HomeMy WebLinkAboutC-7279-2 - PSA for Retirement Health Services Plan AgreementN
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PROFESSIONAL SERVICES AGREEMENT
I WITH THE INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT
CORPORATION FOR
RETIREMENT HEALTH SERVICES PLAN AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 6th day of April, 2021 ("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 nonprofit Delaware corporation ("Consultant"), whose address is 777
North Capital Street NE, Suite 600, Washington DC 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 administration
services to City's employer-sponsored Retirement Health Savings Plan ("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.-
TERM
ollows:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate three (3) years after the Effective Date. This Agreement shall be renewed
automatically for two (2) one-year terms, unless written Notice of Termination is provided
by either party to the other no less than sixty (60) days before the end of such term.
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 Zero Dollars and 00/100 ($0.00), 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 A.
ICMA-RC Page 2
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
times during the Agreement term. Consultant has designated Steve Montano 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 Finance Department. City's Deputy
Finance 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
ICMA-RC Page 3
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
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.
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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 performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
ICMA-RC Page 4
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.
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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
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ICMA-RC Page 5
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.
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.
ICMA-RC Page 6
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.
20. RECORDS
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.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
ICMA-RC Page 7
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") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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: Deputy Finance Director
Finance Director
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
Attn: Plan Adoption Services
777 North Capital Street NE Suite 600
Washington DC 20002-4240
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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
ICMA-RC Page 8
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.
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
ICMA-RC Page 9
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 ATTONEY'S OFFICE
Date: 1� Z o o
By: J' — fir..
Aaron C. Harp
City Attorney
ATTEST:
Date:
: 4�w-A I it
-.t •
City Clerk
Attachments
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: APR 0 2 2021
By:
Grac . Leung
Cit anager
CONSULTANT: THE INTERNATIONAL
CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION, a
nonprofit Delaware corporation
Date:
By. -moi
Thomas McAndrews
Managing Vice President
Date: 1/4/G1 _
!i rquhar
istant Secretary
[END OF SIGNATURES]
Exhibit A - Administrative Services Agreement
Exhibit C - Insurance Requirements
ICMA-RC Page 11
EXHIBIT A
ADMINISTRATIVE SERVICES
AGREEMENT
ICMA-RC Page A-1
ADMINISTRATIVE SER'% ICES AGREEMENT
Behveen
ICNIA Retirement Corporation
and
City of Newport Beach
Type: VantageCare RHS
:account Number: 803380, 803377
Plan ## 803380. 803377
ADTXM.-ISTRATIVE SERVICES AGREEMENT
This Agreement, made as of this day, (please enter date) (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 Ne -A port Beach ("Employer") a local governmental
instrumentality organized and existing under the laws of the State of California with an office at
100 Civic Center Drive, Newport Beach, California 92660.
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 ICIviA-RC available to its employees through the Employer's integral part trust ("Trust") and
the Employer's welfare benefits plan ("Plan"),
ICMA-RC, or its wholly owned subsidiary, acts as investment adviser to VantageTrlist 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 Arumotated 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;
\.-7C, a wholly owned subsidiary of ICINIA-RC, makes a series of separate fiends (the "VT II
Funds") available through VantageTrust II for the investment of plan assets as referenced in
VantageTrust H's Declaration of Trust and Disclosure Memorandum ("Disclosure Materials");
The VT II Funds are available only through adoption of VantageTrust II; and
IC_NLA,-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, and benefit disbursement.
-2-
AGREE_IIENTS
Acceptance of RHS Program
Plan # 803380, 803377
Employer agrees to make the RHS Program provided by ICMA-RC available to its employees.
The details of the RHS Programa 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 ICNLA-RC may from time to time
mutually agree in writing to terns that vary from the RHS Program materials. RHS Program
materials shall include the VcrntageCare RHSEniplover McInual, available electronically through
the EZ Link System upon adoption of the RHS Program.
Appointment of ICIyLLI-.-RC
Employer hereby appoints ICNIA-RC as the exclusive Recordkeeper for the RHS Plan to
perform all non -discretionary fimetions necessary for the administration of the RHS Plan with
respect to assets in the RHS Plan transferred to its administration.
The fimetions to be performed by ICNLA-RC and its agents include:
(a) allocation in accordance with participant direction of individual accounts to investment
fiends ("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 thein rights and elections under the
Plan,
(e) disbursement of benefits as agent for the Employer m accordance with terms of the Plan,
and
(f) performance of tax withholding and reporting in conjunction with the Employer for each
RHS account.
3. Employer Duty to Furnish Information
Employer agrees to fiunish to ICNLA-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
-3-
Plan # 803380, 803377
other identifying niformation (Including tax identification members). 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 oulme 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 firrnished by such participant, spouse or dependent, and ICNIA-RC shall not be responsible for
any error arising fi-om its reliance on such information. ICIVIA-RC will provide reports, statements
and account Information to the Employer through EZLink, the online plan administrative tool.
To the extent Employer selects thud -party fiends that do not have fiend profile information
provided to ICMA-RC through our electronic data feeds from external sources (such as
Morningstar) or third party fiend providers, the Employer is responsible for providing to ICNIA-
RC timely fled 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.
4. ICIv1A-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) ICIvLN-RC is an investment adviser registered as such with the Securities and Exchange
Commission under the Investment Advisers Act of 1940, as amended.
(c) IC1vL-,'-.-RC will handle participant information In the mamier described in the Business
Associate Agreement to be executed between the Plan and IC1vLN-RC, a form of which is
provided as Exhibit A to this Agreement.
d) ICNLA,-RC will maintain and continue to make available "Get to Know Your RHS Plan"
to participants
(e) ICN1A-RC will continue to Provide an Arunual Fee Disclosure similar to that which is required
by ERISA 404(a)(5) online and at the request of participants
(f) ICN1A-RC will distribute QDIA notices upon being defaulted and annually to those who
do not have an Investment election.
(g) ICI✓IA-RC will provide an on-site representative at least once per month.
(h) ICNIA-RC agrees to the Service Guarantees in Exhibit B.
Employer Representations and Warranties
M
Plan # 803380. 803377
Employer represents and warrants to ICNL4-RC that:
(a) Employer is orgaiuzed in the form and manner recited un the opening paragraph of this
Agreement with Rill 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 ICNIA-RC.
(d) Employer is responsible for deternuning 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. ICNIA-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 ICIVIA-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, maimtamed.received,
or transmittedin 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 ICNIA-RC pursuant to one or
more other contractual arrangements or relationships, and that ICNIA-RC reserves the right
to change vendors with which it has contracted to provide services iu 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 VantageTrrust II and
acknowledges that it has received the Disclosure Materials.
-5-
Plan ++ 803380, 803377
6. Participation in Certain Proceedirmgs
The Employer hereby authorizes ICNIA-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 ICIVIA-RC to determine whether
disbursement of benefits to a spouse or child pursuant to a medical child support order is
appropriate.
Compensation and Payment
Absent an explicit agreement to the contrary between ICZVLA-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. Participant Fees. Plan participant accounts shall be assessed an asset-based fee to
cover the costs of record-keeping and other services provided by ICIvIA-RC, and
other costs associated with the Plans as directed by the Employer. The Employer
shall work with ICTVIA-RC to determine the appropriate amount of the gross asset-
based fee to be charged to participant accounts, which may be increased or
decreased from time to time at the direction of the Employer. At the inception of
this Agreement the participant fee shall be 0.135%.
b. Revenue Requirement. ICMA-RC shall receive total annual aggregate revenue of
0.135% of Plan assets under ICNIA-RC's administration for providing
recordkeepung and other services to the Plans. Such revenue shall be deducted by
ICMA-RC from amounts collected through the application of the asset-based fee
described in section 8(a) prior to allocation of any participant level asset-based fees
to the Administrative Allowance Account described is section 8(c) below.
Administrative Allowance Account. Amounts collected through the application
of the asset-based fee described in section 8(a) above u1 excess of the Revenue
Requirement specified in subsection 8(b) above, if any, shall be held in an
Administrative Allowance Account (that is maintained as a Plan asset by ICIvLN-
RC). Employer understands that the Plan administrative allowance is to be used
only to pay for reasonable plan admnnistrative expenses of the Plan or allocated to
Plan participants at the instruction of the Employer. Employer may determine that
fiends from the Administrative Allowance Account should directly pay the invoices
of consultants to the Plan. If Employer makes such a determination, Employer will
direct ICNLA.-RC un a separate letter to send Administrative Allowance monies to
such consultants.
The payment will be made only from the above -referenced Plan's Administrative
Allowance Account. Should the amount in the Plan's Admuiistrative Allowance
Plan # 803380. 803377
Account be insufficient to cover the fee due. ICMA-RC will seek written instruction
from the Plan or Plan Sponsor as to the amount to pay the consultant. For
processing purposes, the consultant may submit an invoice to IClviLA,-RC for
payment of the fee: provided, however, that ICMA-RC will pay the consultant only
• as set forth above. The consultant shall have no authority to calculate the fee
amount, change the frequency of the payment, or change the payee.
Employer acknowledges and agrees that, for the purposes of these payments,
ICMA-RC is acting as the agent of the Plan. Employer also acknowledges that in
following its direction ICMA-RC is not exercising any discretion regarding
whether the above fee payment is an appropriate or reasonable use of Plan fiends.
Accordingly, Employer agrees to hold ICNU-RC harmless fiom adverse
consequences that may result from making such payments.
d. Revenue Received from Investment Options. Neither ICMA-RC nor the
Employer shall retain recordkeeping revenue received directly from investment
options made available tender the Plan. ICNIA-RC shall be compensated from fees
collected from participant accounts through the application of the asset-based fee
described in section 8(a) above. In the event that any Plan investment options do
generate revenue from plan investments. ICIVIA-RC shall, as directed by the
Employer, credit any and all revenue back to those participant accounts invested in
the option in question.
The compensation in this Section 7 is also based on the Vantagepoint PLUS Fund being
offered as the sole stable value fiend.
(b) Compensation for Advisory and other Services to VT III Vantagepoint
Funds and Payments from Third -Party Mutual Funds. Employer
acknowledges that ICNIA-RC, including certain of its wholly owned subsidiaries,
receives compensation for advisory and other set -vices fits niched to the VT III
Vantagepoint Funds. which are collective fiends serving as the underlying fiends to
certain VT II Funds. In addition, to the extent that thud party mutual Rinds are
included in the investment line-up for the RHS Plan, ICIVIA-RC receives
administrative fees from its thud party mutual Rind settlement and clearing agent
for providing administrative and other services based on assets invested in third -
party mutual Rinds, such administrative fees come fiom payments made by third -
party mutual fiends to the settlement and clearing agent.
8. 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 ICIVZA,-RC. fit the event that any check or wire
transfer is incorrectly labeled or transferred, ICIVLa-RC will return it to Employer with proper
instructions.
-7-
Plan # 803380, 803377
9. Responsibility
(a) ICMA-RC shall not be responsible for any acts or omissions of any person with respect to
the Plan, or its related Trust, other than ICNIA-RC in connection with the administration
or operation of the Plan or its related Trust.
(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 IC1�IA-RC
harmless in connection with the addition and achninistration of any Plan feature or
provision requested by the Employer for which the IRS will not provide express
interpretive guidance.
10. Term
This Agreement shall be in effect for an initial term beg' Ing on the Inception Date and ending
three (3) years after the Inception Date. This Agreement will be renewed automatically for two
(2) one-year term agreements 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. The Employer understands
and acknowledges that, in the event the Employer tenuinates this Agreement (or replaces the
Vantagepoint PLUS Fund, offered by VantageTnrst II, as an investment option in its investment
line-up), ICIVIA-RC retains Rill discretion to release Plan assets invested jn the Vantagepoiut PLUS
Fund in an orderly manner over a period of tip to 12 months from the date ICIVLk-RC receives
written notification fi-om the Employer that it has made a final and binding selection of a
replacement for ICNIA-RC as administrator of the Plan (or a replacement investment option for
the Vantagepoit PLUS Fund).
11. Amendments and Adjustments
(a) This Agreement may be amended by written instrument signed by the parties.
(b) The parties agree that only an adjustment to compensation or aclrninistrative and
operational services Linder this Agreement may be implemented by ICIVLL'k-RC through a
proposal to the Employer via correspondence or the Employer Bulletin. The Employer
will be given at least 60 days to review the proposal before the effective date of the
adjustment. Such adjustment shall become effective unless, within the 60 -day period. the
Employer notifies ICMA-RC in writing that it does not accept such adjustment, in which
event the parties will negotiate with respect to the adjustment.
(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
Plan + 803380, 803377
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, ICINIA Retirement Corporation, 777 North Capitol Street, N.E., Suite 600,
Washington, D.C, 20002-4240, clientcontracts_lema-rc@*cmare.org, (ii) Employer at the office
set forth in the first paragraph hereof, or to any other address designated by the party to receive
the same by written notice similarly given.
13. Complete AQ:eement
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. Govenuiiu2 Lav
This agreement shall be governed by and construed in accordance with the laws of the State of
California, applicable to contracts made in that jurisdiction without reference to its conflicts of
laws provisions.
Plan +r 803380, 803377
In Witness Whereof. the parties hereto have executed this Agreement as of the Inception Date fust
above written.
CITY OF NENVPORT BEACH
Signature I Date
Name and Title (Please Print)
INTERNATIONAL CITY TNIANAGEMEN T
ASSOCIATION RETIRE- LENT CORPORATION
B J, /
Y
Erica l\/IcFargiihai
Assistant Secfetary
By
Thomas McAndrews
Managmi g Vice President
Please return an executed coax of the Agreement to a Delivery Address. either
(a) Via DocuSign
(b) Electronically to PlanAdoptionServices(cicmarc.org, or
(c) 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 PLAN NUMBERS 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 on
behalf of plan numbers 803380, 803377 ("Covered Entity" or "City of Newport Beach
RHS") and ICMA-RC ("Business Associate") on (please enter date)
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
Plan 4 803380, 803377
is made between ICMA-RC and City of Newport Beach RHS or its sponsor,
acting on behalf of City of Newport Beach RHS.
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.
-12-
Plan 4 803380, 803377
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 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.
i. 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
GFR 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.
-13-
Plan 4' 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.
-14-
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:
I. 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;
vi. 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.
-15-
Plan -� 803380, 803377
f. 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 parry 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
Signature / Date
Name and Title (Please Print)
INTERNATIONAL CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION
By
Erica McFarquhar
Assistant Secretary
��- 7 OK
By I JJ
Thomas McAndrews
Managing Vice President
Please return an executed copv of the Aareement to a Delivery Address. either
(a) Via DocuSign
(b) Electronically to PlanAdoptionServiceseicmarc.ora, or
(c) In paper form to ICMA-RC
ATTN: PLAN ADOPTION SERVICES
777 North Capitol Street NE
Suite 600
Washington DC 20002-4240
-16-
Plan # 803380, 803377
Exhibit B
Service Guarantees
ICMA-RC Service Guarantees
Standard
Guarantee
Quarterly Participant Statement
99% of quarterly statements will be
$2,500 per year in which the
Delivery
made available electronically within 12
standard is not met due to
business days of the end of the
circumstances under ICMA-RC
quarter.
control.
Corporate Contact center Phone
80% of calls answered within 60
$2,500 per year in which
Response time
seconds.
standard is not met due to
circumstances under ICMA-
RC control.
Number of On -Site Group
Mutually agreed-upon number of
$2,500 per year in which target
Seminars
on-site seminars.
number of seminars is not met.
Individual Meetings
Mutually agreed-upon availability for
$2,500 per year in which
on-site individual consultations.
target commitment of time for
individual consultations is not
met.
Reimbursement Processing
95% of all claims received in good
$250 for each quarter in which
order will be processed within 10
this standard is not met due to
business days of receipt.
ICMA-RC error.
-17-
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 City Council, boards
and commissions, officers, agents, volunteers and employees.
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 City Council, boards and commissions, officers, agents, volunteers
and employees 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, its City Council, boards and commissions, officers, agents, volunteers
and employees 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. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
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ICMA-RC Page C-2
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Aqreement 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.
E. 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.
F. 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-
ICMA-RC Page C-3
insurance will not be considered to comply with these requirements unless
approved by City.
G. 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.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, 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.
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-4
Burns, Marlene
From: Customer Service <customerservice@ebix.com>
Sent: Friday, June 18, 2021 5:37 PM
To: Burns, Marlene; Insurance
Cc: sagar@ebix.com
Subject: Compliance Alert -Vendor Number FV00000519
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate of
insurance requirements. FV00000519 International City Management Association Retireme
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.