FE_SC096_Excess+Liability+Insurance+Broker.pdf

EXCESS LIABILITY INSURANCE BROKER CONTRACT

STATE CONTRACT #296

Vaaler Insurance, Inc./Office of Management and Budget, Risk Management Division Page 1 of 7

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 Vaaler Insurance Inc.

having its principal place of business at 2701 S. Columbia Rd, Grand Forks, ND 58201

(CONTRACTOR).

1. SCOPE OF WORK

Assist the Risk Management Division in fulfilling its role in evaluating the availability, options, alternatives, cost, and placement of excess coverage and related coverage for risks that pose undue financial risk to the State, including cyber liability and security insurance.

CONTRACTOR, in exchange for the compensation paid by the STATE under this contract, agrees to provide the following services:

a. Act as a broker for the STATE.

b. Provide excess and cyber and security liability insurance quotes addressing identified exposures by June 25, 2021.

c. Make recommendations regarding excess insurance companies, coverage, retention, limits and terms and conditions for exposures facing all areas of State operations.

d. Provide excess insurance expertise and evaluation of market options.

e. Evaluate, assess, and identify unique exposures that pose a risk of excess loss to the

State.

f. Obtain the approval of the State Risk Management Division or appropriate State agency prior to placing insurance coverage.

g. Assist the STATE in marketing and placement of renewals in the most efficient and cost-effective manner.

h. Assist STATE with reporting and monitoring of claims and assist in advocating for the

STATE on any disputed or problem claims.

i. Provide answers to the STATE and obtain clarification from insurers regarding coverage or claims questions.

j. Provide expert opinion to the Risk Management Division on the need for, marketing and placement of special lines of insurance impacting the Risk Man insurance program.

k. Evaluate excess insurance market options and conditions on a regular basis or as requested.

l. Attend meetings, as needed or requested, with OMB and other representatives of the STATE and state agencies.

m. Provide the STATE with a formal debriefing upon request at the completion of the contract.

The scope of the debriefing will be limited to the work performed by the CONTRACTOR.

n. Provide assistance in the form of written reports or claims summaries as is customarily expected from a professional Insurance Broker.

2. COMPENSATION

a. Contractual Amount

CONTRACTOR will not receive fees or other compensation from the STATE for in this contrac

Vaaler Insurance, Inc./Office of Management and Budget, Risk Management Division Page 2 of 7 or other types of disclosed payments, including prospective or potential payments from the insurance company(s) as a result insurance placement on behalf of the STATE. From the effective date of the contract until termination or non-renewal, the commissions or payments received by the CONTRACTOR must be equal to or lower than any commissions received by CONTRACTOR from other customers for similar services.

b. Travel

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

c. 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.

d. Taxpayer ID

45-0274771.

e. 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 June 1, 2021 or its Effective Date and ends on May 30, 2022.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Extension Option

STATE reserves the right to extend this Contract for an additional period, not to exceed 12 months, beyond the current termination date of this Contract.

c. 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 12 months each.

4. TIME IS OF THE ESSENCE

CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the parties.

5. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both parties executed in writing.

Vaaler Insurance, Inc./Office of Management and Budget, Risk Management Division Page 3 of 7

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 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.

Vaaler Insurance, Inc./Office of Management and Budget, Risk Management Division Page 4 of 7

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

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 $250,000 per person and $1,000,000 per occurrence.

2) Professional errors and omissions with minimum limits of $1,000,000 per occurrence 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) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

4) Workers compensation coverage meeting all statutory requirements.

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

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

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

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

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:

Vaaler Insurance, Inc./Office of Management and Budget, Risk Management Division Page 5 of 7

STATE CONTRACTOR

Tag Anderson Bruce D. Vaaler

Risk Management Director CEO/President

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

Bismarck, ND 58503 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 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 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 responsibilities under this Contract, except to the extent specified in this Contract.

15. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without 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.

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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.

16. 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.

17. 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. 110.7-20-

108 dated November 24, 2020.

c. 110.7-20-108, dated November 18, 2020.

d. December 8, 2020 in response to RFP number 110.7-

20-108.

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.

18. 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.

19. 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.

20. 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.

21. 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

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22. 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 entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

23. 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 of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE reasonable notice to CONTRACTOR prior to conducting examination.

24. 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

Vaaler Insurance Inc.

Acting through its Office of Management and Budget, Risk Management Division

BY: BY:

Bruce D. Vaaler Tag Anderson CEO/President Director of Risk Management

Date: Date: