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U MASTER CONSULTING SERVICES AGREEMENT
This MASTER CONSULTING SERVICES AGREEMENT ("Master Agreement") is
entered into effective as of the 19�- day of Oc*ob�r 2015 ("Effective Date") by
and among CITY OF NEWPORT BEACH, CALIFORNIA (hereinafter "Client") and
AMERICAN FIDELITY ADMINISTRATIVE SERVICES, LLC (hereinafter "Consultant").
WHEREAS, the parties desire for Consultant to provide services to Client with respect to
certain employee benefit plans sponsored by Client ("Client's Plans") and under the terms set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Scope. This Master Agreement is comprised of the general terms and conditions set
forth herein (the "Terms and Conditions") and each properly executed Scope of Work ("SOW")
to be attached hereto and incorporated by reference herein. Consultant shall provide certain
services to Client as specified in a SOW (the "Services"). Each time Client engages Consultant to
perform services, a new SOW shall be prepared specifying the scope of the services specific to
that engagement. Consultant shall have the right, at all times, to perform similar services for other
person(s) or business entities.
2. Term. The term of this Master Agreement shall commence on the Effective Date and
shall continue in full force and effect for one year.
3. Fees and Records. In consideration of Services performed, Client agrees to pay
Consultant in accordance with each SOW. Unless otherwise expressly set forth in any given SOW,
Client shall be responsible for actual out-of-pocket expenses (e.g., overnight charges, extensive
reproduction costs) and travel costs incurred by Consultant in connection with its provision of the
Services. Client shall also be responsible for all sales taxes and other similar tax obligations in
connection with its receipt of the Services from Consultant. Such expenses, taxes, and other
obligations shall be owed above and beyond any professional fees. If Client is exempt from paying
sates tax, a tax exemption certificate shall be provided to Consultant. Until such certificate is
received, Consultant will charge applicable sales tax on the invoices.
4. Invoicing and Payment. Consultant will deliver an invoice to Client for fees and
expenses each month unless otherwise specified in the SOW. Payment of the amounts indicated
on the invoice is due upon receipt of the invoice. Payment will be made within per annum thirty
(30) days of receipt of an invoice ("Due Date"). Interest in the amount of 5% per annum, or the
maximum amount allowable under the law, will be charged on all amounts due and owing after
the Due Date.
5. Client Resources and Data. Li addition to any responsibilities imposed on Client as
specifically set forth in a SOW, Client agrees that Consultant shall have ready access to Client's
staff and resources as necessary to perform the Services pursuant to a SOW. In addition, Client
will provide to Consultant all data necessary to complete the Services specified in a SOW, in a
format agreed to by both parties. In the performance of the Services, Consultant may rely upon,
and will have no obligation to independently verify the accuracy, completeness, or authenticity of,
any written instructions or information provided to Consultant by the Client or its designated
representatives and reasonably believed by Consultant to be genuine and authorized by the Client.
In addition, if Consultant receives inaccurate, incomplete, or improperly formatted information,
any additional time and expense required to correct the information will be billed to Client as
additional Services.
6. Relationship of Parties.
a. Consultant is, and shall at all times remain, an independent contractor with
respect to the Client. Consultant and each of Consultant's employees, principals, and
subcontractors shall not be deemed for any purpose to be Client's employees; and they
shall not be entitled to any claims, rights, benefits and privileges to which an employee of
Client or any of its respective affiliates may be entitled under any retirement, pension,
insurance, medical or other plans which may now be in effect or which may hereafter be
adopted. Client is not responsible to any governing body or to Consultant for paying or
withholding payroll taxes and other employee expenses related to payments made to
Consultant. Notwithstanding anything to the contrary, this Master Agreement does not, and
shall not be deemed to, constitute a partnership or joint venture between the parties and
neither party nor any of their respective directors, officers, employees or agents shall, by
virtue of the performance of then obligations tinder this Master Agreement, be deemed to
be an agent or employee of the other. No party has the authority to bind another party
except to the extent approved in writing by the party to be bound.
b, Notwithstanding any provision in this Master Agreement to the contrary,
the Client agrees and acknowledges that (i) this Master Agreement, any SOW executed
pursuant to this Master Agreement or the performance by the Consultant hereunder are not
intended in any way to impose on Consultant or any of its affiliates a fiduciary status under
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any
other applicable law; and (ii) this Master Agreement does not provide Consultant, and the
Client will not cause or permit Consultant to assume, without prior written consent of
Consultant, any (A) discretionary authority or discretionary control respecting
management of any "employee benefit plan" within the meaning of Section 3(3) of ERISA
(an "ERISA Plan"), (13) authority or control respecting management or disposition of the
assets of any ERISA Plan, or (C) discretionary authority or discretionary responsibility in
the administ'ation of any ERISA Plan.
C. The Client acluiowledges and agrees that the Services do not and shall not
constitute tine practice of law, accountancy or any other profession by the Consultant and
that the Consultant has recornmended to Client that all work performed by Consultant be
reviewed by Client's independent tax and legal counsel. Ali compliance assistance work
performed by Consultant will relate to compliance with federal laws imposing obligations
with respect to Client's Plans. The pasties agree that Consultant will not consider any State
Laws or regulations unless specifically set Cortin in a SOW. Finally, any Federal tax
information provided in writing pursuant to this Master Agreement is not intended or
written, and cannot be used, for the purpose of (i) avoiding penalties imposed by the
Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party
any transaction or matter that is contained in our written work products. Consultant shall
rely upon information provided by Client and will not have a duty to verify accuracy of
such information.
7. Intellectual Property.
a. Any patented or otherwise legally protectable invention, process, discovery,
technique, know -how, proprietary method or copyrightable expression (1) belonging to
and used by Consultant or its contractors for the benefit of Client in connection with this
Agreement, or (2) made or developed by Consultant during the course of providing the
Services hereunder, shall remain and be the property of Consultant. However, Consultant
shall not receive any royalty related to the use of such invention in providing the Services
to Client.
b. All documents produced by Consultant in any form, including the electronic
versions thereof ("Deliverables'), are instruments of service of Consultant. The copyright
and other intellectual property rights in all documents and expressions (including without
limitation any memoranda, spreadsheets, drawings, maps or computer programs) prepared
or compiled by Consultant hereunder shall remain vested in Consultant; however, Client
shall have a free, non-transferable license to use such of those documents as are supplied
hereunder for those purposes specified in and subject to the terms of the SOW and for
Client's internal use only. Without limiting the foregoing, Client shall not provide such
Deliverables to any tbird person without the written consent of the Consultant. Any
liability arising out of use of Deliverables by Client for purposes other than for w1dolt they
were created or out of use by any third party shall be the responsibility of Client, who shall
indemnify Consultant against all claims, costs, damages, expenses or losses arising out of
such unauthorized use.
a, Confidential Information. In connection with the Services, each party will have
access to confidential information including, but not limited to trade secrets, data, business
plans, customer information, marketing information, and financial matters which are made
available by the other party or the other party's clients (collectively, "Confidential
fnformation"). Each party shall protect Confidential Information in the same manner as it
protects its own Confidential Information of like kind, but in no event less than a reasonable
degree of care. The receiving party will only use the Confidential Information to exercise
its rights or carry out its obligations under this Master Agreement. The receiving party will
restrict access to Confidential Information to only its employees or consultants who require
such access in the course of their assigned duties and responsibilities and who have been
informed of the receiving party's obligations of confidence and have agreed in writing to
preserve the confidentiality of such information under terms and conditions no less
restrictive than those set forth herein. In the event that any Confidential Information is
required to be disclosed pursuant to any law, code or regulation, if permitted by law, the
receiving party will give the disclosing party immediate notice thereof and will use its
efforts to sack or to cooperate with the disclosing party in seeking aprowetive order with
respect tbereto. Upon termination ofthis Master Agreement, Confidential Information shall
be returrecl to the disclosing party or certified as destroyed at the disclosing party's option.
9. Performance of Services.
a. Consultant shall, subject to the provisions of this Master Agreement,
including without limitation the obligations of the Client to provide accurate information
and to pay the Consultant's compensation hereunder, and upon timely receipt of all data,
information, approvals, site access or other information or assistance to be provided by
Client, carry out and complete the Services specifically agreed upon in this Master
Agreement or in a. SOW
b. Consultant has the full power and authority to enter into and perform this
Master Agreement.
C. Consultant agrees that the Services will be performed in a professional and
timely manner in accordance with accepted industry standards.
10. HIPAA Compliance.
a. The parties agree that their respective actions pursuant to the terms of this
Master Agreement shall be in full compliance with all applicable law including without
limitation the Health insurance Portability and Accountability Act of 1996 as amended
("HIPAA") and all regulations promulgated thereunder. Without limiting the foregoing, if
and to the extent any of the Services involve disclosures or transmissions to or the creation
or use of Protected Health Information by Consultant related to Client's Plans, the parties
shall enter into a Business Associate Agreement prior to any such transmission, disclosure,
creation or use. Clients agrees to (i) notify Consultant prior to any transmission or other
disclosure of Protected Health Information to Consultant and request Consultant to enter
into the Business Associate Agreement, and (ii) cause any third person who may transmit
or otherwise disclose Protected Health Information to Consultant on behalf of Client to
abide by the terms of this paragraph. As used. herein, Protected Health Information means
any and all information considered "protected health information" under 45 CTR 160.103
limited to the information created, received or transmitted by Consultant Siem or on behalf
of Client pursuant to this Agreement as hereafter amended.
11. Termination.
a. Each party ("Terminating Party") may terminate this Master Agreement if
the other pasty breaches any material term or condition, ofthis s Master Agreement provided
that the Terminating Party gave written notice to the other party of the need to correct a
breach of a material obligation under this Master Agreement, which notice included
sufficient detail to allow the other party to identify and correct the breach, and the other
party failed to take reasonable steps to remedy the breach within thirty (30) days of receipt
of Terminating Parry's written notice, Each of the parties hereto may also terminate for
conveuience byproviding sixty (60) days prior written notice of the same to the otherpatty,
h. Such termination shall not relieve Client of the payment of any and all
amounts owing to Consultant under this Master Agreement through the date of termination
and any reasonable de -mobilization cost.
12. Disputes, Limitation of Liability and Indemnification.
a. Dispute Resolution. In the event of a dispute, Client agrees to inform
Consultant of such dispute and the parties agree to make a good faith attempt to reach a
mutually acceptable resolution. If they are unable to reach agreement, then each party is
free to seek legal recourse.
b. Disclaimer. OTHER THAN AS PROVIDED HEREIN NO OTHER
WARRANTY, EXPRESS OR IMPLIED, IS MADE OR INTENDED RELATED TO
THE SERVICES PROVIDED. ANY AND ALL CLAIMS SHALL BE MADE
WITHIN TWO (2) YEARS FROM THE DATE OF ANY ALLEGED FAULT OR
ERROR OR SHALL BE FOREVER BARRED.
C. Limit of Liability. IN RECOGNITION OF THE RELATIVE RISKS
RELATED TO THE SERVICES PROVIDED AND THE CONSIDERATION TO
BE RECEIVED BY THE CONSULTANT FOR SUCH SERVICES, TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, CONSULTANT'S MAXIMUM
LIABILITY FOR ANY AND ALL CLAIMS UNDER ANY THEORY FOR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY OF TELE
SERVICES PROVIDED TO CLIENT PURSUANT TO THIS AGREEMENT
INCLUDING WITHOUT LIMITATION, ANY LIABILITY FOR NEGLIGENCE
SHALL NOT EXCEED THE AMOUNT OF FEES AC'T'UALLY PAID TO
CONSULTANT BY CLIENT IN THE THREE (3) MONTH PERIOD PRIOR TO
THE DATE OF LOSS WITH RESPECT TO THE SERVICES DIRECTLY
RELATING TO AND FORMING THE BASIS OF SUCH CLAIM. WITHOUT
LIMITING THE FOREGOING, IN NO EVENT SHALL CONSULTANT BE
LIABLE TO CLIENT OR ANY THIRD PERSON EOR ANY TAX, PENALTY OR
FEE IMPOSED ON CLIENT OR ANY THIRD PERSON BY ANY
GOVERNMENTAL AU'T'HORITY EVEN IF THE SOURCE OF SUCH TAX,
PENALTY OR FEE IS THE SERVICES ORI -AND DELIVERABLES OR ANY
DEFECT IN EITHER OF THEM.
d. Indemnification. To the fullest extent permissible by law, Client will
indemnify and hold Consultant and its personnel, contractors and third -party supplier's of
services and tools (including computer software) harmless from any and all claims,
liabilities, and expenses relating to negligent actions or omissions, or breaoh of contract by
Client or its personnel. Consultant agrees to indemnify, and hold harmless the Client,
officers and employees from and against Lill claims, liabilities, judgments and expenses
arising from personal or bodily injuries, and/or property damage directly caused by
negligence This section shall survive termination of this Master Agreement.
13. Miscellaneous.
a. Notices. All notices hereunder shall be in writing and shall be sent by
certified mail, return receipt requested, or by overnight courier service, to the notice
address set Porth below each party's signature, or to such other addresses as tray be
stipulated in writing by the parties. Unless otherwise provided, notice shall be effective on
the date it is officially recorded as delivered by return receipt or equivalent.
b, Entire Agreement; Amendment. This Master Agreement, incorporated
agreements and each properly executed SOW supersede all prior agreements, arrangements
and undertakings between the parties and constitutes the entire agreement between the
parties relating to the subj ect matter hereof. This Master Agreement may not be amended
except by written instrument executed by both parties. In the event of a conflict between
the terms of any given SOW and this Master Agreement, the terms of this Master
Agreement shall control, unless such SOW expressly states that it is amending the terms
of the Master Agreement with respect to such SOW. The invalidity or unenforceability of
any provision of this Master Agreement shall in no way affect the validity or enforceability
of any other provision of this Master Agreement.
C. Assignment and Sub-Contracting. Consultant may sub-contract the
Services hereunder. Consultant may also, for the benefit of Client, retain any necessary
independent third-party actuarial experts, in connection with performance of the Services
hereunder. Client may not assign the Services or any other rights hereunder or under a
SOW without Consultant's written consent.
d. Force Majeure. If either party is prevented from performing any of its
duties and obligations hereunder (other than duties or obligations with respect to payment)
in a timely manner by reason of any act of God; strike, labor dispute, flood, public disaster,
equipment or teclmical malfunctions or failures, power failures or interruptions or any other
reason beyond its reasonable control, such condition shall be deemed to be a valid excuse
for delay of perforatance or for nonperformance of any such duty or obligation for the
period during which such conditions exist.
e. No Waiver. The waiver of any breach or failure of a term or condition of
this Master Agreement by any party shall not be construed as a waiver of airy subsequent
breach or failure of the same term or condition, or a waiver of any other breach or failure
of a term or condition of this Master Agreement.
f. Governing Law. This Master Agreement and all SOW's shall be governed
by, and construed in accordance with, the laws of the State of Oklahoma applicable to
contracts made and performed in Oklahoma without regard to conflict of laws principles.
The parties hereto submit to the exclusive jurisdiction of the appropriate court in. Oklahoma
City, for the purpose of resolving any dispute relating to the subject matter of this Master
Agreement or the relationship between the parties pursuant to this Master Agreement.
g. Counterparts. This Master Agreement and any SOW may be executed in
counterparts, each of which shall be deemed an original, but all of which taken together
shall constitute one and the same agreement. The parties may utilize electronic means
(including facsimile) to execute and transmit this Master Agreement and SOWS and all
such electronically executed and/or transmitted copies shall be deemed as valid as
originals.
It. Severability. If any term of this Master Agreement or a SOW is held
invalid or unenforceable for any reason, the parties agree that such invalidity will not
affect the validity of the remaining provisions of this Agreement, and further agree to
substitute for the invalid provision a valid provision that most closely approximates the
intent and economic effect of the invalid provision.
WHEREFORE, for the purpose of being bound, the parties execute this Master Agreement
by their duly authorized representatives as of the date first set forth above.
Agreed By:
CITY OF NEWPORT BEACH,
CALIFORNIA
Name: Terri Cassidy
Title: Deputy City Manager
Signature: o
Notice Address:
City of Newport Beach, California
100 Civic Center Drive
Newport Beach, CA 92660
AMERICAN FIDELITY
ADMINISTRATIVE SERVICES LLC
Name: Susan Relland
Title: Chief xecutive Officer
Signature:
Notice Address:
American Fidelity Administrative Services,
LLC
Attn: Manager
2000 N. Classen Blvd.
Oklahoma City, OK 73106
AND
American Fidelity LAW Department
2000 N. Classen Blvd.
Oklahoma City, OK 73106
APPROVED AS TO FORM:
CITY A RNEY'S OFFICE
Date
ft
Aaron C. Harp Cl�mey
PROJECT: Time and Eligibility Services
A. TERMS AND CONDITIONS: This statement of work ("SOW") is made and entered into
effective as of the latest date signed below (the "Effective Date"). This SOW is subject to the
terms and conditions of the Master Agreement identified above.
B. SERVICE DATES: Subject to the Termination provision Article E below, this SOW will
continue for a period of twelve (12) months from the Effective Date ("Initial Term"),
C. SERVICES AND DELIVERABLES
I. WORXTIME SERVICE
a. Consultant has made arrangements for Client to access a service ( the " Wotxtime
Service") and related documentation (the "Documentation") provided by a third
person (the "Provider") for tracking, monitoring and reporting hours worked by
employees. The Wotxtime Service utilizes certain computer programming (the
"Wotxtime Program").
b. Consultant hereby permits Client to use the Worxtime Service and
Documentation in accordance with the terms, conditions and limitations of this
SOW during the Term or Terms, as defined herein. Any use of the Worxtime
Service that is inconsistent with the terms, conditions and limitations of this
Agreement is prohibited. Client's permission to use the Worxtime Service is
subject to Client's payment in full of all fees and Client's compliance with all
other terms and conditions of this Agreement. The right to use the Worxtime
Service granted to Client by Consultant is a limited, personal, non-exclusive,
non -transferable and non -assignable (except as this SOW otherwise provides).
2. CONSULTANT SERVICE
a. If prior to the Effective Date of this SOW Client has entered into a Master
Agrcemcnt which relates to services other than the Services described in this
SOW, Client shall be considered to be an existing client ("Existing Client") under
this SOW; and Consultant will provide a one (1) hour discussion with the Client
to help Client understand the application or Section 49801I of the Internal
Revenue Code of 1986 as amended, which is referred to as the Employer
Mandate Penalty rules and then gather the information needed to implement
Wbrxthne Service, V
b. If Client is not an Existing Client, Consultant shall provide two (2) hours of
consultation with Client.
c. Travel expenses will be billed to the Client following the final consultation if
Client requests the consultation described above to be in person.
D. RESTRICTIONS AND RESPONSIBILITIES CONCERNING THE WORXTIME
SERVICE
1. Without implying that Client will have access in the Worxtime Program by accepting the
rights granted by Consultant, Client agrees that Client will not, without the prior written
consent of Consultant; (a) sell, license, sublicense, grant rights to, distribute, lease or
otherwise transfer or allow the transfer of the Worxtime Program, or any backup copy, to
third parties; (b) use the Worxtime Program in any manner inconsistent with the rights
granted herein; (c) use the Worxtime Program in any manner for the purpose of
monitoring or evaluating a greater number of employees than such number of employees
anticipated by the agreed to pricing, herein; (d) modify or create derivative works of the
Worxtime Program or Documentation or separate the Worxtimc Program's component
parts; or (e) unless specifically permitted under applicable law without the possibility of
contractual waiver, attempt to decompile, disassemble or reverse engineer the Worxtime
Program, or otherwise attempt to (i) derive source code or underlying ideas, algorithms,
structure or organization from the Worxtime Program or (ii) defeat, avoid, bypass,
remove, deactivate or otherwise circumvent any software protection mechanisms in the
Worxtime Program, including without limitation any such mechanism used to restrict or
control the functionality of the Worxtime Program.
Z. Client may not transfer the Documentation, or assign any rights granted hereunder prior
to receiving written authorization from Consultant.
3. Client agrees that Client will not use the Worxtime Service in any manner that could
damage; disable, overburden, or impair such services or interfere with any other party's
use and enjoyment of them.
4. Client acknowledges and agrees that Client is solely responsible for timely submission
accuracy, and completeness of all data required to be input into the Worxtime Service.
a. `Data" for purposes of this SOW is defined as demographic data, plan data,
enrollment data, and hours of service (records of hours worked slid hours for
which payment is made or due) data. Consultant has no responsibility or
obligation to determine if Data is accurate or complete.
b. "Timely Submission" for purposes of this SOW is defined as follows
i. Submitting initial test Data within two weeks of the implementation call;
ii. Submitting final test Data within one week of receiving correspondence on
the initial Data; and
iii. Submitting ongoing Data at least monthly,
5. By wri'ten notification to Consultant, Client shall identify the person or persons who will
be authorized to access the Worxtime Service on Client's behalf. The persons identiPled
by Client are referred to as "Authorized Users". Client shall be responsible for insuring
that access codes needed to access the Worxtime Service are only provided to Authorized
Users and that access to the Worxtime Service is in accordance with procedures
established by Consultant. Client further agrees that Client is solely responsible for
access to Client's Data in violation of such procedures and Consultant shall have no
responsibility, obligations or liability for any unauthorized access to the Client's Data
resulting from a failure to follow Consultant's procedures.
E. FEES (Identified in Exhibit A attached hereto)
a. Setup Fee. In order to initiate the Worxtime Service, Client agrees to pay setup
fee in the amount of $995, which is due and payable for the Initial Term as of the
Effective Date. This setup fee includes ten (10) horns of client support to set up
Client's Data hi the Worxtime system, if Client requires more than ten (10)
hours of support in connection with establishing the Worxtime Service, Client
shall pay an additional fee at the rate of $400 per hour. Art Existing Client as
defined in Section (2.a.) will receive a $300 discount on the setup fee if services
were rendered in the past twelve (12) months for any service other than a
"Bronze" package.
b. Per Employee Fees. Client agrees to pay $0_45 per month for each employee
whose hours are monitored through the Worxtime Service. A fee of $0.45 per
employee per month of the initial measurement period that has already lapsed, if
any, will also apply. Monitoring will begin on . This fee
is contingent on the combined school districts of the Alliaut Employer Groups
exceeding 4,000 employees each month whose hours are monitored through the
Womtime Service. Should the combined employee count whose hours are
monitored through the Worxtime Service for all Alliant Employer Groups
members fall below 4,000 for any given month then the fee will be adjusted
based on the schedule in Exhibit A. Monitoring will begin with the earliest of the
start of the client's Measurement Period or the earliest month of the hoars
uploaded into the Wontime system. All per employee .fees will be invoiced on or
about the l0fn day of each month. Payment of per employee fees is due within
thirty (30) days of receipt of such invoice. Consultant reserves the right to
increase the amount of the Per Employee Fees in future years.
c. Out -of -Pocket Expenses. Client will pay out-of-pocket travel expenses incurred
by the Consultant for in-person meetings, if any.
F. TERMINATION OF SO"'
If either party materially breaches any provision of this SOW, the other party may terminate
this SOW with thirty(30) days' written notice, provided, however that the puty in breach shall
have thirty (30) days from receipt of notice of breach to cure the breach ("Cure Period"). In
the event the breach ug party fails to cure the breach during the Cure Period, the SOW shall be
deemed to luive been terminated as of date of notice of breach. hither party may terminate all
or part of this SOW for any reason effective no earlier than thirty (30) days after written notice
is provided to the other party. This SOW will automatically terminate on the earliest of the
following dates:
1. If the reason for termination is the failure by Client to pay a fee by the due (late
(including any grace period), termination of this SOW will be retroactively effective as
of the last (lay of the period for which a fee was properly made in accordance with this
SOW, except as othcrwise provided in writing by Consultant.
2. The date that this SOW or the Client violates applicable law.
'fennination of this SOW shall not wrrninaw the rights or obligations of either party arising
prior to the effective date of such termination
In the event the Client terminates this SOW prior to paying one (1) full month of per employee
fees, all Data entered into the Worxtime Service by or for Client, all databases of information
related to the Worxtime Service and reports generated by the Worxtime Service will be the
property of Consultant. Consultant shall make reasonable efforts to keep Client Data
confidential and in the alternative may elect to destroy all such Data.
G. COPYRIGHT AND PROPRIETARY INFORMATION
Consultant and its Provider reserve all of the intellectual property rights with respect to the
Worxtime Program, the Worxtime Service and Documentation and any copies under all
applicable national and international laws and treaties for the protection of Intellectual
Property Rights, including, but not Limited to, trade secrets, copyrights, trademarks and
patents. Any rights not expressly granted to Client in this SOW are retained by Consultant
and the Provider.
Except as otherwise provided in this SOW, Client shall not cause or permit unauthorized
copying, reproduction or disclosure of any portion of the Worxtime Program or
Documentation, or the delivery or distribution of any part thereof to any third party, for any
purpose, without the prior written permission of Consultant. This restriction shall continue
beyond the termination of this SOW. In the event Client becomes aware of any unauthorized
use, copying, reproduction or disclosure of the Worxtime Program or Documentation,
Customer shall notify Consultant, in writing, immediately.
11. LIMITED WARRANTY/DISCLAIMER
1. Subject to the, limitation of liability provisions contained in the Master Agreement and as
set 1'.orth in this SOW, Consultant warrants that it has sufficient rights to grant Client the
rights to access the Worxtime Service pursuant to this Agreement. No warranty is made
that the Worxtime Service will be uninterrupted or error -free. Client is solely responsible
for all Data input. Consultant expressly disclaims any and all liability resulting from
inadequate, incomplete or improper Data input. 'This warranty is limited to the duration
for the Initial Term and any Renewal. Terms.
2. THE PRECEDING WARRANTY IS THE ONLY WARRANTY RELATED TO THE
WORXTTME SERVICE, DOCUMENTATION AND SUPPORT SERVICES AND IS
MADE? IN LIEU OF ALL OTHER WARRANTIES AND CONt)rr10NS, EXPRESS OR
0APLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -
INFRINGEMENT. CONSULTANT IS NOT LIABLE FOR ANY DAMAGES,
INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, ATTORNEY'S FEES,
PUNITIVE OR. SPECIAL DAMAGES RELATING TO :LOSS OF DATA, PROFIT,
REVENUE OR BUSINESS OR THE LOSS, DAMAGE OR DESTRUCTION OF ,ANY
PROPERTY, WHETHER YOU, CLIENT'S ASSIGNEE OR ANY OTHER
TRANSFEREE STIFFER THE, LOSS OR DAMAGE AND WHETHER OR. NOT
CONSULTANT IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
I,OSS OR DAMAGE.
3. I£ an implied warranty or condition is created by Client's state/jurisdiction and federal or
stat -,/provincial law prohibits disclaimer of it, Client may also have an implied warranty
or condition, BUTONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD
OF THIS LIMITED WARRANTY (90 DAYS). AS TO ANY DEFECTS DISCOVERED
AFTER THF. NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR
CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how
long an implied warranty or condition lasts; so, the above limitation may not apply to
you. This limited warranty gives Client specific legal rights. Client may have other
rights, which vary from state/jw•isdiction to state/jurisdiction.
4. Consultant is acting on behalf of its suppliers for the purpose of disclaiming, excluding,
and/or limiting obligations, warranties, and liability as provided in this Agreement, but in
no other respects and for no other purpose.
5. Client understands and acknowledges that Client is solely responsible, among other
things, for: (a) all uses of the Worxtime Service using user names or passwords assigned
to you; (b) input of data into the Worxtime Service; (c) confirmation of the accuracy of
the data input into and received from the Worxtime Service; and, (d) compliance with all
applicable lacus associated with the use of the data.
I. LIMTATION OF LIABILITIES
SUBJECT TO THE LIMITATION OF LLABH.IT'Y AND OTHER TERMS CONTAINED
IN THE MASTER AGREEMENT, CONSULTANT AND ITS PROVIDER'S ENTIRE
LIABILITY AND CLIENT'S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS
LIMITED WARRANTY OR FOR ANY OTHER BREACH OF THIS AGREEMENT OR
FOR ANY OTHER LIABILITY RELATING TO THE WORXTIME SYSTEM SHALL BE
LIMITED TO (A) CORRECTION OF ERRORS IN THE OPEI:ATION OF THE
WORXTIME SYSTEM OR (B) REFUND OF FEES CLIE'_VT WILL RECEIVE ONE OF
THE TWO REMEDIES, SELECTED BY CONSULTANT' IN ITS SOLE DISCRETION,
WITHOUT CHARGE.
IN NO EVENT WILL CONSULTANT, THE PROVIDER OR ANY OF THEIR
RFSPFCTIVE AFFILIATES HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN
TORT, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITIISTANDTNG ANY
FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
BUT NOT LIMITED TO, LOST REVENUE, LOSS OF OR DAMAGE TO DAIA,
PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM
OR RELATED TO THE WORXTIME PROGRAM, THE WORXTIME SERVICE OR THE
DOCUMENTATION OR, EVEN IF ADVISED OF THF. POSSIBILITY OF SUCH
DAMAGES. CONSULTANT'S LLABILITY FOR ANY REASON AND UPON ANY
CAUSE OF ACTION SII.ALL AT ALL TIMES AND INTHE AGGREGATE AMOUNT BE
LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO CONSULTANT
UNDER THIS AGREEMENT.
This limitation of liability also applies to the Provider. It is the maximum for which the
Provider and Consultant are collectively responsible. Some states jurisdictions (to not allow
the exclusion or limiration of incidental or consequential damages, so the above limitation or
exclusion may not apply to Client.
[EXECUTION PAGE FOLLOWS]
AGREED BY:
CITY OF NEWPORT BEACH, CALIFORNIA
CNI
Name: Terri Cassidy
Title: Deputy tty M age
—
Date:
Notice Address:
City of Newport Beach, California
100 Civic Center Drive
Newport Beach, CA 92660
AMERICAN FIDELITY ADMINISTRATIVE SERVICES, LLC
Name: Susan Relland
Title: Chief Executive Officer
Date: — t o-"
Notice Address:
American Fidelity Administrative Services, LLC
Attn: Manager
2000 N. Classen Blvd.
Oklahoma City, OK 73106
AND
American Fidelity LAW Department
2000 N. Classen Blvd.
Oklahoma City, OK 73106
APPROVED AS TO FORM:
CITYA,Y`,S OFFICE
Dater —
Aaron C. Harp, City Attomey
EXHIBIT A
FEES
One Time Set -tip Fees
$995,00
"without purchase of implementation pniotV
One Time Set -Up Fees
$695.00
*with purchase of Implementation packup
Per Employee Per Month fees (PEPM)
$0.75
Group size up to 999
Per Employee Per Month fees (PEPM)
Group size 1000-1999
Per Employee Per Month fees (PEPNI)
$0.55
Group size 2000-3999
i Per F.mployeo Per Month fees (PEPNI)
$0.45
Group size 40W -t
PROJECT: ACA Employer Reporting Services
A. TERMS AND CONDITIONS: This statement of work ("SOW") is made and entered into
effective as of the latest date signed below (the "Effective Date"), This SOW is subject to the
terms and conditions of the Master Agreement identified above.
B. SERVICE DATES
Subject to the Termination provision Article F. below, this SOW will continue for a period of twelve (12)
months front the Effective Date ("Initial Term").
SERVICES AND DELIVERABLES
I. Ib,' GENERAL
a. So long as all fees payable under Section E below have been paid and Client's other
obligations under this SOW have been fulfilled, Consultant will snake arrangements for
Client to have access to a "Womfirne limployer Reporting Service" to be available, as
described herein, in order to help Client generate Internal Revenue Service (IRS) 1094
and 1095 Forms, and satisfy the reporting requirements to the IRS and disclosure
requirements to Client's insured employees as required under Section 6055 and 6056 of
the Internal, Revenue Code of 1986, as amended. Consultant will also provide
Consulting Services, described below, to assist Client with these obligations,
b. The fees and services described in this SOW apply for an "Applicable Reporting Year."
An Applicable Reporting Year means a single calendar year for which the Client is
required to generate IRS 1094 and 1095 Forms. Services provided early in the
subsequent calendar year to assist with ge aerating aril filing [RS 1094 and 1095 Forms
for an Npplicahte Reporting Year will still be considered part of the service for the
Applicable Reporting Year,
2. WORXTIME EMPLOYER REPORIING SF,RVICES
a. The Worxtime Employer Reporting Service will provide information and documentation
necessary for Client to generate the applicable Internal Revenue Service FIRS 1094 and
1095 Forms. The Worxtime Employer Reporting Service utilizes certain computer
programming (the "Worxtime Program").The responsibility to report the required
information to the IRS and provide disclosure documentation to the Client's employees
remains with the Client, although this is a service the Client may perform using the
Worxtime Program.
b. Consultant hereby permits Client to use the Worxtime Employer Reporting Service and
Documentation in accordance with the terms, conditions and limitations of this SOW
during the Tenn or Terms, as defined herein. Any use of the Worxtime Employer
Reporting Service that is inconsistent with the terms, conditions and limitations of this
Agreement is prolrlbited. Client's permission to use the Wonahno Employee' Reporting
Glty ofNw,�•ax Dsm4, Co., fnn.,-£mpinya Dq Q.s
Service is subject to Client's payment in full of all fees and Client's compliance with all
other terns and conditions of this SOW. The right to use the Worxtime Employer
Reporting Service granted to Client by Consultant is limited, .personal, non-exclusive,
non -transferable and non -assignable (except as this SOW otherwise provides)"
3, CONSUhTANT SERVICE
a, If, prior to the Effective Date of this SOW, Client has entered into a Master Agreement
which relates to services other than the Services described in this SOW, Client shall be
considered to be an "Existing Client" under this SOW and Consultant will provide a one
hour discussion with the Client to help Client understand the application of Section
49801i of the Internal Revenue Code of 1986 as amended, which is referred to as the
Employer Mandate Penalty rules, and then gather the information needed to implement
Worxtime Service.
b, Travel expenses will be billed to the Client following the final consultation if Client
requests the consultation described above to be in person.
C. RESTRICTIONS AND RESPONSIBILITIES CONCERNI\G THE WORXTIME
EMPLOYER REPORTING SERVICE
1. Without implying that Client will have access in the Worxtime Program by accepting the rights
granted by Consultant, Client agrees that Client will not, without the prior written consent of
Consultant; (a) sell, license, sublicense, grant rights to, distribute, lease or otherwise transfer or
allow the transfer of the Worxtime Program, or any backup copy, to third parties; (b) use the
Worxtime Program in any manner inconsistent with the rights granted herein; (c) use the
Worxtite Program in any manner for the purpose of monitoring or evaluating a greater ntunber
of employees than such number of employees anticipated by the agreed to pricing, herein; (d)
modify or create derivative works of the Worxtime Program or Documentation or separate the
Worxtime Program's component parts; or (e) unless specifically permitted under applicable law
without the possibility of contractual waiver, attempt to decompile, disassemble or reverse
engineer the Worxtime Program, or other -wise attempt to (i) derive source. code or underlying
ideas, algoritluns, structure or organization from the Worxtime Program or (ii) defeat, avoid,
bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the
Worxtime Program, including without limitation any such mechanism used to restrict or control
the functionality of the Woixtitne Program,
2. Client may not transfer the Documentation, or assign any rights granted hereunder prior to
receiving written authorization from Consultant.
3. Clientagrees that Client will not use the Womtune Employer Reporting Service in any manner
that could damage, disable, overburden, or impair such services or interfere with any other
party'e use and enjoyment of titer.
4. Client actwowledges and agrees that Client is solely responsible for the accuracy and
completeness of all data required to be input unto the Worxtime Employer Reporting Service and
that Consultant has no responsibility or obligation to determine if such information is accurate or
complete.
5. Client agrees that Client is solely responsible for designating users who will have authorized
access to C'tient's data and ensuring that only such auPnorized users have access. Consultant shall
have no responsibility, obligations or liability for any unauthorized access tc die Client's data
resulting from Client's failure to follow Consultant's procedures with regard to accessing data.
A PEES
iW efi)kwFn= UC., CIIrOl01i- rIn, k", Rwnr:ung S,,'vkrs SOW - 09.30.IS
1. Annual Fee. in order to initiate the Worxtime Employer Serv!ce where the Client does not
already have an in -force SOW for Worxtime Time and Eligibility Services, Client agrees to pay
an annual fee in the amount of S995 for each Applicable Reporting Year, which is payable upon
execution of this SOW for the first Applicable Reporting Year and; thereafter for subsequent
Applicable Reporting Years the annual fee will be due in July of each Applicable Reporting Year,
This annual fee includes 5 hours of Client support to set up Client's group data in the Worxtime
Program for each Applicable Reporting Year, If Client requires more than 5 hours of support in
connection with establishing the Worxtime Employer Reporting Service in an Applicable
Reporting Year, Client shall pay an additional fee at the rate of $400 per hour, billed in quarter-
hour increments.
2. Per Employee Fees. Client agrees to pay the associated pricing per Applicable Reporting Year of
$3.50 for each employee whose information is provided for the purpose of the Worxtime
Employer Reporting Service, An estimated 50% of the per employee fee will be billed no earlier
than July of the Applicable Reporting Year and the remainder will be billed the following January.
Payment of per employee fees is due within 30 days of receipt of invoice.
3. Late Fees.
a. Client shall provide the necessary information required for reporting and the information will
be made available to Worxtime on a monthly basis. However, should information for the
applicable reporting year through September not be made available to Worxtime on or before
October 15 of the same year, a fee of $995 will be unposed. Should information for the
applicable reporting year through October not be made available to Womfinto on or before
November 15 of the same year, a fee of $1,995 will be imposed. Should information for the
applicable reporting year through November not be made available to Worxtime on or before
December 15 of the same year, a fee of $2,995 will be imposed.
b. Should information for the applicable reporting year through December not be made available
to Worxtime on or before January 15 of the subsequent year, Consultant will not confirm an
ability to meet the time frames for repo, ting information to the employees or the IRS,
4. Fee Increases. The fees set forth in this Section E shall remain in effect for first Applicable
Reporting Year following the .Effective Date. Beginning the second Applicable Reporting Year,
AFAS may increase the fees described above by providing written notice to the Client by June 1
of an Applicable Reporting Year.
5. Out of Pocket Expenses. Client will pay out-of-pocket travel expenses incurred by the
Consultant for in person meetings, if any,
E. TERMINATION OF SOW
If either party materially breaches any provision of this SOW, the other party may teauinate this SOW
with thirty (30) days written notice, provided, however that the party in breach shall have thirty (30)
days &our receipt of notice of breach to cure the breach ("Cure Period"). In the event the breaching
party fans to cure the breach during the Cure Period, the SOW shall be deemed to have been terminated
as of date of notice of breach. Either party may terminate all or pat of this SOW for any reason effective
no earlier than 30 days after written notice is provided to the other party. This SOW" will automatically
terminate on the earliest of the following dates:
1. If the reason for termination is the failaro by Client to pay a fee by the due date (including any
grace period), termination of this SOW will be retroactively effective as of the last day of the
period for which a fee was properly made in accordance with this SOW, except as otherwise
provided in writing by Consultant.
2. The date, that this SOW or the Client violates applicable law.
Cog, rNm P1n 911h, Ce mein-S0\V-(0.30 15
Termination of this SOW shall not terminate the rights or obligations of either party arising prior to the
effective date of such termination.
In the event the Client terminates this SOW prior to paying the first invoice, all data entered into the
Worxtime Employer Reporting Service by or for Client, all databases of information related to the
Worxtime Employer Reporting Service and reports generated by the Worxtime Employer Reporting
Service will be the property of Consultant. Consultant shall make reasonable efforts to keep such data
confidential and in the alternative may elect to destroy all such data.
F. COPYRIGHTr1NDPROPRIETARYENFOR'tVIXfION
Consultant and its Provider resen e all of the intellectual property rights with respect to the Worxtime
Program, the Worxtime Employer Reporting Service and Documentation and any copies under all
applicable national and international laws and treaties for the protection of Intellectual Property Rights,
including, but not limited to, trade secrets, copyrights, trademarks and patents. Any rights not expressly
granted to Client in this SOW are retained by Consultant and the Provider.
Except as otherwise provided in this SOW, Client shall not cause or permit unauthorized copying,
reproduction or disclosure of any portion of the Worxtinne Program or Documentation, or the delivery or
distribution of any part thereof to any third party, for any purpose, without the prior written permission
of Consultant. This restriction shall continue beyond the termination of this SOW. In the event Client
becomes aware of any unauthorized use, copying, reproduction or disclosure of the Worxtime Program
or Documentation, Customer shall notify Consultant, in writing, immediately.
G. LIMITED WARRANTY/DISCLAIMER
1. Subject to the limitation of liability provisions contained in the Master Agreement and as set
forth in this SOW, Consultant warrents that it has sufficient rights to grant Client the rights to
access the Worxtime Employer Reporting Service pursuant to this Agreement. No warranty is
made that the Worxtime Employee Reporting Service will be uninterrupted or crror-free, Client
is solely responsible for all data input. Consultant expressly disclaims any and all liability
resulting from inadequate data input, incomplete data input or improper input data. This warranty
is limited to the duration for the hsitialTerm and any Renewal Terms.
2. THE PRECEDING WARRANTY IS THE ONLY WARRANTY RELATED TO THE
WORXTIME EMPLOYER REPOKI'TNG SERVICE, DOCUMENTATION AND SUPPORT
SERVICES AND IS MADE IN I.IEIJ OF AI,L OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPL-ED, INCLUDING; BUT NOT LIMITED TO ANY LMPLIED
WARRANffFS OF MERCHANTABILITY, FITNESS POR A PAItITCULAR PURPOSE OR
NON- INFRINGEMENT, CONSULI`ANT IS NOT LIABLE FOR ANY DAMAGES,
INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL. ATTORNEY'S FEES,
PUNITIVE OR SPECIAL DAMAGES RELATING TO LOSS OF DATA, PROFIT, REVENUE
OR BUSINESS OR TILE T OSS, DAMAGE OIL DESTRUCTION OF ANY PROPERTY,
WHETHER YOU, CLIENT'S ASSIGNEE. OR ANY OTHER TRANSFEREE StiFFFR THE
LOSS OR DAMAGE AND WHETHER OR NOT CONSULTANT IS INFORMED IN
ADVANCE OF THL POSSIBILITY OF SUCH LOSS OR DAMAGE.
3. if an implied warranty or condition is created by Client's stateJarisdiction and federal or
state/provincial taw pmbibits disclaimer of it, Client may also have an implied tvatratity or
condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS
LL4IITED WARRANTY (9(l DAYS). AS TO ANY DEFECl'S DISCOVERED AFTER TILE
NINETY (90) DAY PERIOD, THF.Rh IE NO WARRAN'T'Y OR CONDITION OF ANY KIND.
Some states/jurisdictions do not allow limitations on how long an ittiplied warranty or condition
lasts, so the above limitation may riot apply to you. This limited warranty gives Client Specific
legal rights. Client unay have other rights, which vary from stato jurisdiot on to statcijurisdiction.
(1% lfl—1,' ecce. e'L",m,4s.,.-srvv. u' 3" 1s
A. Consultant is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and/or
limiting obligations, warranties, and liability as provided in this Agreement, but in no other -
respects and for no other purpose.
5. Client understands and acknowledges that Client is solely responsible, among other things, for:
(a) all uses of the Worxtime Employer Reporting Service using user names or passwords assigned
to you; (b) input of data into the Worxtime Employer Reporting Service; (c) confirmation of the
accuracy of the data input into and received from the Worxtime Employer Reporting Service;
and, (d) compliance with all applicable laws associated with the use of the data.
H. LIbIITATION OF LIABILITIES
SUBJECT TO THE LIMITATION OF LIABILITY AND OTHER TERMS CONTAINED IN THE
MASTER AGREEMENT, CONSULTANT AND ITS PROVIDER'S ENTIRE LIABILITY AND
CLIENT'S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS LIMITED WARRANTY OR FOR
ANY OTHER BREACH OF THIS AGREEMENT OR FOR ANY OTHER LIABILITY RELATING TO
THE WORXTTME SYSTEM SHALL BE LE fIT.D TO (A) CORRECTION OF ERRORS IN THE
OPERATION OF THE WORXTIME SYSTEM OR (B) REFUND OF FEES CLIENT WILL RECEIVE
ONS OF THE TWO REMEDIES, SELECTED BY CONSULTANT IN ITS SOLE DISCRETION,
WITHOUT CHARGE.
IN NO EVENT WILL, CONSULTANT, THE PROVIDER OR ANY OF THEIR RESPECTIVE
AFFILIATES HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT,
WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAUUI', NEGLIGENCE,
PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT', INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE,
LOSS OF OR DAMAGE TO DATA, 'PROFITS OR BUSINESS INTERRUPTION" LOSSES,
SUSTAINED OR. ARISING FROM OR RELATED TO THE W'ORX'T'I1N4E PROGRAM, THE
WORXI'IivIE SERVICE OR THE DOCUMENTATION OR, EVEN IF ADVISED OF THE
POSSIBRAJY OF SUCH DAMAGES. CONSULTANT'S LIABILITY FOR ANY REASON AND
UPON ANY CAUSE OF AC'TTON SHALL AT ALL TIMES AND Tr THE AGGREGATE AMOUNT
BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO CONSUUTANT UNDER THIS
AGREEMENT.
This limitation of liability also applies to the Provider. It is the maximum Cor which the Provider and
Consultant are collectively responsible. Some statesjurisdictions do not allow the exclusion or Tnnitation
of incidental or consequential dautages, so the above limitation or exclusion may not apply to Client.
Clic otnnrpmlll¢d,, Cvl;[mnii �,:mploy<I (:EpO,tl.l,(S�niica CUW �i'3it1i
The parties hereby agree and consent to the lenns and conditions of this SOW and
acknowledge such by executing the SOW below.
City o Newport 1 ea tGforni� Ameri n Fidelity Administrative Services,
LLC
Name: Terri Cassidy Name: Susan Reiland
Title: Chief Executive Officer
Title: Deputy City Manager
Date: ✓ll Date: U yi
Notice Address: Notice Address:
City of Newport Beach, California American Fidelity Administrative Services,
100 Civic Center Drive LLC
Newport Beach, CA 92660 Attn: Chief Executive Officer
2000 N Classen Blvd
Oklahoma City, OK 73106
AND
American Fidelity LAW Department
2000 N Classen Blvd
Oklahoma City, OK 73106
APPROVED AS TO FORM:
CITY AJTPRh{ Y S OFFICE