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6.5 Agr TPA Workers CompCITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 4/26/99 4:00 P.M. AGENDA SECTION: ORIGINATING DEPARTMENT: APPROVED FOR NO. 6 AGENDA: CITY MANAGER BY: Jason Ga~ ITEM NO. BY: Item: Resolution 99-5458 providing for an agreement for Workers' Compensation, Third-Party Administrator (TPA) services with Berkley Administrators of Wichita, Kansas. Back_clround: Last year, Staff completed a professional service selection process for third party administration (TPA) of our self-insured workers' compensation program. The TPA processes and manages all of the City's workers' compensation claims and any medical and/or indemnity cost associated with said claims in accordance with Kansas law. Staff has worked with Berkley Administrators for one full year and is very satisfied with their performance to date. Berkley has proposed a renewal agreement for their services with an option of future renewals for up to two additional years. The first year renewal includes no fee increases and a reduced mileage rate. Recommendation: Staff recommends that the City Commission approve Resolution 99-5458, which authorizes Staff to enter into a professional service contract with Berkley Administrators of Wichita for workers' compensation, third- party administration (TPA) services. ADMINISTRATIVE SERVICES AGREEMENT BETWEEN BERKLEY ADMINISTRATORS 225 Ida Wichita, KS 67211 AND THE CITY OF SALINA, KANSAS This agreement is made in Salina, Kansas between the City of Salina, hereinafter referred to as the "City," and Berkley Administrators, hereinafter referred to as the "TPA." Whereas, the City desires to retain Berkley Administrators to administer its self insured workers' compensation program, and, Whereas the Third Party Administrator desires to provide such services upon the terms and conditions stated herein and pursuant to the provisions of the "Response to Proposal Request" with the prescribed amendments contained herein. Now, therefore, in consideration of mutual agreements contained herein, it is hereby agreed by the parties hereto as follows: ARTICLE I RESPONSIBILITIES OF THE THIRD PARTY ADMINISTRATOR Section 1.01. The TPA shall provide all the services spelled out in its "Response to Proposal Request", Section "B", I through XV, and in keeping with Exhibit E attached thereto. ARTICLE II RESPONSIBILITIES OF THE CITY Section 2.01. The City shall provide to the TPA all necessary reports, documentation, memoranda or other necessary information to assist the TPA in the carrying out of its obligations assumed under the TPA's "Response to the Proposal" and the City shall compensate the TPA for its services rendered pursuant to the terms of this agreement as set out in "Response to Proposal Request," Section "B," III A through G (1-8) and Section "B" IV, all as set out in Section "B" VII (b). However, the following sub-sections of Section "B", Proposal Requirements shall be amended to read as follows: III. a. Cost per Medical Claim - $95.00* b. Cost per Indemnity Claim - $520.00* These sub-sections shall be effective 5/1/2000. g. (1.) Loss Control - $65.00 per hour plus mileage @ IRS approved rate This sub-section shall be effective immediately. ARTICLE III TERM AND TERMINATION Section 3.01. This agreement shall be in effect from May 1, 1999 through April 30, 2000 unless the permission to self-insure is revoked by the Kansas Insurance Department. Said agreement shall be annually renewable effective May 1 through 4/31/2002 unless either party shall provide written notice of intent not to renew at least ninety (90) days prior to renewal date. Section 3.02. TPA's Exclusive Right of Early Termination. The TPA may exclusively terminate this agreement at any time for City's non-payment of fees due and owing TPA under this agreement, by giving written notice of default in payment to City. Unless City fully cures its breach of payment terms within ten (10) days from the date of the notice of default, this agreement will automatically terminate. In the event this agreement terminates by the City's failure to cure any payment default, the City remains liable to the TPA for all fees due and owing to the TPA up to and including the effective date of termination. Section 3.03. Termination by Government Action. This agreement will terminate upon the effective date of any applicable federal, state or local law, rule or regulation, which nullifies or invalidates any of the services or provisions of this agreement. Section 3.04. Procedures On Termination. In the event of termination of this agreement for any cause, all obligations of the parties to this agreement to each other will cease. The TPA will be paid, as provided in Section 2.01, to the last day of the month services are rendered. No further payment of fees from City to TPA will be required. TPA will render a final accounting of City's claims account and return any monies therein to City, along with all of City's claims and financial or other records in the possession of the TPA. TPA will not be financially responsible for and will not administer any claims existing at the time of termination. The City will return to TPA any of TPA's proprietary or confidential information in City's possession. -2- ARTICLE IV Section 4.01. Performance of TPA's Services. The TPA will perform its TPA services and conduct itself pursuant to this agreement and the proposal in such a manner as to abide by all applicable federal, state and local laws, rules and regulations. Section 4.02. Governing Law. This agreement will be governed by the laws of the State of Kansas. ARTICLE V INDEMNIFICATION AND HOLD HARMLESS Section 5.01. City's Duty of Indemnification. City will defend, hold harmless and indemnify TPA and its officers, directors, agents and employees against any and all claims, liabilities, damages, judgements or expenses, including reasonable attorney's fees, asserted against, imposed upon or incurred by TPA that arise out of the acts or omissions including negligence, of City or its employees and the discharge of its or their responsibilities under this agreement, or that arise from the administration of this agreement by TPA, other than claims involving the gross negligence, criminal conduct or fraud of TPA, its officers, directors, agents or employees. TPA agrees to notify City in writing of any threatened or actual lawsuit against TPA or City. Section 5.02. TPA's Duty of Indemnification. TPA will defend, hold harmless and indemnify City and its officers, directors, agents and employees against any and all claims, liabilities, damages, judgements or expenses, including reasonable attorneys' fees, asserted against, imposed upon or incurred by City that arise out of the acts or omissions, including negligence, of TPA or its employees and the discharge of its or their responsibilities under this agreement, or that arise from the administration of this agreement by TPA, other than claims involving the gross negligence, criminal conduct or fraud of City, its officers, directors, agents or employees. City agrees to notify TPA in writing of any threatened or actual lawsuit against City or TPA. ARTICLE VI CONFIDENTIALITY Section 6.01. Confidential Information. The parties acknowledge that certain confidential information may be transmitted or disclosed by the parties to each other in connection with the discharge of their duties and responsibilities under this agreement. For purposes of this agreement, "confidential information" will include, but not necessarily be limited to financial data, participant records, trade secrets, and all other information designated by TPA and City as confidential and communicated to the other party as such. Generic knowledge or information publicly known or ascertainable from -3- public or published information or trade sources that is generally used by the industry will not be deemed part of the confidential information referred to herein. Section $.02. Prohibition Against Disclosure. The parties will not at any time, directly or indirectly, use, copy, reveal, report, memorialize, publish, duplicate, or otherwise disclose to any third party in any way whatsoever any confidential information without the prior written consent of the other party, which consent will be granted, if at all, in the sole discretion of such party. The parties will receive, maintain and use any confidential information in the strictest of confidence and use their best efforts to keep such information strictly confidential and to prevent the unwarranted disclosure thereof. If either party breaches this prohibition against disclosure of confidential information, the non-breaching party will recover its actual damages, plus reasonable attorneys' fees and costs. ARTICLE VII MISCELLANEOUS Section 7.01, Entire Agreement. The terms and provisions contained and referenced herein constitute the entire agreement between the parties and supersede any previous communications, representations or agreements, either oral or written, with respect to the subject matter hereof. This agreement may not be amended except in a writing signed by both parties. Section 7.02. Agency. The relationship between the parties is one of principal and agent. Nothing in this agreement will be construed or deemed to create any other relationship between the parties, including one of employment or joint venture. Section 7.03. All notices, certificates or other communications provided for, authorized or required under this agreement will be sufficiently given and will be deemed given when mailed by certified or registered mail, postage prepaid, with proper address indicated below. TPA and City may, by written notice given by each to the other, designate any address or addresses to which notices, certificates or other communications to them will be sent when required as contemplated by this agreement. Until otherwise provided by the respective parties, all notices, certificates and communications to each of them will be addressed as follows: IF TO TPA: John Veith, General Manager Berkley Administrators 225 Ida Wichita, Kansas 67211 IF TO CITY: Jason Gage, Assistant City Manager City of Salina P.O. Box 736 Salina, KS 67402-0736 Section 7.04. If either City or TPA is rendered unable, wholly or in part, by force majeure or any other cause of any kind not reasonably within its control, to perform or comply with any obligations or conditions of this agreement, upon giving reasonably detailed notice setting forth such grounds to the other party, the obligations or conditions of this agreement will be suspended during the continuance of inability to perform and such party will be relieved of all liability for failure to perform the obligations of this agreement during such period. The term "force majeure" includes, but is not limited to, the following: Acts of God and the public enemy, fires, accidents, break downs, strikes, labor disputes and any laws, orders, rules, regulations, acts or restraints of any governmental body or authority, civil or military, including any state department of insurance, which detrimentally impairs the ability of the parties to this agreement to perform their obligations or any other causes beyond control of the parties hereto. Section 7.05. Regulatory Compliance. Subject to Section 2.01 of this agreement, in the event that any federal, state or local legislative or executive body enacts or promulgates legislation or regulation affecting the obligation of the parties under this agreement, the parties agree to amend this agreement in order the comply with any such legislation or regulation. Section 7.06. No Waiver of Rights. The failure of any party to insist upon the strict observation or performance of any provision of this agreement or to exercise any right or remedy will not impair or waive any such right or remedy. Section 7.07. Counterparts. This agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this agreement as of the date indicated below. BERKLEY ADMINISTRATORS Dated: By: Its: CITY OF SALINA Dated: By: Its: -5-