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HomeMy WebLinkAboutBENEFIT FUNDING SERVICES GROUP, INC. 2 - 2007 N-2007 -007 INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: ';-,J.o-o'l CONSULTANT AGREEMENT o.(l'Io\S,Z, G. ~e) THIS AGREEMENT, made and entered into this 10th day of January, 2007 by and between Benefit Funding Services Group, Inc a California Corporation (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECIT ALS A. The City desires to retain a Contractor having special skill and knowledge in the field of municipal investment assessment. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance ofthis Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows; 1. SCOPE OF SERVICES Contractor shall perform analysis and assessment services regarding the Santa Ana Employee Deferred Compensation Program, as set forth in Exhibit A, attached hereto and incorporated by this reference. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $10,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on completion of services, unless terminated earlier in accordance with Section 12, below. 1 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Due to the nature of services provided, Commercial General Liability insurance is not required. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. I f Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. d. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith 2 terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnifY the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor agrees to and shall indemnifY and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability: (I) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason ofthe events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. 7. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; ( c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or 3 mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (7]4) 647-6956 With courtesy copies to: Executive Director of Finance and Management Services City of Santa Ana 20 Civic Center Plaza (M-17) P.O. Box] 988 Santa Ana, California 92702 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Contractor: Benefit Funding Services Group 2040 Main Street Suite 150 Irvine CA 92614 A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent 4 with, or in addition to, that terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses ofthis Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 5 15. PROFESSIONAL LICENSES Contractor shall, throughout the term ofthis Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination ofthis Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each ofthe terms ofthis Agreement, and shall indemnity City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body ofthis Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. A TTE~J:;-7 ~~/ ~.- - PATRICIA E. HEALY Clerk of the Council CITY OF SANTA ANA APPROVED AS TO FORM: .(J RECOMMENDED FOR APPROVAL: BENEFIT FUNDING SE CES GROUP, INC. ~"'\"L, \-:-\~, '-- FRANCISCO GUTIERREZ Executive Director of the Finance and Management Services Agency 1 C. CAMPBELL rincipal I/~' 12/ 22..3 J 6 EXHIBIT A SCOPE OF SERVICES 1. a. Provide comprehensive quarterly (4th quarter 2006 and 1" quarter 2007) investment analysis reviews of all Plan investment options, as weIl as, additional options and asset classes to consider. Said review shaIl include, but not be limited to: . Market overview addressing the major markets, indices, sectors and the economic statistics affecting them; . In-depth portfolio summary, including fund and benchmark returns, style analysis and overall portfolio return; . Analyze the Plan asset allocation by fund and underlying sector. The fund lineup will also be analyzed to determine the amount of overlap that may be occurring; . A detailed quantitative and qualitative examination of each mutual fund investment option within the Plan, including performance numbers versus the category and index, manager style drift, risk/return, standard deviation, Sharpe ratio, expense ratio, upside and downside capture and fund allocation; . Review of City's Investment Policy Statement to ensure it is meeting the needs of the Client and the defined contribution Plan participants, and that the processes outlined within are being adhered to; and . Make recommendations of possible alternatives to funds when, in conjunction with the Investment Committee, it is determined a change in fund line-up is necessary. b. After BSFG prepares the quarterly review, BFSG will meet with the Investment Committee, or others designated by the Client, to present the quarterly reports and findings, make recommendations as to particular investments to be placed in the fund line-up and answer any questions. c. BFSG will act as co-fiduciary on all Plan investment options by providing fund and investment advice on a regular basis to the Plan regarding the Plan's assets in accordance with the provisions of the Agreement 2. Prepare, disseminate and perform a preliminary review of responses to a Request for Proposal document (RFP) based on Client's needs and customized data and interviews. Development of the RFP shaIl include: . Perform a Needs Assessment defining, with the Plan Administrator and Investment Committee, the 457 and 3121plan parameters and objectives from which to develop an RFP including, but not limited to fiduciary and administrator responsibilities, 7 " investment policy, the management of appropriate fund options, and asset classes, etc.; . After developing Plan parameters perform interviews with management and specific agencies or groups as directed by Plan Administrator or Investment Committee; Review of the universe of vendors in the marketplace to determine which would be appropriate candidates for the Client's Plan as identified by Plan Administrator and Investment Policy. BSFG shall identify a minimum of 8 - 10 providers. Provider Analysis, which entails a compilation of the RFP responses; summarized into a presentation and Initial Vendor Spreadsheet incorporating a review of the provider's recordkeeping I administration capabilities; investment offerings; and education I communication abilities. The Analysis is presented to Client's Plan Administrator committee so that the search may be narrowed to providers for formal Provider Analysis. COMPENSATION City shall pay, and Consultant shall accept as total payment for all services and costs of preparing the two comprehensive quarterly investment analyses, a fee of $2500 for each such analysis. City shall pay, and Consultant shall accept as total payment for all services and costs relating to preparation, dissemination and preliminary review or responses to the Request for Proposal a fee of $5,000. Total compensation for all services provided pursuant to this Agreement shall not exceed $10,000.00. 8 , C!1Y SA PAYROLL Fax:714-547-5633 . Aug 32005 11:24 P.Ol ) EXHlBrr B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY -=" C=p~y .~<: fir", M"LH-{ JJtSI"'''N''' Co"1''''r This endorsement modifies Such insurance as is afforded by the provisions of Policy # ?~ - Y Ir - 'liP!'.;/.. 6- relating to the following: I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses perfonned by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is affOrded by this policy is primary and is not additional to Or contributing with any other insurance carried by or for the benefit ofthe additional insureds. 3. This insurance applies separately to each insured 'lgainst whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right whiCh such person or organization would have as a Claimant ifnot so inclUded. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in Coverage Or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion Oflhe fOllowing, inClUding countersignature. is required 10 make thi, endorsement effective) Effective Ju L Policy # Issued to , this endorsement fonn as a part of -17 ~ t~ rail t.u;u Named ur.e4 01 . Countersigned by lJJ /' ~.6~ftd Representative I I {I /I J~L1 (;4V'r ....E::"- II"'\,;1\. r c ut" INSUfotAN~F - " 87~25/2BB5 B2: 41 714544573B L.A TCiU~ETTE ST {HE F AP PAGE B1 CERTIFICATE OF INSURANCE o STATE FARM FIRE AND CASUALlY COMPANY, Bloomington, illinois 121 STATE FARM GENERAL INSURANCE COMPANY, Bloomington. Illinois o STATE FARM FIRE AND CASUALlY COMPANY, Scarborough, Ontario o STATE FARM FLORIDA INSURANCE COMPANY, Wlnt.r Haven, Florida o STATE FARM lLOYDS, Dallo$, Texas in$ures the following pOlicyhoider for the coverages indicated b.low: Policyholder John Campbell r DBA Benefit Fundi",9' Service Group ';a. ,..,Wh~~" This certifies that Address of pollcyholdar location of operations. DeSCription of operations 2040 Main Street St€ 150, Irvine, CA 9261'1 The policiea lIated below have been issued to tile policyholder for the policy periods shawn. The insurance described in the~ policies is subject 10 all the lerms, exciusions, and ccnd~ions of those policies. The Iim~ of liability shown may have been reduced by any paid claims. POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE E~tiv& Date : ExpIl1IIfon DatI9 (at OOginnlng of policy period) 92-YG-4106 2 G Comprehensive 7/08/05 , 7/08/06 80DIL Y INJURY AND , .8,:~i~.~~~.~!~bil!!>, ......... _"h. .... ....h ..Lmoo.m........ PROPERTY DAMAGE . - This insu-mnce- i';Ciude.A:. -. o Products. Completed Operalions o Contreclual Liability Each Occurrenca $?,OOO,OOO o Pen:onallnJury o Advertising Injury General Agg",gate $!, 000, 000 0 0 Products - Compieted $101,900 0 Operations Aggregate POLICY PERIOD BODilY INJURY AND PROPERTY DAMAGE EXCESS LIABILITY Effective Data : Ellp/r.dIon PaID (Combined Single Limn) o Umbrella Each Occurr&nce $ 5000 o Olher , Aggregate $ POLICY PERIOD Part I - Workers Compensation _ Slatutory Effective Date i Elcplr.lllorl Dale Workers' Compensation , Part II - Employers liability , and Employe", liebility , Each Accid.nt $ , : Disease - Each Employ.e $ , Disease - Policy Umit $ , POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Dale : ExpIl1IIfcn PaID (ot beginning of policy periOd) : : : TilE CERTIFICATE OF INSURANCE 18 NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATlVEL Y AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. Name and Address of Certificate Holder If any of Ihe described policies are canceled before lheir expiration date, Slele Farm willlry to mail a wrftlen notice 10 the certificate hold.r 30 days before cancellation. If however. we fail to mail such notice, no obligation or Ii bllity will be Imposed on State Fa lis a en or Ie r.senlallYe (Additional ~n3ured) City of Santa Ana 20 Civic Center. Pl~~a Santa Ana, CA 92701 SIgnature of AUlhortzed Representative AGENT irlle Ken L~ Tou.r.ette Agenl. Name Telephone Numbe.- 7).4/541- 3 7 7 9 Agent's Code $temp Agont Cod. 8906 AFO Codo "41 8 1125/05 Date 658..gg4 a.S R~. 11-09-20OA Prlnted In U.S.A. CHECKLIST FOR PROCESSING AGREEMENTS AND AMENDM~t.JTS_" L ", ,'\ 9'''' ,',l .;; TO: CLERK OF THE COUNCIL OFFICE , <''\ ,'\ 1 ,L. FROM: DEPT.: finC\\'\(l'- cmd MaV\G1CieI'Hel1~ Se,V\I(teS . MAIL STOP: M-n lll({loY CONTACT PERSON: ~cAc;\it O\A~IA.f'. EXT.: AGREEMENT NUMBER (if amendment): A / N I\IIA AMENDMENT NUMBER (if applicable): COUNCIL APPROVAL DATE: o 1ST o 2ND o 3"D o NIA AMOUNT: 0 OVER $25,000' (A) Ii' UNDER $25,000' (N) NAME OF CONSULTANT: 0eV\eh\: fUVlG\[Vlq b,VDUP .1..\11(, , TERM OF AGREEMENT: EFFECTiVE DATE: 1UVI\AlAV'I \0, ~O()l INSURANCE REQUIRED: o NO (Provide City Attorney Office approval) roi YES o AUTO o PROFESSIONAL LIABiLITY TERMINATION DATE: lAlIOI'! (0 IY\ple.hilVl O{ Se.YV (c.e.~ o CGL (Commercial General Liability) o WORKERS COMPENSATION (INSURANCE APPROVAL REQUIRED BY CAO PRIOR TO SUBMITTING TO COTC) SIGNATURES REQUIRED: o VENDOR 0 AGENCY (UNDER $25,000*) IiII CITY ATTORNEY 0 OTHER CO"""", iJo '1S<<~o IS ""JZ4<!7 - r FOR CLERK OFFICE USE ONLY: o PROCESS o DO NOT PROCESS o MISSING CONTACT/PROJECT MANAGER INFORMATION o MISSING SIGNATURES o NEEDS COUNCIL APPROVAL o OTHER ADDITiONAL REMARKS: r- -- -'-~----..- * Charter amendment effective December 21, 2006 for City Manager contract authority increase.