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HomeMy WebLinkAboutContract 50845 CITY SECRETARY CONTRACT N0. Og ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 This Consulting Agreement(this"Agreement")is made on thisl\-V�,day of '2018,by and between Gallagher Benefit Services, Inc., a Delaware corporation ("Gallagher" and City of Fort Worth, (the"Client"). The Client wishes to enter into a consulting relationship with Gallagher with the terms and conditions set forth in this Agreement,and Gallagher is willing to accept such a consulting relationship. In consideration of and in reliance upon the previous paragraph and the terms and conditions contained in this Agreement,the Client and Gallagher agree as follows: 1. Engagement The Client engages Gallagher as an employee benefits consultant as stated in this Agreement and Gallagher accepts this engagement. During the time that Gallagher is performing services for the Client under this Agreement, and for all purposes outlined in this document, Gallagher's status will be that of an independent contractor of the Client. z Term and Termination The Effective Date of this Agreement is April 12,2018.The term of Gallagher's engagement under this Agreement(the"ConsultingPeriod")will begin as of the Effective Date and will remain in effect until completion of the services set forth below. Either party may terminate this Agreement by giving the other party thirty(3 0)days prior written notice of its intent to terminate. In the event such termination is effective during the Consulting Period, Client shall be responsible to Gallagher for any services performed prior to the date of termination. 3. Services Gallagher commits to completing the 2018 Actuarial Audit of the City of Fort Worth's Employees' Retirement Fund. More details are listed in Exhibit B of this agreement. 4. Compensation Subject to any changes as may be mutually agreed by the parties, Gallagher will receive, as compensation for services listed in Section 3, a fee not to exceed $30,000 to be paid upon completion of the services described in Section 3. Additional services not listed in Section 3 will result in additional fees to be mutually agreed by the parties prior to commencement of the service(s). Any variation from the original fee estimate will be discussed with Client prior to commencing with the required work. Any compensation described above and disclosed to it does not constitute a conflict of interest and the Client expressly waives any claims alleging any such conflict of interest. For additional information regarding Gallagher compensation, please see our revenue disclosure policy and schedule set forth in Exhibit A. - - �� F OFFICIAL RICORIa C- CITY SECRETARY ,n z C-) �' FT.WORTH,TY ti c o 2G4iagher Actuarial Consulting Agreement City of Fort Worth Ca (D Page 1 of 7 �� Wd zl ����� ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 S. Client Obligations and Responsibilities To enable Gallagher to perform its obligations under this Agreement, Client shall at no charge to Gallagher: (a) Make available, as reasonably requested by Gallagher, timely management decisions, complete and accurate documentation and information so that the Services contemplated by this Agreement may be accomplished. (b) Furnish Gallagher with complete and accurate data information to complete the valuation as soon as reasonably possible. (c) Exercise all discretionary authority and control over the management and disposition of Plan assets to the exclusion of Gallagher. Gallagher shall not exercise any authority or control with respect to the management or disposition of the assets of the Plan. Gallagher shall have no responsibility or liability with respect to any funding of Plan Benefits. (d) Perform any other administrative functions not expressly assumed by Gallagher hereunder. 6. Performance and Scope (a) Representations and Warranties. Each party represents, warrants and covenants to the other that: (i) it has full power and authority to make, execute, deliver and perform its obligations under this Agreement; (ii) the performance of its obligations pursuant to this Agreement shall be in accordance with all applicable laws; (iii) this Agreement has been duly executed and delivered by an authorized representative of such party and constitutes the legal,valid and binding obligation of such party,enforceable against such party in accordance with its terms; and (iv) there are no other agreements presently in force which would encumber or prevent either party's compliance with any terms of this Agreement. (b) Standard of Care. Gallagher shall perform its duties, responsibilities and obligations in accordance with generally accepted industry standards and with the care, skill,prudence and diligence that a prudent benefits consultant or actuary acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims under the circumstances then prevailing. (c) Reliance. In the performance of its duties, Gallagher may rely upon, and will have no obligation to independently verify the accuracy, completeness, or authenticity of, any written instructions or information provided to Gallagher by the Client or its designated representatives and reasonably believed by Gallagher to be genuine and authorized by the Client. Gallagher shall incur no liability resulting from Gallagher's reasonable reliance on such instructions or information. (d) No Practice of Law. Gallagher will not be obligated to perform, and the Client will not request performance of, any services which may constitute unauthorized practice of law. The Client will be solely responsible for obtaining any legal advice, review or opinion as may be necessary to ensure that its own conduct and operations, including the engagement of Gallagher under the scope and terms as provided herein, conform in all respects with applicable State and Federal laws and regulations (including ERISA, the Internal Revenue Code, State and securities laws and implementing regulations) and, to the extent that the Client has foreign operations,any applicable foreign laws and regulations. Gallagher Actuarial Consulting Agreement City of Fort Worth Page 2 of 7 ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 (e) Conflict of Interest. Gallagher's engagement under this Agreement will not prevent it from taking similar engagements with other clients who may be competitors of the Client. Gallagher will, nevertheless,exercise care and diligence to prevent any actions or conditions which could result in a conflict with Client's best interest. (f) Subcontractors. Gallagher may cause another person or entity, as a subcontractor of Gallagher,to provide some of the services required to be performed by Gallagher hereunder; provided that Gallagher shall remain responsible for all acts and omissions of any such subcontractors (each of which shall be bound by Gallagher's obligations under this Agreement). Gallagher shall seek prior written approval from Client for any subcontractors providing substantive consulting, professional or managerial services. Prior written approval shall not be required for clerical, office, secretarial, IT back-up, administrative or similar support services. 7. Confidentiality (a) Client Information. Gallagher recognizes that certain confidential information may be furnished by the Client to Gallagher in connection with its services pursuant to this Agreement ("Confidential Information"). Gallagher agrees that it will disclose Confidential Information only to those who, in Gallagher's reasonable determination, have a need to know such information. Confidential Information will not include information that(i)is in the possession of Gallagher prior to its receipt of such information from the Client, (ii) is or becomes publicly available other than as a result of a breach of this Agreement by Gallagher, or (iii) is or can be independently acquired or developed by Gallagher without violating any of its obligations under this Agreement. However, disclosure by Gallagher of any Confidential Information pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction,judicial or administrative agency or by a legislative body or committee will not constitute a violation of this Agreement. (b) Use of Names; Public Announcements. No party will use the names, logos,trademarks or other intellectual property of the other party without its prior written consent. Except as may be required by law,no party will issue any press releases or make any public announcements of any kind regarding the relationship between the parties without the other party's prior consent. (c) Aggregated Data. Gallagher shall own any non-identifying,aggregated and statistical data that might be derived from providing services to Client(the "Aggregated Data"). Nothing herein shall be construed as prohibiting Gallagher from utilizing the Aggregated Data for purposes of operating Gallagher's business. Gallagher shall not: (i) disclose to any third party any Aggregated Data that reveals Client's identity or its Confidential Information; or(ii)reveal the identity,whether directly or indirectly, of any individual whose specific data might be used by Gallagher on behalf of Client. 8. Indemnification In performing its obligations under this Agreement, Gallagher neither insures nor underwrites the liability of the Client's Plan. Gallagher shall have no duty or obligation to defend against any legal action or proceeding brought to recover a claim for Plan benefits or any causes of actions for expenses or liabilities incident to the Plan. Gallagher shall, however, make available to Client and its counsel, such evidence relevant or relates to such action or proceeding as Gallagher may have as a result of its services on behalf of Client. Gallagher shall promptly notify in writing Client or its designated legal counsel of any legal actions that involve the Plan or Client. Gallagher Actuarial Consulting Agreement City of Fort Worth Page 3 of 7 ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 9. Gallagher Limitation of Liability LIMITATION OF LIABILITY: Notwithstanding anything contained herein to the contrary, even if advised of the possibility of loss,liability,damage or expense,Gallagher shall not be liable for any indirect damages, including any lost profits, data, business, goodwill, anticipated savings, opportunity or use or other incidental or consequential damages. Furthermore: i. Gallagher shall not be responsible for damages caused by acts of Client's employees, representatives, agents, subcontractors, vendors, or suppliers. ii. Gallagher's aggregate liability under this Agreement, if any, to Client for claimed loss or damage arising under this Agreement shall not exceed $20,000,000. iii. Client hereby expressly acknowledges and agrees that in view of the amount of the fees paid or to be paid hereunder, the limitations of liability in this Section 9 are in all respects fair and reasonable and reflect a duly considered allocation of risk between the Parties. iv. Notwithstanding the foregoing, this Section 9 shall not limit any liability for the personal injury to or death of any individual or physical property damage directly caused by Gallagher or beyond the extent to which the limitation would be prohibited by applicable law. 10. Notices Any notices, requests and other communications pursuant to this Agreement will be in writing and will be deemed to have been duly given, if delivered in person or by courier,telegraphed, or by facsimile transmission (provided that the sender received electronic confirmation of receipt by recipient) or sent by express,registered or certified mail,postage prepaid, addressed as follows: If to the Client: City of Fort Worth 1000 Throckmorton Fort Worth, TX 76103 Attention: If to Gallagher: Gallagher Benefit Services,Inc. 3600 American Boulevard West, Suite 500 Bloomington,MN 55431 Attention: Bruce Johnson Either party may,by written notice to the other, change the address to which notices to such party are to be delivered or mailed. Gallagher Actuarial Consulting Agreement City of Fort Worth Page 4 of 7 ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 11. Miscellaneous (a) Severability. The various provisions and subprovisions of this Agreement are severable and if any provision or subprovision or part thereof is held to be unenforceable by any court of competent jurisdiction, then such enforceability will not affect the validity or enforceability of the remaining provisions or subprovisions or parts thereof in this Agreement. (b) Entire Agreement, Amendment, Counterparts. This Agreement, including Exhibit A hereto, constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether oral or written, between the parties regarding the subject matter hereof. This Agreement may be modified or amended only by a written instrument executed by both parties. Furthermore, this Agreement may be executed by the parties in several counterparts, each of which shall be deemed to be an original copy. (c) Governing Law;Rule of Construction. This Agreement will be construed, interpreted and enforced in accordance with the laws of the State of Texas without giving effect to the choice of law principles thereof or any canon, custom or rule of law requiring construction against the drafter. (d) Successors, Survival of Provisions. This Agreement shall be binding upon and shall inure to the benefit of all assigns, transferees and successors in the interest of the parties hereto. Sections 7, 8 and 9 will survive the termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Consulting Agreement to be duly executed on the date first written above. City of Fort Worth,TX By: �P Nam . i-Sv�sQw Ma Vtt S kPPROVED AS TO FORM AND LEGALITY: Title: 4 6 -e ;ITY ATTNNFGALLAGHER BENEFIT SERVICES,INC. ,o Eq R `* me: Bruce Johnson Title: Area Sr.VP.,Actuarial&Retirement Services OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Gallagher Actuarial Consulting Agreement tity of Fort Worth Page 5 of 7 Contract Compliance Manager: By signing I acknowledge that 1 am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Margaret Wise/ Name of EmployeJSijnb6re Assistant HR Director Title ❑ This form is N/A as No City Funds are associated with this Contract Printed Name Signature ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 EXHIBIT A COMPENSATION DISCLOSURE STATEMENT One of the core values highlighted in The Gallagher Way states, "We are an Open Society,"and our open society extends to the compensation Gallagher receives. As our industry moves toward complete disclosure of all forms of compensation,we embrace this effort and are committed to leading the way. To achieve this purpose, we have disclosed the fee we will earn for the actuarial consulting services Gallagher will render your behalf. It should also be noted that: • Gallagher is not an affiliate of the insurer or vendor whose contract is recommended. This means the insurer or vendor whose contract is recommended does not directly or indirectly have the power to exercise a controlling influence over the management or policies of Gallagher. • Gallagher's ability to recommend other insurance contracts or vendors is not limited by an agreement with any insurance carrier or vendor and Gallagher is effecting the transaction for applicable plan(s) in the ordinary course of Gallagher business. Thus, pertinent transaction(s) are at least as favorable to the applicable plan(s)as an arm's length transaction with an unrelated party. • Gallagher is not a trustee of the plan(s) and is neither the Plan Administrator of the plan(s), a Named Fiduciary of the plan(s),nor an employer which has employees in the plan(s). For Employers and Plan Sponsors Subject to ERISA: This Disclosure Statement is being given to the Client (1) to make sure Client knows about Gallagher's and Gallagher affiliates' income before purchasing the insurance product and(2)for plans subject to ERISA,to comply with the disclosure,acknowledgment and approval requirement of Prohibited Transaction Class Exemption No. 84-241,which protects both Client and Gallagher'. Disclosure must be made to an independent plan fiduciary for the ERISA Plan(s), and Client acknowledges and confirms that that this is a reasonable transaction in the best interest of participants in its ERISA Plan(s). For more information on Gallagher's compensation arrangements,please visit www.aig.com/compensation. In the event a client wishes to register a formal complaint regarding compensation Gallagher receives,please send an email to Compensation_Complaints@ajg.com. 'Which allows an exemption from a prohibited transaction under Section 408(a)of the Employee Retirement Income Security Act of 1974 (ERISA). 'In making these disclosures,no position is taken,nor is one to be inferred,regarding the use of assets of a plan subject to ERISA to purchase such insurance. Gallagher Actuarial Consulting Agreement City of Fort Worth Page 6 of 7 ACTUARIAL SERVICES CONSULTING AGREEMENT 2018 EXHIBIT B SCOPE OF SERVICES Gallagher will complete the following steps of the audit process as outlined in Code Section 802.1012: 1. Not later than the 30'day after of the completion of the audit,copies of the preliminary draft report must be provided by Gallagher to the Fund for purposes of discussion and clarification. 2. Not later than the 30th day after receiving the report the Fund may submit any response that the Fund wants to accompany the final audit report. 3. Not earlier than the 31St day after the date on which the preliminary draft is submitted to the Fund, or later than the 601 day, Gallagher must submit to the City the final audit report that includes the audit results and any response received from the public retirement system. 4. At the first regularly scheduled open meeting after receiving the final audit report, the governing body of the governmental entity(the City) shall (1) include on the posted agenda for the meeting the presentation of the audit results,(2)present the final audit report an any response from the Fund, and (3) provide printed copies of the final audit report and the response from the fund for individuals attending the meeting. 5. The City must submit a copy of the final audit report to the State Pension Review Board not later than the 30'day after the date the final audit report is received by the City. Fees for this project will be capped at$30,000. Our fee quotes for this project are not to exceed figures to ensure that you will not receive unexpected fee charges during the course of the guarantee period. Our practice is to deliver services that ensure client satisfaction. We will respond to all questions and inquiries related to our work without incurring additional time charges. We believe our clients should never be concerned to call us because of the threat of incurring time charges for the phone call. If additional charges are necessary,we will review the expected scope of additional services with you and commit to a fixed fee for the requested service. Gallagher Actuarial Consulting Agreement City of Fort Worth Page 7 of 7 ADDENDUM TO CUSTOMER AGREEMENT BETWEEN THE CITY OF FORT WORTH AND GALLAGHER BENEFIT SERVICES, INC. This Addendum to Customer Agreement("Addendum")is entered into by and between the Gallagher Benefit Services, Inc., a Delaware corporation ("Seller") and the City of Fort Worth ("City"), collectively the "parties", for a purchase of licenses. The Contract documents shall include the following: 1. The Actuarial Services Consulting Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Actuarial Services Consulting Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Termination. a. Convenience.Either City or Seller may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b. Breach.If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten(10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Seller of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, City shall pay Seller for services actually rendered up to the effective date of termination and Seller shall continue to provide City with Addendum to Actuarial Services Consulting Agreement Page 1 of 5 services requested by City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, Seller shall provide City with copies of all completed or partially completed documents prepared under the Agreement. In the event Seller has received access to City information or data as a requirement to perform services hereunder, Seller shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 2. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 3. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County,Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 5. Indemnity. To the extent the Agreement requires City to indemnify or hold Seller or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 6. LIABILITY- SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCL UDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CA USED BY THE MALFEASANCE OR INTENTIONAL MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 7. GENERAL INDEMNIFICATION - SELLER HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS,SER VANTSAND EMPLOYEES,FROMAND A GAINSTANYAND ALL CLAIMS OR LAWSUITS OFANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO SELLER'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY, INCL UDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF SELLER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. Addendum to Actuarial Services Consulting Agreement Page 2 of 5 8. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable,City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 9. Confidential Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.In the event there is a request for information marked Confidential or Proprietary, City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 10. Addendum Controlling. If any provisions of the attached Agreement,conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of City, the terms in this Addendum shall control. 11. Immigration Nationality Act. City actively supports the Immigration&Nationality Act(INA)which includes provisions addressing employment eligibility,employment verification, and nondiscrimination. Seller shall verify the identity and employment eligibility of all employees who perform work under the Agreement. Seller shall complete the Employment Eligibility Verification Form(I-9),maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under the Agreement. Seller shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Seller shall provide City with a certification letter that it has complied with the verification requirements required by the Agreement. Seller shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate the Agreement for violations of this provision by Seller. 12. No Boycott of Israel. Seller acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Seller certifies that Seller's signature provides written verification to City that Seller: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 13. Right to Audit. Seller agrees that City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Seller involving transactions relating to the Agreement. Seller agrees that City shall have access during normal working hours to all necessary Addendum to Actuarial Services Consulting Agreement Page 3 of 5 Seller facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Seller reasonable advance notice of intended audits. (signature page follows) Addendum to Actuarial Services Consulting Agreement Page 4 of 5 Executed this the it-- day of , 2018. CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person --� responsible for the monitoring and administration of this contract, including ensuring all By: performance and reporting requirements. ame.N ofy, A Q ql i Assistant City Manager Date: ((j t QC By: ` Approval Recommended: Title: l `t Approved as to Form and Legality: By: ame: � Title: y NE67e: Jo B. S ong Attest: Title: Assist t City Attorney Contract��u^thorization: M&C: p By: .FORT ame: WY e Title: City Secreta SELLER: Gallagher Benefit Services, Inc. By: &--- Name: Bruce ohnson Title: Area Sr. VP., Actuarial & f Retirement Services Date: OFFICIAL RECORD CITY SECRETAP , FT.WORTH, Addendum to Actuarial Services Consulting Agreement Page 5 of 5