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HORAN Consulting Agreement
This Consulting Agreement, hereinafter referred to as “Agreement” is between Messer Construction Company, hereinafter referred to as “Client” and HORAN Associates, Inc., hereinafter referred to as “HORAN” and is effective during the Term set forth below;
WHEREAS, Client wishes to obtain the assistance of HORAN with strategic benefit planning, design, funding, administration, and communication with respect to its employee benefit programs;
WHEREAS, HORAN has superior knowledge and expertise in assisting employers with designing and servicing employee benefit plans; and
WHEREAS, the parties wish to set forth their respective expectations; Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the parties hereby agree as follows:
1. Scope of Services to be Provided by HORAN
HORAN will provide Client with consulting, actuarial, and brokerage services as outlined in Schedule A for the compensation and benefit programs listed in Schedule A.
2. Term & Termination
A. This initial term of this Agreement shall be three years, commencing on April 1, 2023 and ending March 31, 2026 ("Initial Term"). Thereafter, this Agreement will automatically renew for successive one year terms, unless terminated as set forth below.
B. This Agreement may be terminated by either party only as follows: a) Effective upon (90) days advance written notice to the other party stating that such other party is in breach of any of the provisions of this Agreement, provided such breach (if able to be cured) is not cured within 15 days after the notice is received; b) Effective upon (90) days advance written notice to the other party given with or without reason; provided such notice is given after the Initial Term; or c) By mutual written agreement of the parties.
C. Upon termination of this Agreement, HORAN shall be entitled to retain all payments remitted to HORAN under this Agreement. Termination of this Agreement shall not terminate any payment obligation of Client under this Agreement for services provided prior to such termination. HORAN may be entitled to retain client materials until after Client pays all fees due and owing under this Agreement.
3. Cost of Services
A. Client agrees to pay HORAN professional fees as outlined in Schedule B and deemed necessary by this Agreement. Professional fees are based upon time expended by specific individuals to perform work laid out in Schedule A.
B. These annual fees are payable in monthly installments and will be billed and collected by your in force medical insurance vendor.
C. HORAN’s compensation may vary based on the type of program and vendors selected by Client. In addition tothe professional fees referencedinSchedule B andin accordance with industry custom, HORAN may receive additional monetary and non-monetary compensation from insurers, insurance intermediaries, or other vendors which may be contingent upon volume, profitability or other factors. HORAN will disclose any such arrangementsasreportedbytheinsurer onForm 5500ScheduleA (ifapplicable) Toassist Client in evaluating any potential conflicts of interest and to provide pricing transparency, HORAN will disclose any amounts not otherwise reported upon Client request.
D. Additional programs and services will be provided on a project basis for an additional fee to be disclosed in writing and shall be undertaken upon mutual agreement between HORAN and Client. Such programs and services may include, but not be limited to, additional lines of insurance, special projects, outsourced wellness services, additional Request For Proposal (RFP) work, etc.
E. Client shall reimburse HORAN for all reasonable expenses incurred by HORAN in the performance of its services, including, but not limited to, travel and lodging expenses, printing, postage, and communication charges.
F. If Client in good faith disputes any amount in an invoice, Client should provide written notice of such dispute to HORAN as soon as reasonably possible, but in any event within 30 days after issuance of the invoice. Client and HORAN shall negotiate promptly and in good faith to resolve any dispute. Failure to pay an amount equal to or greater than 50% of the invoiced amount, including a disputed amount, within 30 days of the date of invoice will entitle HORAN, in addition to any other rights or remedies it may have, to suspend performance of the services under this Agreement. HORAN shall provide written notice ofsuspensiontoClient at least 5businessdayspriortosuspension,providinginsuchnotice a right to cure the suspension within the 5 business days.
4. Personnel
HORAN will assign its personnel according to the needs of Client and according to the disciplines required to complete the appointed task in a professional manner. HORAN retains the right to substitute personnel with reasonable cause. The Account Management Team consists of the following roles:
Primary Service Team: Account Executive
Account Manager
Client Specialist
Additional Key Resources: Director – Financial Analysts
Director – Individual Health and Medicare
Director
Director
5. Disclosure and Record Keeping
Compliance
Health Management
A. HORAN may engage subcontractors to assist Client in the performance of its obligations under this Agreement. Client has the right to be informed of any arrangements and/or the utilization of any intermediaries in connection with, or arising out of, or in any way related to Client's insurance and risk management program. HORAN must notify Client prior to the use of any subcontractor in connection withtheClient's insuranceandriskmanagement program.
B. HORAN will maintain accurate and current files including, but not limited to, insurance policies and correspondence with insurers or brokers in accordance with industry standard record retention practice, the Health Insurance Portability & Accountability Act of 1996 or as otherwise directed by Client.
6. Client's Responsibilities
A. Client shall make available such reasonable information as required for HORAN to conduct its services. Such data will be made available as promptly as possible. It is understood by HORAN that the time of Client’s personnel is limited, and judicious use of that time is a requirement of this Agreement.
B. Client agrees to notify HORAN as soon as possible of any proposed amendments to the plans' legal documents to the extent that the amendments would affect HORAN in the performance of its obligations under this Agreement. Client agrees to submit (or cause its agent, consultants, or vendors to submit) all information in its (or their) control reasonably necessary for HORAN to perform the services covered by this Agreement.
C. HORAN shall be entitled to rely upon any information and materials provided by Client. Client shall be solely responsible for the accuracy, adequacy, and integrity of materials and information provided to HORAN. HORAN shall not be responsible for verification of the accuracy, adequacy or integrity of any materials or information provided by Client nor shall HORAN be responsible for any errors due to reliance upon information provided by Client.
D. Client shall at all times be responsible for any tax consequences in the establishment and operation of the plans.
7. Independent Contractor
It is understood and agreed that HORAN is engaged by Client to perform services under this Agreement as an independent contractor. Nothing in this Agreement shall be construed to create an employment, partnership or agency relationship between HORAN and Client. HORAN shall use its best efforts to follow written, oral, or electronically transmitted (i.e., sent via facsimile or email) instructions from Client as to policy and procedure.
8. Limited Responsibilities
A. HORAN’s sole responsibilities shall be as described in this Agreement, including the obligations listed in Schedule A. Client acknowledges that: (i) HORAN shall have no discretionary authority or discretionary control respecting the management of any of the employee benefit plans; (ii) HORAN shall exercise no authority or control with respect to management or disposition of the assets of Client's employee benefit plans; and (iii) HORAN shall perform services pursuant to this Agreement in an administrative nonfiduciary capacity. Client further acknowledges that HORAN neither insures nor underwrites any liability for the Client under any of its plans.
B. Nothing contained, expressed or implied in this Agreement, nor any service performed by HORAN or communication by HORAN to Client in the process of performing services, is intended as, or is to be construed or understood as, legal advice, guidance or interpretation. No attorney-client relationship is established between HORAN and Client or any other personbyreasonoforarisingfromthisAgreement orunderanycircumstanceswhatsoever.
Client acknowledges that to the extent it desires or needs legal advice, guidance, or interpretation, it must secure appropriate legal counsel of its own choosing and at its own expense.
9. Proprietary Rights
A. Client and HORAN each acknowledge that in entering into this Agreement, each party has revealed and disclosed, and shall continue to reveal and disclose to the other, information which is proprietary and/or confidential information of such party. Client and HORAN agree that each party shall: (i) keep such proprietary and/or confidential information of the other party in strict confidence; (iii) not disclose confidential information of the other party to any third parties or to any of its employees not having a legitimate need to know such information; and (iii) shall not use confidential information of the other party for any purpose not directly related to and necessary for the performance of its obligations under thisAgreement(unlessrequiredtodosobyacourtofcompetentjurisdictionoraregulatory body having authority to require such disclosure).
B. Client owns and shall own all rights to Client’s data provided to or accessed by HORAN, including such Client data as processed or manipulated by HORAN in connection with the Services. HORAN products will at all times remain the exclusive, sole and absolute property of HORAN or the third parties from whom HORAN has obtained the right to use the HORAN products. All rights, title and interest in or to any copyright, trademark, servicemark, trade secret, and other proprietary right relating to any HORAN products and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by HORAN and such third parties. Client may not obscure, alter or remove any copyright, trademark, service mark or proprietary rights notices on any HORAN products, and Client will not, and will require that its vendors and subcontractors will not, copy, recompile, disassemble, reverse engineer, or make or distribute any other form of or any derivative work from, the HORAN products.
10. Limitation of Liability
A. Client shall indemnify and hold HORAN and its employees and subcontractors harmless from any and all loss, damage, liability, cost or expense (including reasonable attorneys’ fees and expenses) which HORAN may suffer or incur in connection with the defense of any action, suit or proceeding (including settlement of same) in which it is made or threatened to be made a party by reason of any acts or conduct arising out of the performance of its duties under this Agreement, except in relation to matters as to which HORAN is grossly negligent or engages in willful misconduct in the performance of its duties.
B. HORAN shall indemnify and hold Client andits employees harmless from any and all loss, damage, liability, cost or expense (including reasonable attorneys’ fees and expenses) which Client may suffer or incur in connection with the defense of any action, suit or proceeding (including settlement of same) in which it is made or threatened to be made a party by reason of any acts or conduct arising out of the performance of its duties under this Agreement, except in relation to matters as to which Client is grossly negligent or engages in willful misconduct in the performance of its duties.
C. Except for HORAN’s obligation to indemnify Client for claims asserted by third parties pursuant to subsection A above, the aggregate and cumulative liability of HORAN for damages relating to or arising from this Agreement shall in no event exceed the portion of the fees paid by Client to HORAN under this Agreement for the 12-month period prior to the date in which the event giving rise to the claim first occurred.
11. Miscellaneous Provisions
A. This, along with the attached Schedules, constitutes the entire Agreement between the parties, and any other warranties or agreements are hereby superseded. Subsequent amendments to this Agreement or the Schedules to this Agreement shall only be valid if in writing and signed by both parties.
B. This Agreement shall be construed, enforced, and governed by the laws of the State of Ohio, except to the extent federal law supersedes such law.
C. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, survivors, and assigns.
D. Nothing express or implied in this Agreement is intended to confer, and nothing shall confer, upon any person other than the parties hereto any rights, remedies, obligations or liabilities whatsoever.
E. A waiver by either party of any of the terms and conditions of this Agreement in any instance will not be deemed or construed to be a waiver of such terms or conditions for the future, or of any subsequent breach thereof.
F. If any one or more of the provisions of this Agreement shall, for any reason, be invalid or illegal, such invalidity or illegality shall not affect any other provisions of this Agreement and this Agreement shall be enforced as if such invalid or illegal provision had not been contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement (including the attached Schedules) to be executed by their duly authorized officers.
HORAN Associates, Inc.
Messer Construction Company
By: By: Title: Title:
Name: Name:
Date: Date:
Schedule A Scope Of Services
Benefit Strategy and Action Plan – Develop strategic action plan that incorporates client objectives, marketplace innovation and renewal strategies to deliver best in class benefit programs.
• Leverage experts and resources within all of HORAN to assist you, including Financial Analysis, Compliance, Data Analytics, and Health Management
• Assess needs and make comprehensive recommendations
• Provide one- and three-year action plans
Benefit Design & Marketing – Lead and deliver benefit marketing, design and execution to support the overall benefit strategy.
• Lead market analysis and bid
• Recommend vendor/carrier partnership, contract and lead pricing negotiations
• Develop and recommend plan design options and contribution strategies
• Calibrate plan via benchmarking and historical review
Marketplace Benefit Innovation – Explore, vet and recommend marketplace innovations in trends and offerings to best meet unique client needs.
• Explore alternative funding arrangements
• Identify employee transparency tools to drive consumerism
• Research offerings that drive wellness executions and behavior changes
• Test advanced data analytic tools to drive deeper actions
• Explore technology solutions for employee engagement and administrative efficiencies
• Identify and execute international benefits
• Explore clinic options
Health Data Analytics – HORANalytics® – Dedicated think tank on a mission to investigate, understand, and control health care costs.
• Leverage data warehouse and utilization analysis to determine “why” in plan costs (self-funded only)
• Develop predictive models to guide future improvements in benefits strategy
• Develop standard and customized reporting to meet business needs
• Use data and analysis to help you meet client short- and long-term financial goals to improve bottom line
Population Health Management – Provides best practice in designing and implementing wellness programs that deliver long-term results to the company.
• Provide expert wellness program design consultation
• Deliver quantitative and qualitative evaluation of wellness program
• Lead market vendor assessment and program implementation
Employee Advocacy, Education & Engagement – Provide relentless care, advocacy and support for your organization, guiding you through the complex challenges of the healthcare system.
• Develop and deliver employee education and communication programs during open enrollment and throughout the year
• Provide direct and constant access to resolve employee concerns including claims
• Design holistic approach to meet the needs of client company culture and employees
Operational and Administrative Support
Collaborative service team of knowledgeable specialists committed to the shared value of supporting your employees and providing HR assistance on a daily basis.
• Act as benefit program vendor advocate on behalf of HR
• Provide day to day problem solving around renewals, compliance, carrier issues, etc.
• Lead benefit program project management support to keep work on track
Benefit Plan Compliance – Delivers the right guidance from expert partners plus the reassurance of having the right information to put the right compliance plans in place with constant communication to keep you up-to-date and on-track.
• Research and report on key regulatory and legislative actions related to health and welfare plans
• Conduct compliance reviews
• Develop customized timelines for compliance activities
• Provide continuous education programs (seminars, email updates, toolkits, blog)
One HORAN – Lead comprehensive benefit review to include executive benefits, retirement readiness, company & business succession, individual financial planning and wealth management.
HORAN Associates, Inc. Messer Construction Company
By: By:
Title: Title:
Name: Name:
Date: Date:
