HomeMy WebLinkAboutBENEFIT FUNDING SERVICES GROUP, INC. 1 - 2005
. i,~SURANCE ON FILE
-WORK MAY PROCEED
UNTIL iNSURANCE EXPIRES
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. CLERK OF COUNCIL
DATE ~ - /1. 05
THIS AGREEMENT, made and entered into this f"^- day of A~~iA'S'/ ,2005 by
and between Benefit Funding Services Group, rnc a California Corporation (Ii remafter
"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").
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N-2005-093
CONSULTANT AGREEMENT
RECITALS
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 of this 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 ofthe 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 those services as set forth in Exhibit A (Letter Dated April 22,
2005 from John C. Campbell to Eddie Duque) to this Agreement
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 $ 5,000.00 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 June 30,
2006 unless terminated earlier in accordance with Section 12, below. The term of this
Agreement may be extended upon a writing executed by the Director of Finance and the City
Attorney.
4. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee ofthe City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, ajoint 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 ofthis 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. Commercial General Liability Insurance. Contractor shall maintain commercial
general liability insurance naming the City, its officers, agents, volunteers, and employees as
additional insured( s) and shall include, but not be limited to protection against claims arising
from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Contractor's operations in the performance of
this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance
shall be not less than the following: single limit coverage applying to bodily and personal injury,
including death resulting therefrom, and property damage, in the total amount of $1 ,000,000 per
occurrence. Contractor shall supply City with a fully executed additional insured endorsement in
substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall
be approved in form by the City Attorney.
b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non-owned automobiles.
c. 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.
d. If 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.
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e. 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.
f. 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
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 1 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 of the 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
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ofthe 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
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 (714) 647-6956
With courtesy copies to:
Executive Director of the Finance Department
City of Santa Ana
20 Civic Center Plaza (M-17)
P.O. Box 1988
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
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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,
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If sent by mail, any notice, tender, demand, delivery, or other
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, any notice, tender, demand, delivery, or
other 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
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
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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 ofrace, 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 and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws ofthe State of
California. This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this 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.
15. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this 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 ofthe 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 of this
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 of the terms of this Agreement, and shall
indemnify 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.
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. .
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
\
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ATRICIA E. HEALY
Clerk of the Council
aA~
DAVID N. REAM
City Manager
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APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City A;t~,m~y i. U J
By: IL ~
Michael Vigliotta
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
CONTRACTOR
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Francisco Gutierrez
Executive Director ofthe
Finance and Management
Services Agency
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Employer ID # or Individual SS #
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Apri122, 2005
Mr. Eddie Duque
Senior Management Analyst
Finance and Management Services
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92707
Dear Eddie:
It was a pleasure speaking with you this morning.
As promised, a proposal to analyze and benchmark the existing investments in the City of
Santa Ana's Deferred Compensation Plan (the "Plan"), along with a Fiduciary Structure and
Cost Assessment is outlined below.
Our consulting includes:
. A comprehensive analysis of the Plan's current investment options including a
detailed examination of each mutual fund offered. Individual fund performance
numbers versus their respective category and index (including an analysis ofthe
appropriateness of such categories and indices), manager style drift, risk/return,
standard deviation, Sharpe ratio, upside and downside capture and fund allocation will
all be evaluated
. An in-depth portfolio summary, including Plan level performance appropriately
weighted per the current asset allocation in the Plan versus similarly weighted
benchmark and category returns. Portfolio summary also captures Plan level style
analysis
.. . An analysis of the Plan's asset allocation by fund andUl;\,ierJying.sectors to determine
~asset class utilization by Plan participants and to un~i1~r1he:aIn01.iilt of overlap (if
any) .that is occurring.' . . .
· Recommendations of possible alternatives to fundS and/or benchmarks where
deficiencies (if an.y) exist
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. A detailed Fiduciary Structure and Cost Assessment outlining the current fee structure
and arrangement between the Plan and the retirement plan provider. This analysis will
break out service costs and management costs to provide complete transparency in all
Plan-related expenses
. A comparison of overall Plan fees compared to other similarly sized plans (customized
"industry average")
. A comparison of per-participant costslrevenues compared to industry average
. An analysis of fund transaction costs
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. A detailed analysis of revenue distribution to provider(s) and all related parties
. An explanation of alternate options for revenue distribution, if applicable
. An in-person meeting to present our fmdings, make recommendations as appropriate,
and answer questions
Our cost for the above Due-time consulting services to the City of Santa Ana is $5,000.00.
Thank you for taking the time to discuss the services Benefit Funding Services Group has to
offer. I am confident our services can bring a rremendous amount of value to the City of
Santa Ana Retirement Plan fiduciary processes.
John C. Campbell
Principal
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Aug 32005 11:24
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EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company .5f7I.:t fi;n'YI b-07Lrw( fl15kUW(,( CoJ1'fit1-Uf
This endorsement modifies such insurance as is afforded by the provisions of Policy
#?.J.. y&-' Lflil(;'.:2.. 6- relating to the following:
1. 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 performed 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 narned 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 of the
additional insureds.
3. This insurance applies separately to each insured against 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 if not so included.
4. With \espect to the additional insureds, this insurance shaH 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 of the following, including countersignature. is required 10 make fbi, endorsement
effective.)
. this endorsement form as a part of
Countersigned by
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Au~1'ed Representative
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LATOURETTE STATE FAR
CERTIFICATE OF INSURANCE
o STATE FARM FIRE AND CASUALTY COMPANY, Bloomington,lIIlnois
181 STATE FARM GENERAL INSURANCE COMPANY, Bloomington. Illinois
o STATE FARM FIRE AND CASUALTY COMPANY. Scarborough. Ontario
o STATE FARM FLORIDA INSURANCE COMPANY. Wlntar Haven, Florida
o STATE FARM LLOYDS, Dallas. TeXas
insures the following policyholder for tha coverages indicated below:
Policyholder John campbell, DM Benefit FUnding Service Group
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This certifies lhal
Address of pOllcyholdar
loC:8tion of operations
DescriptIon of operations
2040 Main Street. Ste 150, rrvine, CA 926J.4
PAGE 01
The policias listed below h.ve been issued to the policyholder for the policy periods shown. The insurance described in lhese policies is
subjecllo all the tarms exclusions and cond~ions of those policies The Iim~ of liability shown may h.ve been reduced by any paid claims.
POLICY PERIOD LIMITS OF LIABILITY
POLICY NUMBER TYPE OF INSURANCE Effe<:tive Dale ; E>qlInotlon Da1lo [at b9ginnlng 01 policy period)
92-YG-4106 2 G Comprehansill8 7/0B/05 , 7/08/06 BODILY INJURY AND
.Bu.'..i~.~~~.Liabil!\}'. ........ .m____.....__..L h......__ __..... PROPERTY DAMAGE
. Thi"s insumnce- i~ci~des:. . o ProduclS . Completed Operations
o Contractual Liability Each Occorrenoe p, 000, 000
o Personal InJury
o Adll8rtising Injury General Aggregate $ ',000,000
0
0 Products - Compieled $101,900
0 Ooaratlons Aaaregate
POLICY PERIOD BOOIL Y INJURY AND PROPERTY DAMAGE
EXCESS LIABILITY Effective Data : EllDlr.otion Dale (Combined Single Li",~)
o Umbrella : Each Occurrence $ 5000
o Other Aggregate $
POLICY PERIOD Part I - Workers Compensation . Slalutory
Effectl.... Dam : Explr.rtlon Dale
Workers' Compensation : Part II - Employers Liability
and Employers Liabiiity i Each Accident $
Disa..... Each Employea $
Diseass - Policy Umil $
POLICY PERIOD LIMITS OF LIABILITY
POLICY NUMBER TYPE OF INSURANCE Et'factlve Dale : E>qlInotlon Dale (at beginning 01 policy period)
:
:
:
THE CERTIFICATE OF INSURANCE 18 NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY
AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BV ANY POLICY DESCRIBED HEREIN.
Name and Address of Certificate Holder
(Addi tional ;r:n3u.red)
City of Santa Ana
20 Civic Center. Plaza
Santa Ana, CA 92701
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6SS..g94 a.S R~ 1'-0e..;z00t Printed In V.SA
If any of the described polloie. ara canceled befo",
Iheir ""plration date, Slate Farm will Iry 10 mail a
wrfften nolice 10 the certificate holder 30 days before
cancellation. If however. we fail to mail such notica,
no obligation or Ii bllity will be Imposed on State
Fa its a en or re resentativ
SIgnature of Authortz::ed Representetwe
AGENT
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TBI.pnaneNumbef ;14/541-]779
Ager1t',s Code $tsmp
Agent Code 8 906
AFO Cod. F418
7125105
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