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2016-52 CONTINUING SERVICES AND AGREEMENT FOR EMPLOYEE HEALTHCARE AND BENEFITS CONSULTING SERVICES THIS AGREEMENT is entered into as of this 1St day of January 2017, by and between the CITY OF CLERMONT,FLORIDA,a municipal corporation under the laws of the State of Florida whose address is: 685 W. Montrose Street, Clermont, Florida, hereinafter referred to as "CITY" and HYLANT OF ORLANDO, LLC., 250 International Parkway, Suite 330, Lake Mary, Florida, hereinafter referred to as "CONSULTANT." WITNESSETH WHEREAS,CONSULTANT is engaged in the design,management and administration of insurance programs and in providing other services (hereinafter collectively "Benefit Consulting Services"); and WHEREAS, CITY desires to employ CONSULTANT for Employee Healthcare and Benefits Consulting and/or Brokerage Services; WHEREAS,the CITY, in accordance with Section 287.055,Florida Statutes, solicited proposals for professional services as more fully described and set forth in Employee Healthcare and Benefits Consulting Services RFQ 16-033; and WHEREAS, the CONSULTANT submitted a proposal to provide said services and has represented to CITY that it is qualified and desires to perform said services in accordance with the terms and conditions contained herein, and all applicable law and professional standards; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows: 1.0 TERM 1.1 This Agreement is to become effective on January 1, 2017 and shall remain in effect for a four(4)year term,unless terminated as provided for herein. The parties agree that the term may be extended upon mutual agreement for two (2) periods of one (1) year each unless authorized by the City Council for additional extensions. 2.0 LIMITS OF AUTHORITY 2.1 CONSULTANT will not enter into any contract for the benefit of the CITY without the CITY's express prior written approval. CONSULTANT is authorized to interact with current and prospective carriers and vendors. 1 3.0 CITY.RESPONSIBILITIES 3.1 CITYshall have the responsibility to report and communicate changes in exposures, loss- related data or other information that may materially affect CITY's Employee Benefit program. 4.0 CHANGES IN THE SCOPE OF WORK 4.1 CITY may make changes in the services at any time by giving written notice to CONSULTANT. If such changes increase (additional services) or decrease or eliminate any amount of work, CITY and CONSULTANT will negotiate any change in total cost or schedule of modifications.`If the CITY and CONSULTANT approve any change,the task authorization/work order will be modified to reflect the changes;and CONSULTANT shall be compensated for said services in accordance'with the terms of Article 5.0 herein. All change orders shall be authorized in writing by CITY'S and CONSULTANT'S designated representatives. 4.2 All of CITY'S said task authorizations/work orders and amendments thereto shall be performed in strict accordance with the terms of this Agreement insofar as they are applicable. 5.0 METHOD OF PAYMENT 5.1 The CITY agrees to and does engage CONSULTANT to perform the professional services for compensation described herein and as set forth in Exhibit A attached hereto and incorporated herein and the parties do further agree: 5.1.1 As a condition precedent to receiving payment, CONSULTANT shall have been authorized to proceed by CITY for the specific phase, shall not be in default of any of the terms and conditions of this Agreement and shall provide to CITY an invoice. 5.1-.2 CITY shall pay all valid, approved and undisputed invoices as set forth in Exhibit A within thirty(30) days of receipt from CITY. In the event that CITY disputes any invoice submitted, it shall advise CONSULTANT in writing and said invoice shall not be deemed due and payable under this agreement. Neither the City's review approval or acceptance of,nor payment for,any services provided hereunder shall be construed to operate as a waiver of any rights,under this Agreement and CONSULTANT shall be liable to CITY for any and all damages to CITY caused by CONSULTANT'S negligent or wrongful performance of any of the services furnished under this Agreement. 5.1.3 CONSULTANT agrees to assign competent professionals to perform the assigned responsibilities and duties faithfully, intelligently, and to the best of their ability, and in the best interest of CITY during the term of this Agreement. All services provided shall be performed in accordance with this Agreement and with any and all applicable law, professional standards and guidelines. CITY may request 2 CONSULTANT to make changes in the scope of services or make revisions to the work performed. Any changes or revisions requested by CITY that are not due to CONSULTANT error,'omission or negligence will be incorporated into the scope of services by:written_amendment to this agreement and CONSULTANT may be entitled to additional compensation upon the agreement of the parties. 5:2 It is recognized by CITY that certain insurers provide contingent agreements to agents and brokers on certain lines of coverage:: These contingent agreements vary from insurer to insurer and may consider several different factors including;growth, profitability (loss ratio) and premium retention on certain lines of coverage placed with the insurer by the CONSULTANT, broker or agent To the,extent that CONSUTANT is a party to any contingent agreements with any insurer, it will disclose those agreements to CITY prior to any authorization by CITY to provide services hereunder: As such agreements are applied retrospectively for the overall performance of all business placed with the insurer by CONSULTANT over the ensuing One,,:two or three years, the contingent agreement will not be considered as part of the CITY fee under this Agreement and CONSULTANT shall have no duty to reimburse or offset the amount paid under any contingent agreement against the fees identified in Article 5.1 CONSULTANT warrants and represents that such contingent agreements will not affect CONSULTANT's recommendations as to placement of insurance with any particular insurer. 5.3 It is recognized that CONSULTANT may, in the course of providing Agreed Services,use the services of third parties foractuarial or other services. To the extent that • CONSULTANT retains such services from third parties including, but not limited to, affiliates of CONSULTANT,the cost of such third parties willnot be included in the fee in Article 5.1 unless otherwise agreed to by the.CONSULTANT. Provided, however that CITY shall not be responsible for the cost of such third parties, unless CITY has approved the use thereof in writing prior to the engagement of their services. To the extent that CITY also uses-third party wholesalersor other third party intermediaries in the selection and placement of insurance for CITY, such wholesalers will be compensated through commissions directly from the insurance company and CITY shall have no obligation to makepayments to such third parties:-Nor shall such compensation received by third parties be applied against the fee paid to CONSULTANT specified in.Article 5.1. 5.4 If it is mutually agreed that if the level of compensation is inappropriate because of changes in the size of CITY's business,the demand'for Agreed Services, and/or the complexity of the:program to be covered by this Agreement, the parties will negotiate in good faith a change in the above-referenced fee. 6.0 CONFIDENTIALITY OF MATERIALS 6.1 CONSULTANT shall comply with applicable state and federal laws and regulations relating to the privacy and security of individually identifiable health care information, including without limitation the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and its implementing regulations, as they may be amended from time to time. CONSULTANT recognizes that its performance of certain services pursuant to this 3 Agreement may render it a business associate of CITY and as such, will execute a reasonable form of Business Associate Agreement as requested by CITY, provided that such agreement imposes no greater obligations on CONSULTANT than required of a business associate under HIPAA. 6.2 CONSULTANT acknowledges that by reason of the nature of the services to be provided, CONSULTANT and its personnel may become acquainted with CITY vendor lists, records, pricing information, operating procedures, sales and marketing methods and procedures and other information which CITY may deem as confidential, proprietary and/or trade secret. CONSULTANT agrees that it will use such information provided by CITY solely in providing the Agreed Services and will disclose, divulge, discuss, disseminate, copy or otherwise use or cause to be used any of CITY's information only as required in performing the Agreed Services. In the course of providing services, CITY recognizes that CONSULTANT may provide information to third parties, including insurers and/or underwriters, wholesalers, or other third parties with whom CONSULTANT has contracts to provide services under this Agreement and that the disclosure of such information to such third parties shall not constitute a breach of this Article 6.0. Upon the termination of this Agreement, CONSULTANT will retain all of the files of CITY, and shall, at CITY's request, either destroy and/or return any specific information or records as requested by CITY in writing. 6.3 CITY acknowledges that, during the course of its representation by CONSULTANT, it may receive information from CONSULTANT regarding its employee benefit programs, including proposals,reports or analyses prepared by CONSULTANT. CITY agrees to hold such information as confidential and to only provide it to its CITY's representatives who have a direct responsibility in working with CONSULTANT in providing the services under this Agreement. CITY agrees to destroy and/or return to CONSULTANT any documents identified by CONSULTANT in writing upon the termination of this Agreement. 6.4 The parties acknowledge that the terms of this section do not apply to information that is (i) publicly available or becomes so in the future without restriction, (ii) rightly received by the other party from third parties and not accompanied by privacy obligations, (iii) already in the other party's possession and lawfully received from sources other than the party to this Agreement, (iv) independently developed by either party, or (v) approved in writing for release or disclosure without restriction by an authorized representative of the other party. The parties further recognize that any party may disclose the other party's materials to the extent required to comply with Florida's Public Records Law, any subpoena, order or directive of any court or governmental body; provided, however, that any party receiving such a demand/request shall use reasonable efforts to give the other party prior notice of any such disclosure for the purpose of enabling the other party to obtain a protective order. 4 7.0 TERMINATION 7.1 The non-breaching party upon breach of the terms and conditions contained herein may terminate this Agreement. 7.2 Additionally, CITY shall have the right to terminate the agreement, for any reason, upon thirty(30):days written notice to CONSULTANT. In the event of termination by the CITY pursuant to this Article 7.0, CONSULTANT shall be compensated in accordance with the services completed and accepted, as of the date of the termination and as set forth in the Exhibit A. 7.3 The termination of this Agreement, without regard to cause, shall terminate all rights, duties and obligations between the parties. Upon the effective date of the termination, unless otherwise agreed in writing or as specified in this section, CONSULTANT shall have no further obligation to provide broker or client services under this Agreement. CONSULTANT shall cooperate over a period of sixty (60) days after effective date of termination in providing,non-confidential information to assist in the transfer of any program or coverages for CITY to any subsequent service provider selected by CITY. To the extent.CITY desires CONSULTANT to provide assistance for an extended service periodbeyond the sixty(60) days, the parties agree to participate in a good faith negotiate a fee and outlineof defined service(s) for the extended period. 8.0 INDEMNIFICATION 8.1 CONSULTANT agrees to indemnify, defend and hold CITY harmless from any and all manner of suit,claims, actions, losses, damages, liability and expenses, including attorney fees, arising solely from any acts, errors, omissions or misrepresentations of CONSULTANT, its employees,agents; or servants; regarding the subject matter of this Agreement. 8.2 To the extent provided by law, CITY agrees to indemnify, defend and hold CONSULTANT harmless from any and all manner of suit,claims,action,losses,damages, liability and expenses, including attorney fees, arising solely from any acts, errors, omissions ormisrepresentations of CITY or its employees, agents, or servants, regarding the subject matter of this Agreement. Nothing herein shall be construed or act as a waiver of any sovereign immunity that CITY may enjoy as a matter of law. 8.3 This indemnification shall survive the term of this Agreement. 9.0 GOVERNING LAW This Agreement shall be governed by the substantive law of Florida without regard to its choice of law rules. 5 10.0 INDEPENDENT CONTRACTOR STATUS The parties recognize and agree that although CONSULTANT shall be working closely with CITY in the placement of its insurance and providing other services, CONSULTANT is an independent contractor and neither CONSULTANT nor any of its agents, servants or employees shall be considered to be employees, agents or servants of CITY. CONSULTANT shall retain the right to exercise control over the manner in which it renders services,except as set forth in this Agreement. 11.0 NON-ASSIGNABILITY Neither CONSULTANT nor CITY shall assign or transfer the respective rights or obligations under this Agreement without specific written,prior approval of the other party. The section shall not apply, however, to corporate reorganizations or mergers of CITY which do not materially change its business. 12.0 ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement of understandings, whether oral or written, to the contrary. Every change, amendment or alteration in this Agreement shall be in writing and signed by the parties hereto. 13.0 REPRESENTATION The daily business of this Agreement will be carried out by CONSULTANT's Employee Benefits Department or an authorized representative of CONSULTANT and by the CITY designee. 14.0 NOTICE Any notices required to be given by the terms of this Agreement shall be delivered by hand or mailed, postage prepaid to: CITY: City of Clermont Darren Gray, City Manager 685 West Montrose Street Clermont, Florida CONSULTANT: Hylant Orlando, LLC Andria Herr, President 250 International Parkway, Suite 330 Lake Mary, FL 32746 Either party may change the name of the person receiving notices and the address at which notices are received by so advising the other party in writing. 6 15.0 SEVERABILITY In the event any provision of this Agreement conflicts with laws applicable hereto or under which this Agreement is construed, or if any provision of this Agreement shall be held illegal or unenforceable or partially illegal or unenforceable by a court with jurisdiction over the parties to this Agreement, then this Agreement shall be modified to conform with said laws or judicial determination and such provision shall be constructed and enforced only to such an extent as it may be a legal and enforceable provision,and all other provisions of this Agreement shall be given full effect, separately there from, and shall not be affected thereby. 16.0 INSURANCE CONSULTANT will maintain General Liability, Auto Liability, Workers' Compensation and Errors and Omissions Insurance in limits and issued by insurance companies acceptable to Client. CONSULTANT will provide evidence of insurance to CITY, prior to the commencement of services hereunder. 17.0 FORCE MAJEURE Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God: fire; flood; windstorm; explosion;riot; war; sabotage; strikes; extraordinary breakdown of or damage to CITY'S affiliates' generating plants, their equipment,or facilities; court injunction or order; federal and/or state law or regulation;order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstances of Force Majeure remain in effect for sixty(60) days, either party may terminate this Agreement. 18.0 MARKET SECURITY CONSULTANT does not guarantee the solvency of any underwriters with which we place insurance. CONSULTANT encourages CITY to review the publicly available information collected by CONSULTANT to make the ultimate decision to accept or reject a particular underwriter. 19.0 PROHIBITION AGAINST CONTINGENT FEES CONSULTANT warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee/contractor working solely for CONSULTANT any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award of making of this agreement. For breach or violation of this provision, in addition to any and all remedies available to CITY, CITY shall have the right to terminate this agreement without liability and to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 7 20.0 PRE-SUIT MEDIATION Prior to, and as a condition precedent to the commencement of any lawsuit or administrative proceeding to resolve any disputes arising out of this Agreement the parties agree that the dispute first shall be summited to non-binding mediation for a minimum of eight hours before a business mediation organization approved by the parties. Such mediation shall be held at the CITY's offices at the address set forth above. The parties shall bear the costs of the mediation equally. 21.0 PUBLIC RECORDS CONSULTANT expressly understands records associated with this project are public records and agrees to comply with Florida's Public Records law, to include, to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein. (b) Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida's Public Records law or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of CONSULTANT upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. (e) IF CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTRACTOR SHALL CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT CITY CLERK'S OFFICE, (352) 241-7331. 8 IN WITNESS WHEREOF,the parties have executed this Agreement on the date indicated below: CITY OF CLERMONT, FLORIDA BY: ../" ail L. Ash, Mayor ATTEST.,;'; ,q*O111f 4�r l4 - / • pry. Trac `AckroY d ty Clerk r1 X41, S't, , . ^•�; ynnil HYLANT ORLANDO, LLC. BY: azdAzet, /{jeAj ___ Andria Herr, President ATTEST: (11112t4dOda-tii (CORPORATE SEAL) 9 EXHIBIT A Fee Schedule The following fee schedule will be effective from January 1, 2017 to December 31, 2017 and will be net of commissions for Hylant. Scope of Services Fee Schedule Cost $55,000.00 Review,analyze,and provide recommendation of current and future employee benefit plans, including critical plan components,appropriate funding,and propose plan changes supported by fact driven analysis and best practices. Assist in the implementation and oversight of the self-funded health and dental plan,vision, life,accidental death&dismemberment,short&long term disability,and other voluntary fully-insured benefits. Provide guidance on annual budgets, recommended reserves, payroll deduction allocations,and plan costs. Assist with data collection,questions,and review of the health plan annual actuarial required filings. (The actuary report is prepared by an independent actuarial firm.) Assist in the preparation of data required for annual financial reporting in accordance with governmental standards board statement No.45, Accounting and Financial Reporting by Employer for Post-employment Benefits other than Pensions,and other accounting standards promulgated by governmental standard setting bodies. Advise and provide interpretations on new healthcare and benefit plan models,delivery systems,and other topics as necessary. Develop and recommend performance standards and guarantees for services providers to measure levels of service as applicable. Provide independent annual review of group health programs including funding, reserves,service,benefit plan provisions, premium history, contractual provisions and competitiveness. Provide general and technical guidance on employee benefit issues to include healthcare utilization patterns, market analysis,and contract trends. Attend and present as City Council meetings. Designate a Project Manager for the Agreement at no additional cost to the City.Any changes to the Project Manager cannot be made without the prior approval of the City's Human Resources Director.Consultant shall provide at least two(2)weeks prior notification of any such change request. Provide assistance to City staff in vendor renewal negotiations, including evaluation of proposed rates, plan changes and financial analysis. Solicitations Included Assist in the develop of formal solicitations for employee benefit plans including the preparation of the scopes of services and evaluation criteria, analysis of proposals received and preparation of response comparison, network review,present to and serve as a technical advisor(non-voting)to the Evaluation Committee,fee and contract negotiations,and be prepared to defend recommendations.Fee is based per area of solicitation,defined as follows: (1) Medical, Pharmacy,Stop Loss and Dental. (2) Employer paid ancillary lines of coverage. Provide assistance to City staff in vendor award negotiations, including evaluation of proposed rates,plan changes and financial analysis. Compliance/Contract Review Included Provide general and technical guidance on employee benefit issues to include federal regulation and statute interpretation. Review all plan documents and proposed amendments for accuracy, completeness,and compliance with appropriate laws and regulations. Assist in the preparation, maintenance,and implementation of the Section 125 Plan. Pay for outsourced Cobra administration vendor. Assist with the development of policies and procedures regarding eligibility, retirement, Health Insurance Portability and Accountability Act(HIPAA),and other related topics. Provide ongoing training for City Staff to ensure appropriate controls, plan provision compliance,and statutory compliance(e.g.HIPAA training). Provide updates on law,regulatory,legislative changes,and related compliance issues such as the Patient Protection and Affordable Care Act, including administrative and financial impacts,timelines and requirements. Plan Modeling Included Analyze the feasibility of alternative employee benefit program designs and cost containment methods by modeling and providing recommendations and assisting in the development and implementation of such programs. Employee Engagement Included Assist in the development and review of communication materials written by benefits vendors and administrators for content,appearance,compliance, and accuracy. Assist in the coordination, material preparation, presentation and other tasks for the City's annual open enrollment period. Attend and present at employee meetings. Wellness Included Assist in the evaluation of the effectiveness of wellness initiatives and disease management programs and suggest program options. Member Services Assist the City and plan members in resolving claims or other disputes related to vendors,carriers and/or providers. Additional Services Varies In the event that the City is involved in litigation arising from the solicitation process,the agreement,or employee grievances,the Consultant may be $250 per hour required by the City to prepare the necessary materials and to testify. Conduct periodic audits of health plan administrator/provider,analyze results and prepare reports,when requested(a la carte). $250 per hour or per external audit contractor pricing Provide additional health and benefits plan consulting services as deemed $250 per hour or at an necessary. agreed upon project . cost Act as Broker of Record for coverage that is 100%employee paid. Services Standard commissions include all of the above. and contingencies payable. Commissions Lines of coverage include but are not limited to: LTD,STD,Voluntary Life, will be disclosed. Vision, Hospital Indemnity,Cancer and Accident. Notes to Agreement • Local travel and administrative expenses are included in the fees. • Additional charges may apply for work that is mutually agreed upon in writing in advance. • Additional Fees to be added in the form of an addendum to the agreement. • Should commission be payable on lines of coverage addressed under the consulting fee,the consulting fee will be adjusted accordingly.