Loading...
HomeMy WebLinkAboutBENEFIT FUNDING SERVICES GROUP 6 - 2013\1C? needed - N-2013-100 Pry': ?-? ?,b l ®? CONSULTANT AGREEMENT ZQ13 THIS AGREEMENT, made and entered into this 1 st day of July, 2013 by and between Benefit Funding Services Group, Inc a California Corporation (hereinafter "Consultant"), 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"). RECITALS A. The City desires to retain a Consultant having special skill and knowledge in the field of employee deferred compensation plan analysis and assessment. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant 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: SCOPE OF SERVICES Consultant shall perform analysis, assessment and advisement services regarding the Santa Ana Employee Deferred Compensation Program, as set forth in Exhibit A, attached hereto and incorporated by this reference. Consultant may be requested to provide additional financial advising or implementation services, at the written request of the Executive Director of Finance and Management Services ("FMSA"). 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its Investment Advisement services, a quarterly fee of $4,750.00. Additional services provided at the request of the City will be paid in conformance with a written proposal approved by the Executive Director. The total sum to be expended under this Agreement shall not exceed $19,000.00, 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 July 1, 2013 and terminate on January 31, 2014, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon the approval of the Executive Director of FMSA. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire tern 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-amployee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant 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, Consultant 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, Connnercial General Liability insurance is not required. b. Worker's Compensation Insurance, In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to connmenping the performance of the work tinder this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. G. 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 Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in frill 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold hanuless the City, its officers, agents, employees, Consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant 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 clahns 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 Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant 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 lnforiation" 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 Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant 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 railed 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 telefacsinule (714) 647-6956 With courtesy copies to: Executive Director of Finance acid Management Services City of Santa Ana 20 Civic Center Plaza (M-17) P.O. Sox 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 To Consultant: 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 asset 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 Consultant, 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 Consultant. 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 Consultant 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 Inasnmch as this Agreement is intended to secure the specialized services of Consultant, Consultant 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. Asa 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 pct-poses 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. DISCRLMINATION 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, termunation 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 of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, Califon,&, 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 bereunder 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 netify the City irmnediately 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, hold by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be inoorporated as if frilly set forth in the body of this Agreement. lir IN WITNESS WBBRBOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D, HUIZAR Clerk of the Council CITY VOSA TA ANA KEVIN 0 ROURKE Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By Lisa Stuck Assistant City Attorney FOR APPROVAL: 11 FRANCISCO GUTIERREZ Executive Director of the Finance and Management Services Agency BENEFIT FUNDING SERVICEA GROUP, INC. CAMPBELL 6?t¢S?c?.2rY?ti ID9 EXHIBIT A SCOPE OF SERVICES 1. Investment Advising Fee: NTE $19,000 • Prepare up to four Quarterly Investment Analysis Reviews for 457 Deferred Compensation Plan and meet with the Plan Investment Committee up to four times. Said review shall 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; • 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 • Recommend possible fund alternatives when, in conjunction with the Investment Committee, it is determined a change in fund line-up is necessary. • Perform fund searches when necessary and make "watch list" recommendations • Assist in fund change implementations with vendor, when applicable • Prepare annual cost analysis and negotiate with vendor to potentially lower overall costs and recapture any excess revenues on behalf of the Plan, if applicable • Draft and maintain Investment Policy Statement • Draft Committee Charter for adoption by City Council to delegate authority to Committee ' CERT'IFICAT'E OF LIABILITY INSURANCE ? ? eimm ex+,r,p axlaaJaaxa THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THUS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED DY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CON ACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: It the certificate holder Is an ADDtiJONAl:-U4SURED, Ohs palloyQas) mua@ be: endorsed. if SUDRO ATiON IS WAI ED, subject to the terms and conditions of thin policy, cartalh policies may require An endomement A statement on this Certificate does not confer rights to the cartiRicate holder In lieu of such andomemardfal. }; _5x4 496-4040 OF ANY TO IS SUBJECT TO ALL THE ;(s eENEFAI LWaiLlip $.. C1111MERCIALDENERALUASIUTY .? "AIMSMADF ($ OCCUn .... ANY AUTO ALLOYMED ALMS HREDA.rrOS CCCUR Yrn o NIA xasv anea i 51, 000, 000 sx„aaa,aaa sea aaa 'MPOP AUO l S3, 000, 000 S .L T,x,,aaA. oaa @Parr Wrca4 S (Ear&txNEOnt) 5:;... E ?k0M19 J,- I 4(ItNC?k'a ray 000 'ity Of Santa Ann 0 Civic center plaza ants, Ana, CA 02701-4050 $HDULD ANY OPTHEABOVE DESCRIBED POLICIES SE CAHCt:LLED NEPORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DEUVHRED IN ACCORDANCE WITH THE POLICY PROVISIONS. AOORD25(2dtOMS) TheACOROHome -and-folic are- registered Markaof ACORD Vo 041"2ES Oarthaidev 0, 00