HomeMy WebLinkAboutC-5767 - PSA for Retiree Health Savings (RHS) and Medical Reimbursement Plan (MERP) AdministrationPROFESSIONAL SERVICES AGREEMENT
WITH ICMA RETIREMENT CORPORATION FOR
RETIREE HEALTH SAVINGS (RHS) AND MEDICAL REIMBURSEMENT PLAN
(MERP) ADMINISTRATION
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement") is made
yl and entered into as of this 1 st day of November, 2012 ( "Effective Date ") by and between
the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and ICMA
G 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 recordkeeping and administrative
services for the City's Retiree Health Savings ( "RHS ") and Medical
Reimbursement Plan ( "MERP ") ( "Project ").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. The principal members of Consultant for purposes of Project shall be Matt Pruitt
and Cary Scaglione.
E. 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:
lam' u
The term of this Agreement shall commence on the Effective Date, and shall
terminate on November 1, 2015 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct
and are hereby incorporated by reference into this Agreement. Consultant shall
diligently perform all the services described in the Administrative Services Agreement
hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). The
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.
3.1.1 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 reasonable notice of the occurrence causing the delay to the other
party so that all delays can be addressed.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) 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.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, 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 Services 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.
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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 Matt Pruitt, Relationship
Manager and Cary Scaglione, Managing Director of Business Development to be its
Project Managers. Consultant shall not remove or reassign the Project Managers 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 the City.
6. ADMINISTRATION
This Agreement will be administered by the Human Resources Department.
Terri L. Cassidy, Deputy City Manager/ HR Director or his /her designee, shall be the
Project Administrator and shall have the authority to act for City under this Agreement.
The Project Administrator or his /her designee 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.
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By performance 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.
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8.3 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
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 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 and employees ; and City shall indemnify, defend and hold harmless
Consultant, its boards, officers, agents 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, regulatory proceeding, fines, penalties,
liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a
Claim; collectively, "Claims "), which may arise from 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 and/or willful
acts, errors and/or omissions of Consultant, its principals, officers, agents, employees,
anyone employed directly 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 attorney's 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 the
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 Contractor 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
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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 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 and /or his/her
duly authorized designee 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.
IF VRIT
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 B, 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 cotenancy, 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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16. SUBCONTRACTING
The subcontractors may be authorized by City to perform Work on this Project.
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. The City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and the 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 (hereinafter "Documents"), prepared or caused to be prepared 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 to City upon prior written request.
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 speck 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.
18. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
19. 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.
20. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
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infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained in Consultant's Documents provided under this
Agreement.
21. 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.
22. 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 his/her 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.
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.
24. CONFLICTS OF INTEREST
241 The 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
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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 on the next business day after
transmitted via facsimile or by other mutually agreed, upon electronic means. All
notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Attn: Terri L. Cassidy, Deputy City Manager/ HR Director
Human Resources Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949- 644 -3256
Fax: 949 - 644 -3305
25.2 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Legal Department
ICMA Retirement Corporation
777 North Capitol Street, N.E., Suite 600, Washington D.C., 20002-
4240
Phone: 202 - 962 -4600
Fax: 202 - 962 -4601
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. The Consultant and the City expressly agree that in addition to any claims
filing requirements set forth in the Agreement, the Consultant shall be required to file
any claim the Consultant may have against the City in strict conformance with the Tort
Claims Act (Government Code sections 900 et seq.). .
27. TERMINATION
271 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
ICMA Retirement Corporation Page 8
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 writlen 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 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 applicable
federal laws, rules, regulations and permit requirements and be subject to approval of
the Project Administrator and City.
28.2 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.
28.3 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.
28.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.5 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.
28.6 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.
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28.7 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.
28.8 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.
28.9 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 of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
28.11 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.
I tom 9;7-,T ]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTQQRNEY� OFFICE
Date: I17/ I II(//
in
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments
document2
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:ZL'-'2✓��-,.J1 n-
Dave iff
City Manager
CONSULTANT: ICMA Retirement
Corporation, a Delaware nonprofit
corporation
Date:
1 '
By: r C L
Angela C., " ontez
Assistant Corporate Secretary
Date:
By:
Name:
Title:
[END OF SIGNATURES]
Exhibit A — Administrative Services Agreement
Exhibit B — Insurance Requirements
ICMA Retirement Corporation ' Page 11
EXHIBIT A
ADMINISTRATIVE SERVICES AGREEMENT
Type: VantageCare RHS
Account Number: 803377, 803380
This Administrative Services Agreement is made as of the Effective Date of the
Agreement (herein referred to as the "Inception Date "), between the Consultant and the
City.
RECITALS
City 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;
City desires to make the VantageCare Retirement Health Savings Plan ( "RHS
Plan" or "Plan ") provided by Consultant available to its employees;
Consultant makes available the Vantagepoint Funds, a no -load, diversified
mutual fund, for investment of public employer plan assets, including RHS Plan assets;
Consultant 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.
AGREEMENTS
Acceptance of RHS Plan
City agrees to make the RHS Plan provided
The details of the RHS Plan shall be as
Consultant, and in general shall be as set fort
Consultant and provided to City. The RHS F
reference and made a part of this Agreement,
time to time mutually agree in writing to tern
by Consultant available to its employees.
mutually agreed between the City and
h in the RHS Plan materials developed by
Ilan materials are hereby incorporated by
except that City and Consultant may from
is that vary from the RHS Plan materials.
RHS plan materials shall include the VantageCare RHS Employer Manual, available
electronically through the EZ Link System upon plan adoption.
The functions to be performed by Consultant 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
ICMA -RC Page A -1
contributed, income, gain, or loss credited, and amounts disbursed as benefits;
(c) provision of periodic reports to the City 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 City in accordance with terms of the
Plan; and
(f) performance of tax withholding and reporting in conjunction with the City for each
RHS account.
City Duty to Furnish Information
City agrees to furnish to Consultant on a timely basis such information as is necessary
for Consultant 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 participant ages,
addresses, beneficiaries and other identifying information (including tax identification
numbers). Consultant shall be entitled to rely upon the accuracy of any information that
is furnished to it by a responsible official of the City or any information relating to an
individual participant, dependent, or beneficiary that is furnished by such participant,
dependent, or beneficiary, and Consultant shall not be responsible for any error arising
from its reliance on such information. Consultant will provide account information in
reports, statements or accountings.
3. Certain Representations and Warranties
Consultant represents and warrants to City that:
(a) Consultant is a non - profit corporation with full power and authority to enter into
this Agreement and to perform its obligations under this Agreement.
(b) Consultant is an investment adviser registered as such with the Securities and
Exchange Commission under the Investment Advisers Act of 1940, as amended.
ICMA -RC Services, LLC (a wholly owned subsidiary of ICMA -RC) is registered
as a broker - dealer with the Securities and Exchange Commission (SEC) and is a
member in good standing of the National Association of Securities Dealers, Inc.
City represents and warrants to Consultant that:
(c) City 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
ICMA -RC Page A 9
Agreement will not conflict with any law, rule, regulation or contract by which the
City is bound or to which it is a party.
(d) Information required to be retained by the City shall be set forth in the RHS plan
materials developed by Consultant and provided to the City.
(e) City is responsible for determining that there are no state or local laws that would
prohibit it from establishing Consultant's VantageCare RHS program. City is also
responsible for determining that the investments selected for the RHS plan fall
within state /local requirements.
(f) City acknowledges that the RHS plan may be treated as a "health plan" for
Health Insurance Portability and Accountability Act ( "HIPAA ") purposes and
therefore may be subject to HIPAA privacy rules. If it is determined that the RHS
plan is considered a "health plan% an employer sponsoring RHS would be
responsible for complying with the HIPAA privacy and security rules regarding
protected health information of RHS plan participants.
Consultant has procedures in place to safeguard the protected health information of
RHS plan participants.
4. Participation in Certain Proceedings
The City hereby authorizes Consultant to act as agent, to appear on its behalf, and to
join the City as a necessary party in all legal proceedings involving the garnishment of
benefits or the transfer of benefits pursuant to a medical child support order. Unless
City notifies Consultant otherwise, City authorizes Consultant to determine whether
disbursement of benefits to a spouse or child pursuant to a medical child support order
is appropriate.
5. Compensation and Payment
(a) Absent an explicit agreement to the contrary between Consultant and City,
participant fees and expenses shall be payable from RHS assets, in accordance
with the requirements of the RHS Plan as set forth below.
An annual asset fee of 0.40% (40 basis points) will be charged on a
quarterly basis, based on the balance in the account on the last day of the
previous quarter and will be deducted from Plan assets.
In addition to the annual asset fee, a $25 annual per - participant account
administration fee shall be paid directly by the City. Consultant shall
invoice City on a quarterly basis. In the event the City fails to pay the
annual administration fee when due, the City directs Consultant to deduct
such fee from the Plan's forfeiture account. Should the forfeiture account
balance be insufficient to satisfy the annual administration fee, Consultant
ICMA -RC Page A -3
will continue invoicing the City for the outstanding amount and a 1.5%
monthly late fee may apply. Plans that are initially established mid -year
will be billed on a pro -rata basis.
Account administration fees are subject to change with appropriate prior
notification.
(b) Compensation for Advisory and other Services to the Vantagepoint Funds. City
acknowledges that certain wholly -owned subsidiaries of Consultant receive
compensation from the Vantagepoint Funds for advisory and other services
furnished to the Vantagepoint Funds. The fees referred to in this subsection are
disclosed in the Vantagepoint Funds Prospectus and Statement of Additional
Information.
City acknowledges and agrees that Consultant does not assume any
responsibility with respect to the selection or retention of the Plan's investment
options. City shall have exclusive responsibility for the Plan's investment
options, including the selection of the applicable mutual fund share class.
& Contributions
City understands that amounts contributed to the RHS plan are to be remitted directly to
Vantagepoint Transfer Agents in accordance with instructions provided to City in the
RHS plan materials and are not to be remitted to Consultant. In the event that any
check or wire transfer is incorrectly labeled or transferred, Consultant will return it to City
with proper instructions.
7. Responsibility
(a) Consultant shall not be responsible for any acts or omissions of any person other
than Consultant in connection with the administration or operation of the Plan.
(b) The City understands that, as a general matter, the Internal Revenue Service
( "IRS ") may decline to rule on certain design features or provisions that the City
may request to have added to the RHS plan materials. The City agrees to hold
Consultant harmless in connection with the addition and administration of any
RHS plan feature or provision requested by the City for which the IRS will not
provide express interpretive guidance.
8. Amendments and Adjustments
(a) This Agreement may not be amended except by written instrument signed by the
parties.
(b) The parties agree that an adjustment to compensation or administrative and
operational services under this Agreement may only be implemented by
ICMA -RC Page A -4
Consultant through a proposal to the City via correspondence or the City Bulletin.
The City 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 before the effective date, the City notifies Consultant 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.
ICMA -RC Page A -5
EXHIBIT B
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 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.
1.2 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.
1.3 Coverage Reguirements.
1.3.1 Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance, statutory limits, and City'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.
1.3.1.1 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.
1.3.2 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, products - completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a contract.
1.3.3 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 the 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 Retirement Corporation Page B-1
1.3.4 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 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.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 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.
1.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, 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.
1.4.3 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.
1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
1.5 A_ dditional Agreements Between the Parties. The parties hereby agree to
the following:
1.5.1 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.
1.5.2 City's Right to Revise Requirements. The City reserves the right at
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
ICMA Retirement Corporation Page B -2
such change. If such change results in substantial additional cost to the Consultant, the
City and Consultant may renegotiate Consultant's compensation.
1.5.3 Enforcement of Agreement Provisions. Consultant acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Consultant
of non - compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
1.5.4 Requirements not Limiting. Requirements of speck 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.
1.5.5 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.
1.5.6 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.
1.5.7 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.
1.5.8 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 Retirement Corporation Page B -3