facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by registered mail or certified mail, return
receipt requested, postage prepaid.
If to the Covered Entity:
City of Fort Collins
Attn: Lynn Sanchez
PO Box 580
Fort Collins, CO 80522
Copy:
If to the Business Associate:
HUB International Insurance Services Inc.
Attn: Jim Sampson
4065 St. Cloud Dr. Ste. 201
Loveland, CO 80538
Article X. Regulatory References.
A reference in this Agreement to a section in the Privacy Rule means the referenced section
or its successor, and for which compliance is required.
Article XI. Headings and Captions.
The headings and captions of the various subdivisions of the Agreement are for convenience
of reference only and will in no way modify or affect the meaning or construction of any of the
terms or provisions hereof.
Article XII. Entire Agreement.
This Agreement sets forth the entire understanding of the parties with respect to the subject
matter set forth herein and supersedes all prior agreements, arrangements and
communications, whether oral or written, pertaining to the subject matter hereof.
Article XIII. Binding Effect.
The provisions of this Agreement shall be binding upon and shall inure to the benefit of
both Parties and their respective successors and assigns.
Article XIV. No Waiver of Rights, Powers and Remedies.
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
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No failure or delay by a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, will operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of any right, power or
remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, will preclude such party from any other or
further exercise thereof or the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto will not constitute a waiver of the right of such party to
pursue other available remedies. No notice to or demand on a party not expressly required
under this Agreement will entitle the party receiving such notice or demand to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the right of
the party giving such notice or demand to any other or further action in any circumstances
without such notice or demand. The terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent will be deemed
to be or will constitute a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent will be effective only in the
specific instance and for the purpose for which it was given, and will not constitute a continuing
waiver or consent.
Article XV. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the
State of Colorado.
Article XVI. Interpretation.
It is the Parties' intent to comply strictly with all applicable laws, including without limitation,
HIPAA, state statutes, or regulations (collectively, the "Regulatory Laws"), in connection with
this Agreement. In the event there shall be a change in the Regulatory Laws, or in the reasoned
interpretation of any of the Regulatory Laws or the adoption of new federal or state legislation,
any of which are reasonably likely to materially and adversely affect the manner in which either
Party may perform or be compensated under this Agreement or which shall make this
Agreement unlawful, the Parties shall immediately enter into good faith negotiations regarding a
new arrangement or basis for compensation pursuant to this Agreement that complies with the
law, regulation or policy and that approximates as closely as possible the economic position of
the Parties prior to the change. In addition, the Parties hereto have negotiated and prepared
the terms of this Agreement in good faith with the intent that each and every one or the terms,
covenants and conditions herein be binding upon and inure to the benefit of the respective
Parties. To the extent this Agreement is in violation of applicable law, then the Parties agree to
negotiate in good faith to amend this Agreement, to the extent possible consistent with its
purposes, to conform to law.
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IN WITNESS WHEREOF, the parties have executed this Business Associate Agreement as
of the Effective Date.
BUSINESS ASSOCIATE:
HUB INTERNATIONAL INSURANCE SERVICES
INC.
By:
Print Name:
Title:
COVERED ENTITY:
CITY OF FORT COLLINS
By:
Gerry Paul
Purchasing Director
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Scott Browning
Senior Vice President