Contract+SIGNED_ALL+RISK++BROKER.pdf

ALL RISK INSURANCE SERVICE BROKER

CONTRACT #144

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget, Risk Management Division (STATE), and Marsh & McLennan Agency, LLC having its principal place of business at 1166 Avenue of the Americas, New York, NY 10036-2708 (CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall manage the STATE’s All Risk Insurance program by providing the following:

a. Make recommendations regarding carriers, coverage, limits, terms, conditions, and exposures.

b. Obtain the approval of the STATE or appropriate State agency prior to placing the insurance coverage.

c. Assist the State in marketing and placement of renewals in the most efficient and cost-effective manner.

d. Collect lists of items to be covered from each participating agency and obtain coverage by July 1st of each year, for the items. In addition, maintain and keep the list updated and renew coverage annually.

e. Administration of the policy to include allocation of premium and invoicing to individual State agencies.

f. Assist STATE with reporting and monitoring of claims and assist in advocating for the STATE on any disputed or problem claims.

g. Provide answers to the STATE, and obtain clarification from insurers, underwriters or adjusters regarding coverage or claims questions.

h. Attend meetings, as requested, with OMB and other representatives of the STATE and State agencies.

i. Provide the STATE with a formal debriefing at the completion of the contract. The scope of the debriefing will be limited to the work performed by the CONTRACTOR.

j. Provide assistance in the form of an annual report for the STATE as well as advisory services or other written reports or claims summaries as is customarily expected from a professional Insurance Broker.

2. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract as follows:

Each agency shall be invoiced separately for their premium due each agency. The premium will be invoiced annually and will reflect the commission of 10% of the premium (Contractual Amount).

Firm Fixed Price with Adjustment. The Contractual Amount is firm during the initial contract period of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract. During this period, no price increases will be allowed, and the CONTRACTOR must notify the STATE immediately of any price decreases. After the completion of the firm fixed period, the contract may make a written request to the STATE for a price increase. The request must include the basis for the cost increase, such as evidence that the price increase applies to all customers. The STATE must approve, deny, or negotiate the requested price increase within 30 days. Any price changes will be set forth in a written amendment to the contract.

b. Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

4) For any amounts that are or will become due and payable to STATE by

CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

c. Travel CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

d. Prepayment STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

e. Payment of Taxes by STATE STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E 2001. STATE will furnish certificates of exemption upon request by the CONTRACTOR.

f. Taxpayer ID CONTRACTOR’S federal employer ID number is: 26-3237576.

g. Purchasing Card STATE may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

3. TERM OF CONTRACT

This Contract term (Term) begins on May 27, 2022, and ends on June 30, 2023.

a. No Automatic Renewal This Contract will not automatically renew.

b. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract Term.

STATE reserves the right to execute up to four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each.

c. Extension Option STATE reserves the right to extend this Contract for an additional period of time, not to exceed twelve (12) months, beyond the current termination date of this Contract.

4. NON-RENEWAL PERIOD

Upon a non-renewal of this Contract for purposes engaging in an RFP or other process for the selection of a Broker of Record, the current CONTRACTOR shall continue to be available to the STATE without alteration during the Non-Renewal Period for the existing policy. During such time, the current CONTRACTOR shall not approach insurers or other underwriting sources on behalf of the STATE or place any policies, unless otherwise agreed upon with the STATE.

5. TERMINATION

a. Termination by Mutual Agreement This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest STATE is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

6. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

7. INDEMNIFICATION

The STATE and CONTRACTOR each agrees to assume its own liability for any and all claims of any nature including all costs, expenses and attorneys' fees which may in any manner result from or arise out of this agreement.

8. INSURANCE

a. CONTRACTOR shall secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the contact period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

3) Workers compensation coverage meeting all statutory requirements.

b. The insurance coverages listed above must meet the following additional requirements:

1) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by

2) A.M. Best Company, Inc., provided any excess policy follows form for coverage.

Less than an “A-” rating must be approved by the STATE. The policies shall be in form and terms approved by the State.

3) The CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this agreement.

4) Failure to provide insurance as required in this agreement is a material breach of contract entitling STATE to terminate this agreement immediately.

5) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

9. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

10. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

11. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties at the following addresses:

STATE CONTRACTOR

Tag Anderson Sarah Atkinson

Director of Risk Management Contracts Specialist

1600 East Century Ave., Suite 4 2701 S Columbia Rd

Bismarck, ND 58503-0649 Grand Forks, ND 58201

Notice provided under this provision does not meet the notice requirements for monetary claims against the State found at N.D.C.C. § 32-12.2-04.

12. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. CH. 44-04. The duty of STATE and CONTRACTOR http://www.legis.nd.gov/cencode/t44.html http://www.legis.nd.gov/cencode/t44.html to maintain confidentiality of information under this section continues beyond the Term of this Contract.

13. COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records STATE receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to such request.

14. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

15. UNANTICIPATED AMENDMENTS

During the course of the Contract, the CONTRACTOR may be required to perform additional work due to a legitimate unforeseen circumstance. That work will be within the general scope of the initial Contract. When additional work is required, the STATE shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit proposal for accomplishing the scope of work. CONTRACTOR will not commence additional work until all parties agree in writing.

16. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.

CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments.

CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

17. SPOLIATION – PRESERVATION OF EVIDENCE

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident.

18. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the parties. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented, or amended, in any manner, except by written agreement signed by both parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this Contract as may be amended;

b. STATE’s Solicitation Amendment(s) to Request for Proposal (“RFP”) number 110.7-22-

011 dated April 1, 2022;

c. STATE’s Request for Proposal (“RFP”) number 110.7-22-011, dated April 1, 2022;

d. CONTRACTOR’s proposal dated April 25, 2022, in response to RFP number 110.7-22-

011.

e. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

19. SEVERABILITY

If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if this Contract did not contain that term.

20. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

21. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering into this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

22. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28 26 04, pay STATE’s reasonable attorney fees and costs in connection with the lawsuit.

23. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility, and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. Ch. 34-06.1 Equal Pay for Men and Women.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the Term of this Contract all licenses and permits required by law.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

24. STATE AUDIT

All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

25. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Marsh & McLennan Agency, LLC Acting through its Risk Management Division Signature: Signature:

Printed Name: Carrie Wilson Printed Name: Tag Anderson Title: Executive Vice President Title: Director of Risk Management Date: 5/27/2022 Date: 5/27/2022

Tag Anderson (May 27, 2022 12:00 CDT) Tag Anderson

Carrie L.Wilson (May 27, 2022 13:27 CDT)

Carrie L. Wilson https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAp3EbK7I2zwode_qageqc1EDS45UQ8B-B https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAp3EbK7I2zwode_qageqc1EDS45UQ8B-B

ALL RISK INSURANCE SERVICE BROKER

Contract_FINAL Final Audit Report 2022-05-27

Created: 2022-05-26

By: Angie Scherbenske (ankscherben@nd.gov)

Status: Signed

Transaction ID: CBJCHBCAABAAp3EbK7I2zwode_qageqc1EDS45UQ8B-B

"ALL RISK INSURANCE SERVICE BROKER Contract_FINAL" History

Document created by Angie Scherbenske (ankscherben@nd.gov)

2022-05-26 - 9:23:06 PM GMT

Document emailed to Tag Anderson (tcanderson@nd.gov) for signature

2022-05-26 - 9:24:06 PM GMT

Email viewed by Tag Anderson (tcanderson@nd.gov) 2022-05-27 - 4:59:48 PM GMT- IP address: 104.47.65.254

Document e-signed by Tag Anderson (tcanderson@nd.gov) Signature Date: 2022-05-27 - 5:00:21 PM GMT - Time Source: server- IP address: 165.234.252.212

Document emailed to Carrie L.Wilson (cwilson@vaaler.com) for signature

2022-05-27 - 5:00:23 PM GMT

Email viewed by Carrie L.Wilson (cwilson@vaaler.com)

2022-05-27 - 6:22:17 PM GMT

Document e-signed by Carrie L.Wilson (cwilson@vaaler.com) Signature Date: 2022-05-27 - 6:27:14 PM GMT - Time Source: server

Agreement completed.

2022-05-27 - 6:27:14 PM GMT