PROFESSIONAL SERVICES AGREEMENT
FOR
HEALTH BENEFITS BROKER OF RECORD SERVICES
THIS AGREEMENT made and entered by and between the KENAI PENINSULA BOROUGH and the KENAI PENINSULA BOROUGH SCHOOL DISTRICT and WILLIS OF ALASKA, INC. (also known as Willis).
Section 1. Definition. In this Agreement:
1. The term "Borough" means the Kenai Peninsula Borough and Kenai Peninsula Borough School District.
2. The term "Consultant" or "Broker of Record" means Willis of Alaska, Inc. (also known as Willis).
3. The term "Mayor" means the mayor of the Kenai Peninsula Borough or his authorized representative.
Section 2. Scope of Services. The Broker of Record shall perform all the services provided for by this Agreement as described in and subject to the conditions contained in Attachments A and B. Except to the extent the language is clearly inapplicable, these conditions are incorporated by reference as if fully set forth herein.
A. Attachment A is the Request For Proposals titled: Insurance Broker of Record, dated April 1, 2003.
B. Attachment B is the entire Proposal, submitted by Willis in response to Attachment A, on May 1, 2003.
Section 3. Personnel. Personnel shall be limited to those listed in Attachment B, the proposal to the Kenai Peninsula Borough and School District, dated May 1, 2003.
Section 4. Time of Performance. The services of the Broker of Record shall commence May 7, 2003, and shall terminate on June 30, 2006. The period of performance may be extended for an additional 3-year period only by the mutual written agreement of the parties.
Section 5. Compensation.
A. Subject to the provisions of this Agreement, the Borough shall pay the Broker of Record a total sum for all services and expenses listed in the Scope of Work of Attachment B, for the term of this Agreement not exceeding the prepaid sum of $75,000 per year, not to exceed $225,000 over the life of the contract.
B. Actuarial studies needed over the life of the contract shall be negotiated but are not expected to exceed an average of $8,000 per study.
C. Services needed beyond the Scope of Work shown in Attachment B shall be negotiated at a rate of $125.00 per hour.
D. Except as otherwise provided in this Agreement, the Borough shall not provide any additional compensation, payment, service or other thing of value to the Broker of Record in connection with performance of Agreement duties. The parties understand and agree that, except as otherwise provided in this agreement, administrative overhead and other indirect or direct costs the Broker of Record may incur in the performance of its obligations under this Agreement have already been included in computation of the Broker of Record's fee and may not be charged to the Borough.
Section 6. Method and Time of Payment.
A. Normal billing cycle is 30 calendar days from receipt of an approved invoice.
B. All invoices must be submitted in duplicate and addressed as follows:
Kenai Peninsula Borough
Attn: Risk Management
144 N. Binkley Street
Soldotna, AK 99669
C. It is expressly understood and agreed that in no event shall the total compensation due the Broker of Record exceed the prepaid total of $75,000 per year except as listed under Section 5. Compensation, listed above.
Section 7. Ownership. All finished or unfinished documents, data, studies, surveys, and reports or other material prepared by the Broker of Record under this agreement are the property of the Borough.
Section 8. Termination of Agreement for Cause. If, through any cause, the Broker of Record shall fail to fulfill in a timely and proper manner the obligations under this Agreement or if the Broker of Record shall violate any of the covenants, agreements, or stipulations of this Agreement, the Borough shall have the right to terminate this Agreement by giving written notice to the Broker of Record of termination and specifying the effective date thereof, at least five (5) days before the effective date of such termination. All finished or unfinished documents, data, studies, surveys and reports or other material prepared by the Broker of Record under this Agreement are the property of the Borough and shall be delivered to the Borough by or upon the effective date of termination. The Broker of Record shall be entitled to receive compensation only for work completed to the Borough's satisfaction in accordance with the terms of this Agreement.
Section 9. Termination for Convenience of Borough. The Borough may terminate this Agreement at any time by giving written notice to the Broker of Record of such termination and specifying the effective date of such termination. All finished or unfinished documents and other materials as described in Section 8, above, are the property of the Borough and shall be delivered to the Borough by or upon the effective date of termination. The Broker of Record shall be entitled to receive compensation in accordance with the payment provisions of this Agreement only for work completed to the Borough's satisfaction in accordance with the terms of this Agreement. If this Agreement is terminated due to the fault of the Broker of Record, Section 8 of this Agreement shall govern the rights and liabilities of the parties.
Section 10. Causes Beyond Control. In the event the Broker of Record is prevented by a cause or causes beyond control of the Broker of Record from performing any obligation of this Agreement, nonperformance resulting from such cause or causes shall not be deemed to be a breach of this Agreement which will render the Broker of Record liable for damages or give rights to the cancellation of this Agreement for cause. However, if and when such cause or causes cease to prevent performance, the Broker of Record shall exercise all reasonable diligence to resume and complete performance of the obligation with the least possible delay. The phrase "cause or causes beyond control," as used in this section, means any one or more of the following causes which are not attributable to the fault or negligence of the Broker of Record and which prevent the performance of the Broker of Record: fire, explosions, acts of God, war, orders or law of duly constituted public authorities, and other major uncontrollable and unavoidable events, all of the foregoing which must actually prevent the Broker of Record from performing the terms of this Agreement. Events that are peculiar to the Broker of Record and would not prevent another Broker of Record from performing, including, but not limited to financial difficulties, are not causes beyond the control of the Broker of Record. The Borough will determine whether the event preventing the Broker of Record from performing is a cause beyond the Broker of Record's control.
Section 11. Modifications.
A. The parties may mutually agree to modify the terms of this Agreement. Modifications to this Agreement shall be incorporated into this Agreement by written amendments.
B. It is expressly understood that the Borough may require changes in the scope of services and an unreasonable refusal by the Broker of Record to agree to modification in the scope of services will be the basis for termination of this Agreement for cause. It is expressly understood that the total amount of compensation for successful performance of this Agreement will not be modified, under any circumstances, without prior written approval of the Borough.
Section 12. Interest of Members of Borough and Others. No officer, member or employee of the Borough and no member of its governing body, and no other public official of the governing body shall participate in any decision relating to this Agreement which affects their personal interest or the interest of any corporation, partnership or association in which they are, directly or indirectly, interested or having any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof.
Section 13. Assignability.
The Broker of Record shall not assign any interest in this Agreement and shall not transfer any interest in the same (whether by assignment or notation) without the prior written consent of the Borough thereto; provided, however, that claims for money due or to become due to the Broker of Record from the Borough under this Agreement may be assigned by court order or to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the Borough, or the Broker of Record shall be responsible to the Borough for any moneys due the assignee of this Agreement that are paid directly to the Broker of Record.
Section 14. Interest of Broker of Record. The Broker of Record covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Broker of Record further covenants that in the performance of this Agreement no person having any such interest shall be employed.
Section 15. Findings Confidential. To the extent permitted or required by law any reports, information, data, etc., given to or prepared or assembled by the Broker of Record under this Agreement which the Borough requests to be kept confidential shall not be made available to any individual or organization by the Broker of Record without the prior written approval of the Borough.
Section 16. Publication, Reproduction and Use of Materials. No material produced, in whole or in part, under this Agreement shall be subject to copyright in the United States or in any other country. The Borough shall have unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement.
Section 17. Jurisdiction; Choice of Law. Any civil action arising from this Agreement shall be brought in the superior court for the third judicial district of the state of Alaska at Kenai. The law of the state of Alaska shall govern the rights and obligations of the parties.
Section 18. Non-Waiver. The failure of the Borough at any time to enforce a provision of this Agreement shall in no way constitute a waiver of the provisions, nor in any way affect the validity of this Agreement or any part thereof, or the right of the Borough thereafter to enforce each and every protection hereof.
Section 19. Permits, Laws and Taxes. The Broker of Record shall acquire and maintain in good standing all permits, licenses and other entitlements necessary to the performance under this Agreement. All actions taken by the Broker of Record under this Agreement shall comply with all applicable federal, state, and local regulations including, but not limited to, those laws related to wages, taxes, social security, workers compensation, nondiscrimination, licenses, and registration requirements. The Broker of Record shall pay all taxes pertaining to its performance under this Agreement.
Section 20. Agreement Administration.
A. The Risk Manager, or his designee, will be the representative of the Borough administering this Agreement.
B. The services to be furnished by the Broker of Record shall be administered, supervised, and directed by Jana Smith and/or Randy Pugh. In the event that the individual named above or any of the individuals identified in the proposal to perform work under this Agreement is unable to serve for any reason, the Broker of Record shall appoint a successor in interest subject to written approval of the Borough.
Section 21. Integration. This instrument and all appendices and amendments hereto embody the entire agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein; and this Agreement shall supersede all previous communications, representations or agreements, either oral or written, between the parties.
Section 22. Defense and Indemnification. The Broker of Record shall indemnify, defend, save and hold the Borough, its elected and appointed officers, agents and employees, harmless from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees. The Broker of Record shall be responsible under this clause for any and all actions or claims of any character resulting from Broker of Record or Broker of Record's officers, agents, employees, partners, attorneys, suppliers, and subcontractors' performance or failure to perform this Agreement in any way whatsoever including but not limited to claims for (1) personal injuries, (2) death, (3) economic loss, (4) property damages, (5) contract violations, (6) violation of statutes, ordinances, constitutions, rules or regulations, or other laws, (7) or any other kind of loss sustained by any person, or property arising from performance or failure to perform under this Agreement.
This defense and indemnification responsibility includes claims alleging acts or omissions by the Borough or its agents that are said to have contributed to the losses, failure, violations, or damage. However, Broker of Record shall not be responsible for any damages or claim arising from the sole negligence or willful misconduct of the Borough, its agents, or employees.
Section 23. Interpretation and Enforcement. This Agreement is being executed by the parties following negotiations between them. It shall be construed according to the fair intent of the language as a whole, not for or against any party. The titles of sections in this Agreement are not to be construed as limitations or definitions but are for identification purposes only.
Section 24. Relationship of the Parties. The services to be rendered under this Agreement are those of an independent contractor. The Broker of Record will not at any time directly or indirectly act as an agent, servant or employee of the Borough or make any commitments or incur any liabilities on behalf of the Borough without the Borough's express consent. The Borough shall not supervise or direct the Broker of Record except as set forth in this agreement.
Section 25. Insurance. Broker of Record and all subcontractors, if any, shall be responsible for the purchase and maintenance of minimum insurance coverage as specified in paragraphs A and B of this section.
This insurance coverage shall be in acceptable form, and for the amounts specified by the Borough, or as required by law, whichever is greater.
This insurance coverage shall remain in effect for the life of this Agreement and shall be a part of the contract price. This insurance shall be primary and exclusive of any other insurance carried by the Borough.
A. Commercial General Liability insurance shall not be less than $2,000,000 per occurrence.
B. Commercial Auto Liability insurance shall not be less than $1,000,000 combined single limit bodily injury and property damage per occurrence.
C. Worker's compensation and employers liability insurance shall be provided for all employees per Alaska State Statutes who are performing work under this Agreement.
D. Professional Liability - Insurance Broker's Errors and Omissions insurance shall be not less than $3,000,000.
E. Certificate(s) of insurance as described in paragraphs A, B, C and D of this section shall be provided by Broker of Record, and certificates as described in paragraphs A and B by all subcontractors, or their insurance companies or their agents. The Borough shall be named as an additional insured on the policies specified in paragraph A and B for the work specified in this Agreement. Certificates of insurance, acceptable in form and content, will be delivered to:
Kenai Peninsula Borough
Risk Management
144 N. Binkley Street
Soldotna, AK 99669
F. There shall be no cancellation or material change of the insurance coverages, or intent not to renew the insurance coverages as specified in this Agreement, without thirty (30) days prior written notice to the Borough. Notice of cancellation, material change in coverage, or intent not to renew will be delivered to the address designated in paragraph E of this section. Cancellation or material change in insurance coverage without written authorization by the Borough is a material breach of this Agreement, and subjects this Agreement to termination for cause under Section 8.
G. Upon renewal or change in policies during this Agreement, certificates of insurance shall be delivered to the address designated in paragraph E of this section.
H. All policies will include a waiver of subrogation against the Borough. The Borough will not accept a tender of defense alleging bad faith.
Section 26. Severability. If any section or clause of this Agreement is held invalid by a court of competent jurisdiction, or is otherwise invalid under the law, the remainder of this Agreement shall remain in full force and effect.
Section 27. Understanding. The Broker of Record acknowledges that the Broker of Record has read and understands the terms of this Agreement, has had the opportunity to review the same with counsel of their choice, and is executing this Agreement of their own free will.
Section 28. Notices. Any notice required pertaining to the subject matter of this Agreement shall be personally delivered or mailed by prepaid first-class, registered or certified mail to the following addresses:
Kenai Peninsula Borough: Risk Management
144 N. Binkley Street
Soldotna, AK 99669
Broker of Record: Willis of Alaska, Inc.
4220 B Street
Anchorage, AK 99503
Section 29. Consultant's Violations of Tax Obligations.
A. This Agreement can be terminated for cause, pursuant to Section 8, if it is determined that a consultant is in arrears of any taxation, lease or rental agreement that is due to the Borough that is not remedied within ten (10) calendar days of notification by regular mail.
B. The Borough reserves any right it may have to offset amounts owed by an individual, firm, corporation or business for delinquent Borough taxes, moneys owed on sales, assessments, leases and rental agreements, against any amount owing to the same under an agreement between the Borough and the same.
Section 30. Fund Verification. Fund source and verification of funds for this project:
Prorated Funding Sources: 700-11236-00000-43508 for Workers' Compensation
700-11237-00000-43511 for Property
700-11238-00000-43515 for Liability
KENAI PENINSULA BOROUGH BROKER OF RECORD
By: By:
Its: Its:
Dated: Dated:
KENAI PENINSULA BOROUGH SCHOOL DISTRICT
By:
Its:
Dated:
ATTEST: APPROVED AS TO FORM AND
LEGAL SUFFICIENCY BY:
Borough Clerk Colette Thompson
Borough Attorney
ACKNOWLEDGMENTS
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this ____ day of , 200__, by , Mayor of the Kenai Peninsula Borough, an Alaska municipal corporation, for the corporation on behalf of the corporation.
_________________________________
Notary Public for State of Alaska
My Commission Expires: __________
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this ____ day of , 200__, by __________________________, the _______________________________ of __________________________for and on behalf of ___________________________.
_________________________________
Notary Public for State of Alaska
My Commission Expires: __________