HomeMy WebLinkAboutC-7279-1 - PSA for Retiree Health Savings Plan ServicesN PROFESSIONAL SERVICES AGREEMENT
WITH THE INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT
U CORPORATION FOR RETIREE HEALTH SAVINGS PLAN SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 1st day of November, 2017 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and THE INTERNATIONAL CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION, a Delaware nonprofit corporation ("Consultant"),
whose address is 777 North Capitol Street, N.E., Suite 600, Washington, D.C, 20002-
4240, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide record keeping and administrative
services for the City's Retiree Health Savings ("RHS") Plan Services ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on November 1, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Administrative
Services Agreement attached hereto as Exhibit A and incorporated herein by reference
("Services" or "Work"). City may elect to delete certain Services within the
Administrative Services Agreement at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within ten (10) calendar days of the occurrence causing the delay to
the other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services from RHS assets, in accordance
with the requirements of the RHS Plan as set forth in the Administrative Services
Agreement attached hereto as Exhibit A. Consultant's compensation for all Services
performed in accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed One Hundred Twenty Thousand Dollars and
001100 ($120,000.00) without prior written authorization from City. No billing rate
changes shall be made during the term of this Agreement without the prior written
approval of City.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit A to this Agreement, or specifically approved in writing in
advance by City.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the scope of the Administrative Services
Agreement and which the parties did not reasonably anticipate would be necessary at
the execution of this Agreement. Compensation for any authorized Extra Work shall be
paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
ICMA-RC Page 2
times during the Agreement term. Consultant has designated Tom Axline to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Human Resources Department.
City's Human Resources Director or designee shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project Administrator
shall represent City in all matters pertaining to the Services to be rendered pursuant to
this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first-
class firms performing similar work under similar circumstances. All Services shall be
performed by qualified and experienced personnel who are not employed by City. By
delivery of Services, Consultant certifies that the Services conform to the requirements
of this Agreement, all applicable federal, state and local laws, and the highest
professional standard.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
ICMA-RC Page 3
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, pay the
cost of defending and hold harmless City, its City Council, boards and commissions,
officers, agents, volunteers and employees (collectively, the "Indemnified Parties') from
and against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorneys' fees, disbursements and court costs) of every
kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may
arise from or in any manner relate (directly or indirectly) to any breach of the terms and
conditions of this Agreement, any Work performed or Services provided under this
Agreement including, without limitation, defects in workmanship or materials or
Consultant's presence or activities conducted on the Project (including the negligent,
reckless, and/or willful acts, errors and/or omissions of Consultant, its principals,
officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone
employed directly or indirectly by any of them or for whose acts they may be liable, or
any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
ICMA-RC Page 4
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint -venture or syndicate or co -tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50%) or more of the voting
power or twenty-five percent (25%) or more of the assets of the corporation, partnership
or joint -venture.
ICMA-RC Page 5
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, and solely for this Agreement, shall become the exclusive
property of City, and City shall have the sole right to use such materials in its discretion
without further compensation to Consultant or any other party. Additionally, all material
posted in cyberspace by Consultant, its officers, employees, agents and subcontractors,
in the course of implementing this Agreement, shall become the exclusive property of
City, and City shall have the sole right to use such materials in its discretion without
further compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information for
websites and postings created solely for City to City upon prior written request.
Notwithstanding the foregoing, ICMA-RC may retain a copy of all such Documents in
accordance law or regulation.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
17.3 All written Documents shall be transmitted to City in formats compatible
with Microsoft Office and/or viewable with Adobe Acrobat.
ICMA-RC Page 6
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information or as
otherwise required by law.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
`T�)l:7xdd:7�b?
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and/or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
ICMA-RC Page 7
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided, or by other mutually agreed upon
electronic means.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Human Resources Director
Human Resources
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Legal Department
ICMA-RC
777 North Capitol Street, NE., Suite 600
Washington, D.C., 20002-4240
ICMA-RC Page 8
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of sixty (60) calendar days, or if more than sixty (60) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within sixty (60) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than sixty (60) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Services performed by Consultant shall conform to all
applicable laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator and City.
ICMA-RC Page 9
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract, This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Administrative Services Agreement or
any other attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
ICMA-RC Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
ATTEST:
Date: /I
I D
Leilani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: t2I \ 11,*
By:
Dave
City Manager
CONSULTANT: THE INTERNATIONAL
CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION,
a Delaware nonprofit corporation
Date:
Signed in Counterpart
Angela Montez
Secretary
Date:
Signed in Counterpart
By:
Erica McFarquhar
Assistant Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Administrative Services Agreement
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
ICMA-RC Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Dave Kiff
City Manager
CONSULTANT: THE INTERNATIONAL
CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION,
a Delaw a nonprofit gor oratiop
Date:
By: C d yl
Angela Morik
Secretary
Date: f �p�i 2e7//�z
By:
E ' Mc arquh r
Assistant Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Administrative Services Agreement
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
ICMA-RC Page 11
ADMINISTRATIVE SERVICES AGREEMENT
ICMA-RC Page A-1
ADMINISTRATIVE SERVICES AGREEMENT
Between
ICMA Retirement Corporation
and
City of Newport Beach
Type: VantageCare RHS
Account Number: 803380, 803377
Plan # 803380, 803377
ADMINISTRATIVE SERVICES AGREEMENT
This Agreement, made as of the day of , 20_ (herein referred to as
the "Inception Date"), between The International City Management Association Retirement
Corporation ("ICMA-RC"), a nonprofit corporation organized and existing under the laws of the
State of Delaware; and the City of Newport Beach ("Employer") a local governmental
instrumentality organized and existing under the laws of the State of California with an office at
3300 Newport Boulevard, Newport Beach, California 92663.
RECITALS
Employer acts as a public plan sponsor for a retiree health plan with responsibility to obtain
investment alternatives and services for employees participating in that plan;
Employer desires to make the VantageCare Retirement Health Savings ("RHS") Program
provided by ICMA-RC available to its employees through the Employer's integral part trust
("Trust") and the Employer's welfare benefits plan ("Plan");
ICMA-RC acts as investment adviser to VantageTrust Company, LLC ("VTC"), the Trustee of
VantageTrust II Multiple Collective Investment Funds Trust ("VantageTrust II);
VantageTrust II is a group trust established and maintained in accordance with New Hampshire
Revised Statutes Annotated section 391:1 and Internal Revenue Service Revenue Rulings 81-100
and 2011-1, which provides for the collective investment and reinvestment of assets of certain
tax-exempt, governmental pension and profit sharing plans, and retiree welfare plans, and other
eligible investors;
VTC makes a series of separate funds (the "VT II Funds") available through VantageTrust II for
the investment of plan assets as referenced in VantageTrust II's Declaration of Trust and
Disclosure Memorandum ("Disclosure Materials");
VTC is a wholly owned subsidiary of ICMA-RC and has exclusive management and investment
authority with respect to the VT II Funds;
The VT II Funds are available only through adoption of VantageTrust II; and
In addition to serving as investment adviser to VTC, ICMA-RC provides a complete offering of
services to public employers for the operation of employee retirement and retiree health savings
plans including, but not limited to, communications concerning investment alternatives, account
maintenance, account record-keeping, investment and tax reporting, form processing, benefit
disbursement and asset management.
-2-
AGREEMENTS
Acceptance of RHS Proeram
Plan # 803380, 803377
Employer agrees to make the RHS Program provided by ICMA-RC available to its employees.
The details of the RHS Program shall be as mutually agreed between the Employer and ICMA-
RC, and in general shall be as set forth in the RHS Program materials developed by ICMA-RC
and provided to Employer. The RHS Program materials are hereby incorporated by reference and
made a part of this Agreement, except that Employer and ICMA-RC may from time to time
mutually agree in writing to terms that vary from the RHS Program materials. RHS Program
materials shall include the VantageCare RHS Employer Manual, available electronically through
the EZ Link System upon adoption of the RHS Program.
The functions to be performed by ICMA-RC and its agents include:
(a) allocation in accordance with participant direction of individual accounts to investment
funds ("Funds") made available to Plan participants;
(b) maintenance of individual accounts for participants reflecting amounts contributed,
income, gain, or loss credited, and amounts disbursed as benefits;
(c) provision of periodic reports to the Employer and participants of the status of Plan
investments and individual accounts;
(d) communication to participants of information regarding their rights and elections under
the Plan;
(e) disbursement of benefits as agent for the Employer in accordance with terms of the Plan;
and
(f) performance of tax withholding and reporting in conjunction with the Employer for each
RHS account.
2. Employer Duty to Furnish Information
Employer agrees to furnish to ICMA-RC on a timely basis such information as is necessary for
ICMA-RC to carry out its responsibilities with respect to the Plan, including information needed
to allocate individual participant accounts to Funds, and information as to the benefit eligibility
and employment status of participants, and participants' ages, addresses, dependents, spouses
and other identifying information (including tax identification numbers). Employer also agrees
that it will notify ICMA-RC in a timely manner regarding changes in staff as it relates to various
roles. This is to be completed through the online EZLink employer contact options. ICMA-RC
shall be entitled to rely upon the accuracy of any information that is furnished to it by a
responsible official of the Employer or any information relating to an individual participant,
spouse or dependent that is furnished by such participant, spouse or dependent, and ICMA-RC
-3-
Plan # 803380, 803377
shall not be responsible for any error arising from its reliance on such information. ICMA-RC
will provide reports, statements and account information to the Employer through EZLink, the
online plan administrative tool.
To the extent Employer selects third -party funds that do not have fund profile information
provided to ICMA-RC through our electronic data feeds from external sources (such as
Morningstar) or third party fund providers, the Employer is responsible for providing to ICMA-
RC timely fund investment updates for disclosure to Plan participants. Such updates may be
provided to ICMA-RC through the Employer's investment consultant or other designated
representative.
Failure to provide timely fund profile update information, including the source of the
information, may result in a lack of fund information for participants, as ICMA-RC will remove
outdated fund profile information from the systems that provide fund information to Plan
participants.
3. ICMA-RC Representations and Warranties
ICMA-RC represents and warrants to Employer that:
(a) ICMA-RC is a non-profit corporation with full power and authority to enter into this
Agreement and to perform its obligations under this Agreement.
(b) ICMA-RC is an investment adviser registered as such with the Securities and Exchange
Commission under the Investment Advisers Act of 1940, as amended.
(c) ICMA-RC will handle participant information in the manner described in the Business
Associate Agreement to be executed between the Plan and ICMA-RC, a form of which is
provided as Exhibit A to this Agreement.
(d) ICMA-RC will maintain and continue to make available "Get to Know Your RHS Plan"
to participants
(e) ICMA-RC will continue to Provide an Annual Fee Disclosure similar to that which is
required by ERISA 404(a)(5) online and at the request of participants
(f) ICMA-RC will distribute QDIA notices upon being defaulted and annually to those who
do not have an investment election.
(g) ICMA-RC will provide an on-site representative at least once per month.
4. Employer Representations and Warranties
Employer represents and warrants to ICMA-RC that:
M
Plan # 803380, 803377
(a) Employer is organized in the form and manner recited in the opening paragraph of this
Agreement with full power and authority to enter into and perform its obligations under
this Agreement and to act for the Plan and participants in the manner contemplated in this
Agreement. Execution, delivery, and performance of this Agreement will not conflict
with any law, rule, regulation or contract by which the Employer is bound or to which it
is a party.
(b) Information required to be retained by the Employer shall be set forth in the RHS
Program materials developed by ICMA-RC and provided to the Employer.
(c) Employer is required to send in contributions through EZLink, the online plan
administration tool provided by ICMA-RC.
(d) Employer is responsible for determining that there are no state or local laws that would
prohibit it from establishing the RHS Program. Employer is also responsible for
determining that the investments selected for the Plan fall within state or local
requirements. ICMA-RC shall not be responsible for monitoring state or local law
applicable to retirement plans or for administering the Plan in compliance with local or
state requirements unless Employer notifies ICMA-RC of any such local or state
requirements.
(e) Employer acknowledges that the RHS Plan is a "health plan" for Health Insurance
Portability and Accountability Act ("HIPAA") purposes and therefore is subject to
HIPAA privacy rules. Employer also acknowledges that the RHS Plan is a Health
Reimbursement Arrangement, subject to applicable provisions of the Affordable Care
Act ("ACA"). An employer sponsoring the Plan is responsible for complying with the
HIPAA privacy and security rules with respect to all protected health information
created, maintained, received, or transmitted in relation to the Plan and is responsible for
complying with the ACA.
(f) Employer acknowledges that certain such services to be performed by ICMA-RC under
this Agreement may be performed by an affiliate or agent of ICMA-RC pursuant to one
or more other contractual arrangements or relationships, and that ICMA-RC reserves the
right to change vendors with which it has contracted to provide services in connection
with this Agreement without prior notice to Employer.
(g) Employer acknowledges and agrees that ICMA-RC does not assume any responsibility
with respect to the selection or retention of the Plan's investment options. Employer
shall have exclusive responsibility for the selection and retention of the Plan's investment
options, including the selection of the applicable mutual fund share class.
(h) Employer confirms that it has executed a Participation Agreement for VantageTrust II
and acknowledges that it has received the Disclosure Materials.
-5-
Plan # 803380, 803377
Participation in Certain Proceedings
The Employer hereby authorizes ICMA-RC to act as agent, to appear on its behalf, and to join
the Employer as a necessary party in all legal proceedings regarding the Plan involving the
garnishment of benefits or the transfer of benefits pursuant to a medical child support order.
Unless Employer notifies ICMA-RC otherwise, Employer authorizes ICMA-RC to determine
whether disbursement of benefits to a spouse or child pursuant to a medical child support order is
appropriate.
6. Compensation and Payment
Absent an explicit agreement to the contrary between ICMA-RC and Employer, participant fees
and expenses shall be payable from RHS assets, in accordance with the requirements of the RHS
Program as set forth below.
(a) Asset-based fees will be included in the daily unit value of each VT II Fund, and
no separate asset-based fees will be assessed.
(b) For non -VT II Funds, ICMA-RC shall collect a total of 0.40%. If a fund option
provides recordkeeping revenue, ICMA-RC will add or subtract an appropriate
fee such that the total net recordkeeping revenue is 0.40%.
(c) A $ 20 annual account administration fee to each accountholder's account will be
invoiced to the Employer.
(e) Compensation for Advisory and other Services to VT III Vantagepoint
Funds. Employer acknowledges that ICMA-RC, including certain of its wholly
owned subsidiaries, receives compensation for advisory and other services
famished to the VT III Vantagepoint Funds, which are collective funds serving as
the underlying funds to certain VT II Funds.
Contribution Remittance
Employer understands that amounts contributed to the Plan are to be remitted directly to
Vantagepoint Transfer Agents in accordance with instructions provided to Employer in the RHS
Program materials and are not to be remitted to ICMA-RC. In the event that any check or wire
transfer is incorrectly labeled or transferred, ICMA-RC will return it to Employer with proper
instructions.
8. Responsibility
(a) ICMA-RC shall not be responsible for any acts or omissions of any person with respect
to the Plan, or related Trust, other than ICMA-RC in connection with the administration
or operation of the Plan or related Trust.
1M3
Plan # 803380, 803377
(b) The Employer understands that, as a general matter, the Internal Revenue Service ("IRS")
may decline to rule on certain design features or provisions that the Employer may
request to have added to the RHS Program materials. The Employer agrees to hold
ICMA-RC harmless in connection with the addition and administration of any Plan
feature or provision requested by the Employer for which the IRS will not provide
express interpretive guidance.
9. Indemnification
Employer shall indemnify ICMA-RC against, and hold ICMA-RC harmless from, any and all
loss, damage, penalty, liability, cost, and expense, including without limitation, reasonable
attorney's fees, that may be incurred by, imposed upon, or asserted against ICMA-RC by reason
of any claim, regulatory proceeding, or litigation arising from any act done or omitted to be done
by any individual or person with respect to the Plan or related Trust, excepting only any and all
loss, damage, penalty, liability, cost or expense resulting from ICMA-RC's negligence, bad faith,
or willful misconduct.
10. Term
This Agreement shall be in effect for an initial term beginning on the Inception Date and ending
three (3) years after the Inception Date. This Agreement will be renewed automatically for each
succeeding year unless written notice of termination is provided by either party to the other no
less than 60 days before the end of such Agreement year.
11 Amendments and Adiustments
(a) This Agreement may be amended by written instrument signed by the parties.
(b) ICMA-RC may modify this agreement by providing 60 days' advance written notice to
the Employer prior to the effective date of such proposed modification. Such
modification shall become effective unless, within the 60 -day notice period, the
Employer notifies ICMA-RC in writing that it objects to such modification. The
foregoing permission shall not apply to the asset-based fees, Responsibility,
Indemnification, the Term of the Agreement, or the scope of Administrative Services,
which may only be modified by a written instrument signed by the parties
(c) No failure to exercise and no delay in exercising any right, remedy, power or privilege
hereunder shall operate as a waiver of such right, remedy, power or privilege.
12. Notices
All notices required to be delivered under this Agreement shall be delivered electronically,
personally or by registered or certified mail, postage prepaid, return receipt requested, to (i)
Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N.E., Suite 600,
Washington, D.C, 20002-4240; (ii) Employer at the office set forth in the first paragraph hereof,
-7-
Plan # 803380, 803377
or to any other address designated by the party to receive the same by written notice similarly
given.
13 Complete Aereement
This Agreement, with an executed Business Associate Agreement, shall constitute the sole
agreement between ICMA-RC and Employer relating to the object of this Agreement and
correctly sets forth the complete rights, duties and obligations of each party to the other as of its
date. Any prior agreements, promises, negotiations or representations, verbal or otherwise, not
expressly set forth in this Agreement are of no force and effect.
14. Governing Law
This agreement shall be governed by and construed in accordance with the laws of the
State/Commonwealth of California applicable to contracts made in that jurisdiction without
reference to its conflicts of laws provisions.
M
Plan # 803380, 803377
In Witness Whereof, the parties hereto have executed this Agreement as of the Inception Date
first above written.
CITY OF NEWPORT BEACH
By
Signature/Date
Uz
Name and Title (Please Print)
INTERNATIONAL CITY
MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION
Erica McFarquhar
Assistant Secretary
Please return an executed coov of the Agreement to a Delivery Address, either
(a) Electronically to PlanAdoutionServices gnicmarc.org, or
(b) In paper form to ICMA-RC
ATTN: PLAN ADOPTION SERVICES
777 North Capitol Street NE
Suite 600
Washington DC 20002-4240
Exhibit A
RHS HIPAA BUSINESS ASSOCIATE AGREEMENT FOR 803380, 803377
This Business Associate Agreement ("BA Agreement") supplements and is made part of
the Administrative Services Agreement entered into between City of Newport Beach
RHS ("Covered Entity") and ICMA-RC ("Business Associate") on and is
effective as of the effective date of the Administrative Services Agreement (the "Effective
Date").
RECITALS
Covered Entity is a group health plan that reimburses medical expenses for eligible
participants, their spouses, and their dependents. Under the Health Information Portability
and Accountability Act of 1996 ("HIPAA'), Covered Entity is required to enter into this BA
Agreement to obtain satisfactory assurances that Business Associate will appropriately
safeguard all Protected Health Information ("PHI"), as defined herein, that is created,
maintained, received, or transmitted by Business Associate on behalf of Covered Entity.
Business Associate is a record keeper providing administrative services to Covered Entity.
In general, Business Associate will not have access to information that would traditionally
be considered PHI because participant medical information used to substantiate
reimbursements is sent directly to and reviewed by a third -party claims processor. The
third -party claims processor has agreed to protect PHI that it creates, maintains, receives,
or transmits in a manner that is consistent with and as stringent as the terms agreed to by
Business Associate under this BA Agreement with respect to information that could be
considered PHI. Business Associate has access to information that might be interpreted
as PHI, including an individual's participation in the plan, reimbursement amounts, and the
timing of reimbursements.
In consideration of the mutual promises below and the exchange of information pursuant
to this BA Agreement and in order to comply with all legal requirements for the protection
of this information, Covered Entity and Business Associate agree as follows:
1. DEFINITIONS
a. The following terms used in this BA Agreement shall have the same meaning
as those terms are defined in the HIPAA Rules: Breach, Data Aggregations,
Designated Record Set, Disclosure, Health Care Operations, Minimum
Necessary, Notice of Privacy Practices, Secretary, Security Incident,
Subcontractor, Unsecured Protected Health Information, and Use.
b. "Administrative Services Agreement" refers to a separate agreement outlining
the services ICMA-RC will provide to Covered Entity and the terms and
conditions governing the provision of such services. The Administrative
Services Agreement is made between ICMA-RC and City of Newport Beach
RHS or its sponsor, acting on behalf of City of Newport Beach RHS
Plan # 803380, 803377
c. "Business Associate" shall have the same meaning as the term "business
associate" at 45 CFR 160.103, and in reference to this BA Agreement shall
mean ICMA-RC.
d. "Covered Entity" shall have the same meaning as the term "covered entity" at
45 CFR 160.103, and in reference this BA Agreement, shall mean City of
Newport Beach RHS .
e. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and
Enforcement Rules at 45 CFR Part 160 and Part 164.
f. "Privacy Rule" shall mean the Privacy Standards and Implementation
Specifications at 45 CFR 170 and 164, Subparts A and E.
g. "Protected Health Information' ("PHI") shall have the same meaning as the
term "protected health information" in 45 CFR § 160.103, limited to the
information created, received, maintained, or transmitted by Business
Associate from or on behalf of Covered Entity pursuant to this Agreement.
h. "Security Rule" shall mean the Security Standards and Implementation
Specifications at 45 CFR Parts 160 and 164, Subparts A and C.
2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
Business Associate agrees to:
a. Not Use or Disclose PHI other than as permitted or required by this BA
Agreement or as required by law.
b. Use appropriate safeguards to prevent Use or Disclosure of PHI other than as
provided for by this BA Agreement, and comply with subpart C of 45 CFR Part
164 with respect to electronic PHI in Business Associate's custody or control,
to prevent Use or Disclosure of PHI other than as provided for by this BA
Agreement.
c. Report to Covered Entity any Use or Disclosure of PHI not provided for by the
BA Agreement of which it becomes aware not more than 60 calendar days
after Business Associate discovers such non -permitted Use or Disclosure,
including Breaches of Unsecured PHI as required at 45 CFR 164.410, and any
Security Incident for which it becomes aware.
d. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable,
ensure that any Subcontractors that create, receive, maintain, or transmit PHI
on behalf of the Business Associate agree to the same restrictions, conditions,
and requirements that apply to the Business Associate with respect to such
information.
e. Make available, within 30 calendar days of the request of Covered Entity, PHI
in a Designated Record Set in Business Associate's custody or control, to
Miff
Plan # 803380, 803377
Covered Entity, or as Directed by Covered Entity, to an individual, so that
Covered Entity may meet its access obligations under 45 CFR § 164.524.
f. Make any amendment(s) to PHI in a Designated Record Set in Business
Associate's custody or control as directed in writing by the Covered Entity
pursuant to 45 CFR 164.526 no later than 60 days after receipt of such
request, so that Covered Entity may meet its amendment obligations under 45
CFR 164.526.
g. Maintain and make available the information required to provide an accounting
of Disclosures to the Covered Entity as requested by Covered Entity in writing
and as necessary to satisfy the Covered Entity's obligations under 45 CFR
164.528.
h. Make its internal practices, books, and records, available to the Secretary for
purposes of determining compliance with the HIPAA Rules.
L Not directly or indirectly receive remuneration in exchange of PHI.
j. Comply with the administrative simplification rules applicable to standard
transactions, if Business Associate conducts such transactions under the
electronic data interchange rules on behalf of Covered Entity.
k. To the extent the parties agree that Business Associate will carry out directly
one or more of Covered Entity's obligations under the Privacy Rule, the
Business Associate will comply with the requirements of the Privacy Rule that
apply to the Covered Entity in the performance of such obligations.
3. PERMITTED USES AND DISCLOSURES By BUSINESS ASSOCIATE
a. Business Associate may only Use or Disclose PHI as necessary to perform the
services set forth in the Administrative Services Agreement and as permitted
by this BA Agreement.
b. Business Associate may Use or Disclose PHI as required by law or to report
violations of law to appropriate Federal and State authorities, consistent with
45 CFR 164.5020)(i).
c. Except as otherwise limited by this BA Agreement, Business Associate agrees
to make Uses and Disclosures and requests for PHI consistent with the
Covered Entity's Minimum Necessary policies and procedures when such are
provided by the Covered Entity to Business Associate.
d. Business Associate is authorized to de -identify information in accordance with
45 CFR 164.514(a) -(c).
e. Business Associate may not Use or Disclose PHI in a manner that would
violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the
specific Uses and Disclosures set forth below.
-12-
Plan # 803380, 803377
f. Business Associate may Use PHI for the proper management and
administration of the Business Associate or to carry out the legal
responsibilities of the Business Associate.
g. Business Associate may provide Data Aggregation services relating to the
Health Care Operations of the Covered Entity.
4. OBLIGATIONS AND ACTIVITIES OF COVERED ENTITY
a. Covered Entity shall notify Business Associate of any limitations in the Notice
of Privacy Practices that Covered Entity provides to individuals pursuant to 45
CFR 164.520, to the extent that such limitation may affect Business
Associate's Use or Disclosure of PHI.
b. Covered Entity shall notify Business Associate of any changes in, or revocation
of, the permission by an individual to Use or Disclose his or her PHI, to the
extent that such changes may affect Business Associate's Use or Disclosure of
PHI.
c. Covered Entity shall notify Business Associate of any restrictions on the Use or
Disclosure of PHI that Covered Entity has agreed to or is required to abide by
under 45 CFR 164.522, to the extent that such restriction may affect Business
Associate's Use or Disclosure of PHI.
d. Covered Entity shall not request Business Associate to Use or Disclose PHI in
any manner that would not be permissible under Subpart E of 45 CFR Part 164
if done by Covered Entity, except to the extent that Business Associate will
Use or Disclose PHI for Data Aggregation or management and administration
and legal responsibilities of the Business Associate.
e. Covered Entity shall notify Business Associate of any confidential
communication requests with which the Covered Entity has agreed to in
accordance with 45 CFR 164.522, to the extent such requests would affect
Business Associate's Use or Disclosure of PHI.
5. TERM AND TERMINATION
a. This BA Agreement shall be effective as of the Effective Date, and shall
terminate upon the termination of the Administrative Services Agreement,
subject to the provisions below regarding the return or destruction of PHI.
b. Business Associate authorizes termination of this BA Agreement by Covered
Entity, if Covered Entity determines Business Associate has violated a material
term of the BA Agreement, and Business Associate has not cured the Breach
or ended the violation, following written notice to the Business Associate,
within a reasonable period of time not to exceed any reasonable cure period
defined in the Administrative Services Agreement.
EIBi
Plan # 803380, 803377
c. Upon termination of this BA Agreement for any reason, Business Associate,
with respect to PHI Received from Covered Entity, or created, maintained, or
received from Business Associate on behalf of Covered Entity, shall:
L Retain only that PHI which is necessary for Business Associate to
continue its proper management and administration or to carry out its
legal responsibilities;
ii. Return to Covered Entity or, if agreed to by Covered Entity, destroy the
remaining PHI that the Business Associate still maintains in any form;
iii. Continue to use appropriate safeguards and comply with Subpart C of
45 CFR Part 164 with respect to electronic PHI to prevent Use or
Disclosure of the PHI, other than as provided for in this Section, for as
long as Business Associate retains PHI;
iv. Not Use or Disclose the PHI retained by Business Associate other than
for the purposes for which such PHI was retained and subject to the
same conditions set out at Paragraph 3(f);
v. Return to Covered Entity or, if agreed to Covered Entity, destroy the
PHI retained by Business Associate when it is no longer needed by
Business Associate for its proper management and administration or to
carry out its legal responsibilities;
A. Notwithstanding any other provision of this BA Agreement, upon
termination, Business Associate may also transmit PHI to another
Business Associate of the Covered Entity upon the written request of
the Covered Entity.
d. The obligations of Business Associate under Section 5, Term and Termination,
shall survive the termination of this BA Agreement.
6. GENERAL PROVISIONS
a. A reference in this BA Agreement to a section in the HIPAA Rules means the
section as in effect or amended.
b. The parties agree to take such action as is necessary to amend this BA
Agreement from time to time as is necessary for compliance with the
requirements of the HIPAA Rules and any other applicable laws.
c. Any ambiguity in this BA Agreement shall be interpreted to permit compliance
with the HIPAA rules.
d. Nothing in this BA Agreement shall be construed as creating any rights or
benefits to any third parties.
e. The invalidity and unenforceability of any provision of this BA Agreement shall
not affect the enforceability of any other provision of this BA Agreement or the
Administrative Services Agreement, which shall remain in full force and effect.
-14-
Plan # 803380, 803377
All notices and communications required by this BA Agreement shall be in
writing. Such notices and communications shall be given in one of the
following forms: (i) by delivery in person, (ii) by a nationally -recognized, next -
day courier service, (iii) by first-class, registered or certified mail, postage
prepaid, or (iv) by electronic mail to the address that each party specifies in
writing.
g. This BA Agreement and the Administrative Services Agreement constitute the
entire agreement between the parties with respect to its subject matter and
constitute and supersede all prior agreements, representations, and
understandings of the parties, written or oral, with regard to the same subject
matter.
CITY OF NEWPORT BEACH RHS
M
Signature
Name and Title (Please Print)
Date
INTERNATIONAL CITY
MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION
By
EricaMcFarquhar
Assistant Secretary
Please return an executed coov of the Aoreement to a Delivery Address. either
(a) Electronically to PlanAdoptionServicespicmarc.org, or
(b) In paper form to ICMA-RC
ATTN: PLAN ADOPTION SERVICES
777 North Capitol Street NE
Suite 600
Washington DC 200024240
- 15 -
EXHIBIT B
SCHEDULE OF BILLING RATES
Participant fees and expenses shall be payable from RHS Assets, in accordance with
the requirements of the RHS Plan as set forth below:
• Asset-based fees will be included in the daily unit value of each VT II
Fund, and no separate asset-based fees will be assessed.
• An annual asset fee of 0.40% (35 basis points) will be charged on a
quarterly basis, based on the balance in the account on the last day of the
previous quarter.
• In addition to the annual asset fee, a $20.00 annual account
administration fee will be charged quarterly to each Accountholder's
account.
ICMA-RC Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
ICMA-RC Page C-1
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement
and Consultant agrees to maintain continuous coverage through a period
no less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
ICMA-RC Page C-2
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Consultant maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
ICMA-RC Page C-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 12/22/17
Dept./Contact Received From:
Date Completed: 1/02/18 Sent to: Anthony By: Alicia
Company/Person required to have certificate: ICMA Retirement Corp
Type of contract: All Others
L GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/1/17-8/1/18
EFFECTIVE/EXPIRATION DATE: 8/1/17-8/1/18
A.
INSURANCE COMPANY: Phoenix Insurance Company
A.
B.
AM BEST RATING (A-: VII or greater): A++:XV
AM BEST RATING (A-: VII or greater) A++:XV
C.
ADMITTED Company (Must be California Admitted):
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
❑ Yes N No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
1M/2M
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
N Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
UM, $2M min for Waste Haulers): What is limits provided?
include): Is it included? (completed Operations status does
E
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
N/A
COMPLETED OPERATIONS ENDORSEMENT (completed
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
❑ Yes ❑ No
G.
its officers, officials, employees and volunteers): Is it
❑ N/A
N Yes ❑ No
included?
N Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
N Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence' wording?
❑ Yes H No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
N N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A N Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/1/17-8/1/18
A.
INSURANCE COMPANY: Travelers Property Casualty Company of America
B.
AM BEST RATING (A-: VII or greater) A++:XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
N Yes ❑ No
D.
LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
lM
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
H N/A
❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A
N Yes ❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A
0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 8/1/1/17-8/1/18
A. INSURANCE COMPANY: Travelers Casualty Insurance Company of America
B. AM BEST RATING (A-: VII or greater): A++:XV
C. ADMITTED Company (Must be California Admitted): ®Yes ❑ No
D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM
H. NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
v BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
1/02/1S
Date
1M
® Yes ❑ No
® N/A ❑ Yes ❑ No
❑ N/A ® Yes ❑ No
❑ N/A ® Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval is needed for the non -admitted status of the general liability carrier. Approved by
Approved:
Risk Management Date
* Subject to the terms of the contract.