HomeMy Public PortalAbout015-2017 - HR-Finance - Howard E Nyhart - Actuarial Report - RetireesPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into this day of i 2017, and
referred to as Contract No. 15-2017, by and between the City of Ric ond, Indiana, a
municipal corporation acting by and through its Board of Public Works and Safety (hereinafter
referred to as the "City") and The Howard E. Nyhart Company, Inc., 8415 Allison Pointe Blvd.,
Suite 300, Indianapolis, Indiana, 46250 (hereinafter referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide services in connection with preparation of the actuarial
report for the City's post -employment benefits and expenditures plan (commonly known as
"OPEB") in accordance with IC 36-1-8-17.5, to be submitted to the Indiana Department of Local
Government Financing ("DLGF") for the City of Richmond Finance and Human Resources
Departments.
The proposal of Contractor is attached hereto as Exhibit "A", which Exhibit consists of four (4)
pages, and is hereby incorporated by reference and made a part of this Agreement. Contractor
shall perform all work and provide all services described on Exhibit "A."
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
Contractor shall perform all work herein in a timely manner, conforming to all applicable
professional standards.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of
the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work.
Contract No. 15-2017
Page 1 of 6
SECTION III. COMPENSATION
City shall pay Contractor a sum estimated not to exceed One Thousand Eight Hundred Dollars
and Zero Cents ($1,800.00) for the actuarial reporting services and for the complete performance
of all work described herein in a satisfactory and proper manner, as well as any additional fees
outlined on Exhibit A for any revisions to preliminary or final results that occur.
SECTION IV. TERM OF AGREEMENT
This Agreement shall be effective when signed by all parties and shall continue in effect until
completion of the report, which completion is expected to be on or before February 24, 2017
prior to the March 1, 2017 DLGF deadline.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in
part, for cause, at any time by giving at least five (5) working days written notice specifying the
effective date and the reasons for termination which shall include but not be limited to the
following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work
performed prior to the date this Agreement is terminated, but shall be relieved of any other
responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties
by setting forth the reasons for such termination, the effective date, and in the case of partial
termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to
person or property or any other claims which may arise from the Contractor's conduct or
performance of this Agreement, either intentionally or negligently; provided, however, that
Page 2 of 6
nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts
of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this
Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set
forth below which may arise out of or result from the Contractor's operations under this
Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may
be held responsible.
Coverage
Limits
A. Worker's Compensation & Disability Requirements Statutory
B. Employer's Liability
$100,000
C. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and
shall, before commencing work under this Agreement, provide the City a certificate of insurance,
or a certificate from the industrial board showing that the Contractor has complied with Indiana
Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and
therefore subject to another state's worker's compensation law, Contractor may choose to
comply with all provisions of its home state's worker's compensation law and provide the City
proof of such compliance in lieu of complying with the provisions of the Indiana Worker's
Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work
eligibility status of all newly hired employees of the contractor through the Indiana E-Verify
program. Contractor is not required to verify the work eligibility status of all newly hired
employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify
program no longer exists. Prior to the performance of this Agreement, Contractor shall provide
to the City its signed Affidavit affirming that Contractor does not knowingly employ an
unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC
22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days
after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation
within the thirty (30) day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that
terminating this Agreement would be detrimental to the public interest or public property, the
City may allow this Agreement to remain in effect until the City procures a new contractor. If
this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the
Contractor will remain liable to the City for actual damages.
Page 3 of 6
SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in
investment activities in Iran. In the event City determines during the course of this Agreement
that this certification is no longer valid, City shall notify Contractor in writing of said
determination and shall give contractor ninety (90) days within which to respond to the written
notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased
investment activities in Iran within ninety (90) days after the written notice is given to the
Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In
the event the City determines during the course of this Agreement that this certification is no
longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-
22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety (90) day period set forth above.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting
on behalf of Contractor or any sub -contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with
respect to hire, tenure, terms, conditions or privileges of employment or any matter
directly or indirectly related to employment, because of race, religion, color, sex,
disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
1. That in the hiring of employees for the performance of work under this
Agreement of any subcontract hereunder, Contractor, any subcontractor, or any
person acting on behalf of Contractor or any sub -contractor, shall not discriminate
by reason of race, religion, color, sex, national origin or ancestry against any
citizen of the State of Indiana who is qualified and available to perform the work
to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor
or any sub -contractor shall in no manner discriminate against or intimidate any
employee hired for the performance of work under this Agreement on account of
race, religion, color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars ($5.00) for each person for each
calendar day during which such person was discriminated against or intimidated
in violation of the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money
due or to become due hereunder may be forfeited, for a second or any subsequent
violation of the terms or conditions of this section of the Agreement.
Page 4 of 6
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or
agents of the same from all liability for negligence which may arise in the course of Contractor's
performance of its obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and
void. This Agreement shall be controlled by and interpreted according to Indiana law and shall
be binding upon the parties, their successors and assigns. This document constitutes the entire
Agreement between the parties, although it may be altered or amended in whole or in part at any
time by filing with the Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document supersedes any
previous discussion, negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no
arbitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other
action in any alternative forum, venue, or in front of any other tribunal, court, or administrative
body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right
Contractor may have to bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has
been duly authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement by Contractor, and in addition to any other damages
or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this
Agreement, including but not limited to, City's reasonable attorney's fees.
Page 5 of 6
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of
the day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By: 4By:
Vicki Robinson, President
C
Date: �—��Irl
. ' ' 1:01a
Date: Z , ( O I 7
"CONTRACTOR"
THE HOWARD E. NYHART
COMPANY, INC.
8415 Allison Pointe Blvd., Suite 300,
Printed: Jhora as L • T +-,n
Title: CE, CD
Date: QZ I Z O ( o
Page 6 of 6
nyl-hart
THE HOWARD E. NYHART COMPANY, INC. ("NYHART")
SERVICE AGREEMENT ("AGREEMENT")
Agreement Between Nyhart, and:
Client Name: City of Richmond, Indiana
Primary Contact Name:
Primary Contact Address:
Primary Contact Phone:
Primary Contact Fax:
Services to be provided by Nyhart
All services to be provided by Nyhart are subject to your full cooperation and prompt submission of complete and
accurate information. Nyhart will rely on any and all information that you provide pursuant to this Agreement and on file
at our office as to accuracy and completeness. Nyhart will have no responsibility to verify such information and no
liability for errors or omissions as a result of relying on such information. Nyhart is not a law firm or a public accounting
firm and does not provide legal or tax advice.
Fees for services provided by Nyhart
The fees listed below are subject to annual adjustments.
Service Fee
Actuarial report for Indiana Department of Local Government $1,800
Finance reporting purposes:
Client will be invoiced prior to the beginning of the project for 50% of the above fee(s). The remainder of the fee shall be
invoiced upon completion of services.
There will be additional fees for revisions to preliminary or final results that are due to:
• Incorrect information provided to us, typical examples include to material changes to census data, changes to
eligibility requirements or employer subsidies. The additional fee will be limited to 1/3 of the current year's fee
for this type of revision.
• Changes to actuarial assumptions requested by the client that are expected to need more than four hours of
labor to update the results. The additional fee will be based on billed labor in excess of four hours at our current
hourly rates.
Additional services available if requested by Client
In addition to GASB 45 services, Nyhart offers the following additional services. Fee estimates will be provided upon
request. Please visit www.nvhart.com or contact your Nyhart consultant for more information.
• Health Care Reform financial impact consulting
• Actuarial Value and Minimum Value determination
• Section 105(h) non-discrimination testing
Page 1 of 4
EXHIBIT I PAGE k Oi
i
nyhart
• Calculation of self -funded and COBRA premium rates
• Incurred But Not Reported (IBNR) Reserve calculations
• Medicare Part D Attestation
• What -if Modeling for health plan design and carrier changes
• Defined Benefit & Pension consulting and administration
• Defined Contribution, 401(k) & 403(b)
• Flex Accounts — FSA, HRA, & HSA consulting and administration
Relationship of the Parties
The legal relationship between Client and Nyhart shall be exclusively that of principal and agent. The parties hereto
specifically agree and acknowledge that Nyhart shall not:
• Have discretionary authority over any aspect of the Plan;
• Be a fiduciary;
• Be responsible for ensuring that the Plan complies with any requirement to which the Plan is subject, or be
liable to the Plan, Client, or any person if the Plan fails to comply with any such requirement;
• Have any duty or authority to enforce the payment of any contribution owed under the Plan;
• Be responsible for the adequacy of the trust established as part of the Plan, or be liable for any benefits owed
under the Plan;
• Exercise discretion as to any Plan function; or
• Have any obligation to perform any service not specified in this Agreement or otherwise agreed to in writing by
the parties (regardless of whether such service may be considered "customary" services to be provided by
Nyhart).
Client agrees that Nyhart shall use all information and data supplied by or on behalf of the Client without having
independently verified the accuracy or completeness of it except to the extent required by generally accepted
professional standards and practices. If any documentation or information supplied to Nyhart at any time is incomplete,
inaccurate or not up-to-date, or its provision is unreasonably delayed, Nyhart will not be responsible for any delays or
liability arising therefrom, and will be entitled to charge the Client in respect of any resulting additional work actually
carried out.
The Client further understands that the failure to provide, or cause to provide, complete, accurate, up-to-date, and timely
documentation and information to Nyhart, whether intentional or by error, could result in an impairment of Nyhart's
services.
Client Responsibilities and Representations
The Client has general responsibilities with respect to the Plan, including
• Providing all information required by Nyhart to perform its services under this Agreement on a timely basis;
• Serving as fiduciary for the Plan;
• Communicating Plan details to employees and answering employee questions;
• Ensuring adequate funding of the Plan; and
• Authorizing plan disbursements and ensuring accuracy of information provided.
Dispute Resolution
Nyhart and Client agree that before commencing any action or proceeding with respect to any dispute between the
parties arising out of or relating to this Agreement or the Services they first shall attempt to settle such dispute through
consultation and negotiation in good faith and in a spirit of mutual cooperation. Any such dispute will be submitted in
writing to a panel of one (1) senior executive or official of each of Nyhart and Client, who will promptly meet and confer
Page 2 of 4
1 E1cHIDT fJ PAGE I- OF
nyhart
in an effort to resolve such dispute. Each party's representative will be identified by notice to the other, and may be
changed at any time thereafter by notice to the other. Any mutually agreed decisions of the executives will be final and
binding on the parties. In the event the executives are unable to resolve any dispute within thirty (30) days after
submission to them, either party may then refer such dispute to mediation by a mutually acceptable mediator to be
chosen by Nyhart and Client within forty-five (45) days after written notice by either party demanding mediation. Neither
party may unreasonably withhold consent to the selection of a mediator. All communications and discussions in
furtherance of this paragraph shall be treated as confidential settlement negotiations, which are not subject to discovery.
The costs of the mediator shall be shared equally, but each party shall pay its own attorneys' fees.
Any dispute which cannot be resolved between the parties through negotiation, mediation or other form of alternative
dispute resolution within six months of the date of the initial demand for mediation by one of the parties may then be
submitted to a court of competent jurisdiction. To facilitate an expeditious and economical judicial resolution of such
dispute, Nyhart and Client agree to waive and not to demand a trial by jury, and not to include any employee, officer,
director or trustee of either as a party, in any action, proceeding or counterclaim relating to such dispute. Nothing in this
section will prevent either party from resorting to judicial proceedings if interim relief from a court is necessary to prevent
serious and irreparable injury to that party or to others. Any claim, action or proceeding against Nyhart will be barred
unless Client initiates the dispute resolution procedures outlined below within one year of first discovering the act, error
or omission that is the basis for such claim.
Indemnification and Limitation of Liabilit
The liability of Nyhart, in tort, contract or otherwise, to Client, a Plan and the officers, directors, trustees, employees or
shareholders of any of them, and to any other third party, for all claims arising in connection with or contributed to by this
Agreement and the Services (including without limitation multiple claims arising out of or based upon the same act, error
or omission, or series of continuous, interrelated or repeated acts, errors or omissions) shall not include loss of profit or
incidental, consequential, indirect, punitive or similar damages and shall be further limited to the amount of fees for
Services received by Nyhart under this Agreement for the twelve (12) months immediately preceding the act, error or
omission upon which such liability is based. Nothing in this paragraph shall apply to any liability which has been finally
determined to have arisen from willful misconduct or fraud on the part of Nyhart or which cannot lawfully be limited,
modified or excluded.
Client shall indemnify Nyhart from and against any and all claim, loss, liability or damage (including attorney's fees)
which Nyhart may incur by reason of its good faith service delivery to Client.
Nyhart shall indemnify the Client from and against any and all claim, loss, liability or damage (including attorney's fees)
which the Client may incur: (i) arising out of any material breach by Nyhart of any of its material obligations,
representations or warranties contained in this Agreement; or (ii) arising out of Nyhart's negligence, gross negligence or
willful, fraudulent, or criminal misconduct associated with its performance of services under this Agreement. The parties
further recognize that clerical errors and variations may occur. When discovered, they will be corrected or adjusted by
Nyhart, in accordance with its normal procedures, to the extent reasonable and possible.
Page 3 of 4
1--XHI IT A PAGE 3 OF
nyhart
Acceptance
The items and conditions of this Agreement are agreed to and accepted by Client on behalf of the Plan. This Agreement
is effective only when signed by all parties.
City of Richmond, Indiana
By:
Printed Name:
Date:
Nyhart
By:
Printed Name:
Date:
Page 4 of 4
IEXHiM?"_f�_PAGE A OF__!j�