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HomeMy WebLinkAboutContract 5976246-,) Gallagher Insurance Risk Management Consulting CSC No. 59762 ACTUARIAL SERVICES CONSULTING AGREEMENT This ACTUARIAL SERVICES CONSULTING AGREEMENT ("Agreement") entered into as of June 5, 2023 ("Effective Date") is between Gallagher Benefit Services, Inc., a subsidiary of Arthur J. Gallagher & Co., a Delaware corporation ("Gallagher") and the City of Fort Worth, TX ("Client"). Gallagher and Client desire to arrange for the provision of services by Gallagher to the Client as set forth herein. In consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto 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. 2. TERM AND TERMINATION. The term of this Agreement will commence on the Effective Date and shall remain in effect until completion of the services set forth below in accordance with this Agreement (the "Consulting Period"). Either party may terminate this Agreement for its convenience by giving the other party at least thirty (30) days written notice of its intent to terminate. Client shall be responsible to Gallagher for any services performed prior to the date of termination and Gallagher shall be responsible to Client to continue to provide services until the date of termination of this Agreement. Upon termination of this Agreement for any reason, Gallagher will be paid fees specified on the in -Exhibit B for work which is then in progress on a proportional basis, and expenses incurred through the effective date of such termination, and contingent upon Client's full payment for services and incurred expenses, Gallagher will deliver to Client any and all of its information, forms and documentation. 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. 3. SCOPE OF SERVICES. Gallagher will provide to Client the actuarial services, functions, or responsibilities as set forth in Exhibit A (the "Scope of Services") attached hereto for the Retirement Fund of the City of Fort Worth, TX, herein referred to as the "Plan". Additions or changes to the Scope of Services may result in additional fees, to be mutually agreed upon by the parties in writing prior to commencement of any added or changed service(s). 4. COMPENSATION. Client will pay Gallagher a fee for services rendered under this Agreement as set forth in the Exhibit B (the "Compensation Disclosure Statement") attached hereto. Client shall be responsible for all expenses incurred by Gallagher in the performance of its services under this Agreement, and will reimburse Gallagher for previously approved expenses within thirty (30) days of the date of Gallagher's invoice. Any amounts not paid when due will accrue interest at the rate of one percent (1 %) per month or the highest rate permitted by applicable law, whichever is less. Nonpayment of undisputed amounts due in full will constitute a material breach of this Agreement. Any variation from the not to exceed, total fees as stated in the Compensation Disclosure Statement will be discussed with Client prior to commencing with the required work. Client understands and agrees that all Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 1 of 10 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 6-, Gallagher Insurance Risk Management Consulting 14 compensation described in Exhibit B has been disclosed to Client and does not constitute a conflict of interest, and the Client expressly waives any and all claims alleging any such conflict of interest. In the event no funds or insufficient funds are appropriated by Client in any fiscal period for any payments due hereunder, Client will notify Gallagher 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 Client of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated, and services have been performed up to the termination. 5. CLIENT OBLIGATIONS AND RESPONSIBILITIES. To enable Gallagher to perform its obligations under this Agreement, Client shall at no charge to Gallagher: 5.1.As reasonably requested by Gallagher, Client will provide timely management decisions, and make available complete and accurate data, documentation, and information so that the Scope of Services contemplated by this Agreement may be accomplished. 5.2. 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. 5.3. Perform any other administrative functions not expressly assumed by Gallagher hereunder. PERFORMANCE AND SCOPE. 6.1 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. 6.2 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. 6.3 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. Any advice given by Gallagher is not intended to be nor shall should it be construed as legal advice. 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. 6.4 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. Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 2 of 10 6-, Gallagher Insurance Risk Management Consulting 4 6.5 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. CONFIDENTIAL & NON -IDENTIFYING INFORMATION. 7.1 Confidential Information. (a) As used in this Agreement, "Confidential Information" means any non-public, proprietary or personal data and information furnished by either party or its agents or representatives to the other party or its agents and representatives, whenever furnished and regardless of the manner or media in which such information is furnished, which the receiving party knows or reasonably should know to be confidential. Each party shall treat Confidential Information as confidential and only use it in the performance of its obligations under this Agreement. (b) The parties acknowledge that Confidential Information includes personal data provided to Gallagher by Client for the benefit of Client and/or its employees to facilitate the performance of services set forth in this Agreement or applicable Project Assignment. Both Parties also agree that the Confidential Information may include information that alone, or in combination with other information, uniquely identifies an individual. Client agrees that Gallagher is permitted to disclose and transfer Client's Confidential Information to Gallagher's affiliates, agents or vendors that have a need to know the Confidential Information in connection with the services provided under this Agreement (including insurance carriers, as necessary, for quoting and/or placing insurance coverages). Gallagher has established security controls to protect Client Confidential Information from unauthorized use or disclosure. For additional information, please review Gallagher's Privacy Policy located at https://www.ajg.com/privacy-policy/. (c) Both Gallagher and Client agree to comply with all state and federal laws, rules, and orders that relate to privacy and data protection which are, or which in the future may be, applicable to Confidential Information, the services or the performance of obligations under this Agreement. Upon request, Gallagher will cooperate with Client pursuant to applicable law(s) to comply with requests from individuals regarding their personal information. (d) Client is a government entity under the laws of the State of Texas and all documents held or maintained by Client are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that Client maintain records in violation of the Act, Client 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, Client shall promptly notify Gallagher. It will be the responsibility of Gallagher to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by Client, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 7.2 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. 7.3 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 Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 3 of 10 6-, Gallagher Insurance Risk Management Consulting 14 prohibiting Gallagher from utilizing the Aggregated Data for purposes of operating Gallagher's business. Gallagher shall not: (a) disclose to any third party any Aggregated Data that reveals Client's identity or its Confidential Information; or (b) reveal the identity, whether directly or indirectly, of any individual whose specific data might be used by Gallagher on behalf of Client. REPRESENTATIONS AND WARRANTIES. 8.1 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. 8.2 No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATION, EXPRESS OR IMPLIED, AND NO WARRANTY OR GUARANTEES ARE INCLUDED OR INTENDED BY GALLAGHER IN THIS AGREEMENT, OR IN ANY REPORT, OPINION, DELIVERABLE, WORK PRODUCT, DOCUMENT OR OTHERWISE. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY GALLAGHER CONCERNING THE MATTERS COVERED BY THIS AGREEMENT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR FROM A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. LIMITATION OF LIABILITY. 9.1. 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. 9.2. Furthermore, Gallagher shall not be responsible for damages caused by acts of Client's employees, representatives, agents, subcontractors, vendors, or suppliers. 9.3. Gallagher's aggregate liability under this Agreement, if any, to Client for claimed loss or damage arising under this Agreement shall not exceed $1,000,000 in the aggregate. 9.4. 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 are in all respects fair and reasonable and reflect a duly considered allocation of risk between the parties. 9.5. Notwithstanding the foregoing, this section 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. 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 Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 4 of 10 6-, Gallagher Insurance Risk Management Consulting 14 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. 11. GENERAL PROVISIONS. 11.1. Assignment and Subcontractors. Client may not assign this Agreement without Gallagher's prior written consent. Gallagher may deem it necessary to outsource or subcontract all or any portion of the services to be performed by it under this Agreement. If this is necessary, Client will be notified of this and has the right to request a professional of their choice. If the person chosen by the Client requires assistance from Gallagher, Client will be billed for Gallagher's time at its regular hourly rate. This Agreement shall inure to the benefit of, and shall be binding upon, both Gallagher and Client and their respective heirs, legal representatives and permitted assigns. 11.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of its obligations under this Agreement (other than payment obligations) as a result of flood, earthquake, storm, other act of God, fire, derailment, accident, labor dispute, explosion, war, act of terrorism, sabotage, insurrection, riot, embargo, court injunction or order, act of government or governmental agency or other similar cause beyond its reasonable control. 11.3. Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 11.4. Notices. Any notices, requests or other communications pursuant to this Agreement will be addressed to the party at its address listed below. Such notices will be deemed to have been duly given, (a) if delivered in person or by courier, upon delivery; (b) if sent by an overnight service with tracking capabilities, upon receipt; (c) if sent by registered or certified mail, postage prepaid, within five (5) days of deposit in the mail; or (d) if sent by electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal. If to Client: City of Fort Worth 1000 Throckmorton Fort Worth, TX 76103 Attention: Holly Moyer, CCP, PHR, SHRM-CP; Assistant Human Resources Director If to Gallagher: Gallagher Benefit Services, Inc. 3600 American Blvd. West, Suite 500 Bloomington, MN 55431 Attention: Colin Henty; National Practice Leader, Actuarial and Retirement Services Either party may, by written notice to the other, change the address to which notices to such party are to be delivered or mailed. Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 5 of 10 6-, Gallagher Insurance Risk Management Consulting 11.5. Governing Law. 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 law provisions, or any canon, custom or rule of law requiring construction against the drafter. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. 11.6. 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, 9 and 10 will survive the termination of this Agreement. 11.7. Entire Agreement Amendment; Counterparts. This Agreement, including any Exhibits 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. 11.8. 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. 11.9. Controlling Terms. If any provisions of this Agreement, conflict with or are prohibited by applicable law, conflict with any applicable rule, regulation, or ordinance of City, the terms in this Agreement shall control. 11.10. Gallagher agrees that Client 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 Gallagher involving transactions relating to the Agreement. Gallagher agrees that Client shall have access during normal working hours to all necessary Gallagher facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Client shall give Gallagher reasonable, advance notice of intended audits. Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 6 of 10 6-' Gallagher Insurance Risk Management Consulting IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date first written above. ACCEPTED AND AGREED: City of Fort Worth By: 00*� Name: Jesica McEachern Title: Assistant City Manager Date: 07i/13/23 Approval Recommended: Dianna M. Giordano By: Dianna M. Giordano (Jul 13, 2023 10:50 CDT) Name: Dianna Giordano Title: Human Resources Director onp �� �pORT*& Attest: ago 01110 aka ,=o V % ddIIrygTEX45o By: Name: Jannette Goodall Title: City Secretary VENDOR: Gallagher Benefit Services, Inc. Cold ,7 1 Ledo By: Colin J. Henty (Jul 11, 2023i4:09 EDT) Name: Colin J. Henty Title: National Practice Leader, Actuarial and Retirement Services Date: 07/11/23 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. fl fl Ntaer By: Holly H Moyer (Jul 11, 92313:10 CDT) Name: Holly Moyer Title: Assistant Human Resources Director Approved as to Form and Legality: (�idl�t2 By: Name: Jessika J. Williams Title: Assistant City Attorney Contract Authorization: M&C: N/A Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 7 of 10 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 6-' Gallagher Insurance Risk Management Consulting EXHIBIT A SCOPE OF SERVICES Actuarial Audit Services Gallagher will complete the following steps of the audit process as outlined in Code Section 802.1012: 1. Not later than the 30th 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 31 st day after the date on which the preliminary draft is submitted to the Fund, or later than the 60th 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 30th day after the date the final audit report is received by the City. Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 8 of 10 6-, Gallagher Insurance Risk Management Consulting EXHIBIT B COMPENSATION DISCLOSURE STATEMENT One of the core values highlighted in The Gallagher Way states, "We are an Open Society," and Gallagher's open society extends to the compensation it receives. As the industry moves toward complete disclosure of all forms of compensation, Gallagher embraces this effort and is committed to leading the way. To achieve this purpose, Gallagher has disclosed the fee that it will earn for the actuarial consulting services it will render on Client's behalf. It should also be noted that 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). CONSULTING FEES Compensation for providing the actuarial consulting services listed in Exhibit A shall be billed on fixed, not to exceed cost of $30,000. Services outside of the scope listed in Exhibit A will be billed on a time and expense basis using the hourly rates below in the chart below. Gallagher will provide Client with an invoice providing a description of the services performed or completed based on the timing outlined in the Exhibit A. All invoices for payments due Gallagher will be paid by Client per Section 4 of the Agreement. Services will be billed as the work is performed. Our fee quote is a "not -to -exceed" amount in order to ensure that our client does not receive any unexpected fee charges in connection with this project. Our practice is to deliver services that ensure client satisfaction. We will respond to all reasonable 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 follow-up inquiries. If we believe that any additional charges are necessary, we will review the expected scope of additional services with our client and commit to a fixed fee for the requested service(s) prior to commencing such work. Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 9 of 10 6-, Gallagher Insurance Risk Management Consulting EXHIBIT B (continued) Travel Expenses (if client requests an in -person meeting with Gallagher) Expenses are to be kept to a minimum and are billed at actual cost for (but not limited to) the following: consultant travel, lodging, meals, local transportation, and airport, meeting, and parking expenses. Hotel expenses will typically be based on preferred rates obtained by Client or Gallagher; however Gallagher may select a non -preferred major chain (e.g., Marriott; Hyatt; etc.) if personal safety factors, geography, or meeting requirements dictate. Charges for airfare will be based on the most economical means of travel wherever possible, however, due to scheduling difficulties, aircraft capacity, and/or fare availability, charges may on occasion include higher cost, refundable fares fees, full coach, or non-refundable business/first class charges. Any additions to, or changes in the services to be provided to Client per this Agreement, or any increases in the not - to -exceed costs as stated above, will require prior written approval of both parties. Hourly Rates (generally applicable to any requested out -of -scope services) Professional Standards Review Actuarial Lead Consultant Actuarial Manager Actuarial Analyst Retirement Fund of the City of Fort Worth, TX I June 5, 2023 ©2023 Arthur J. Gallagher & Co. All rights reserved. Page 10 of 10 $525 $450 $370 $310