Loading...
HomeMy Public PortalAbout162-2020 - Finance - The Howard E Nyhart Co. - Actuarial ReportPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this ay of fle* el,"'2020, and referred to as Contract No. 162-2020, by and between the City of Richmond, 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. 162-2020 Page 1 of 6 SECTION III. COMPENSATION City shall pay Contractor a sum estimated not to exceed Two Thousand Eight Hundred Dollars and Zero Cents ($2,800.00) 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 26, 2021 prior to the March 1, 2021 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. This Agreement may also be terminated by the City if a force-majeure event occurs and the results or aftereffects of said event causes the performance of this Agreement to become impossible or highly impracticable. Said event or results or aftereffects of said event would include events or effects which the parties to this Agreement could not have anticipated or controlled. Examples of a force- majeure event, or its results, would include, but would not be limited to, events such as an Act of God, an Act of Nature, an Act of Law, or an Emergency Act of Executive Enforcement of the Federal government, the State of Indiana, or local government. Page 2 of 6 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 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 & Statutory Disability Requirements B. Vmployer'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 Page 3 of 6 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. 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: 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 Page 4 of 6 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. 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. 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 Page 5 of 6 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 B . �64k��l mil/yZ�� Vicki Robinson, President Emily Palmer, Member By: Matt Evans, Member "CONTRACTOR" THE HOWARD E. NYHART COMPANY, INC. 8415 Allison Pointe Blvd., Suite 300, Indianapolis, IN 46250 By: Printed: SUzia s � n Title: t0loN4L KALTl CA" �Ia-0- R APPROVED: ! Date: LI I1z" avi M. Sinor Date: Page 6 of 6 n, y.h- a rt THE HOWARD E. NYHART COMPANY, INC. ("NYHART") SERVICE AGREEMENT ("AGREEMENT") Agreement Between Nyhart, and: Client Name: Primary Contact Name: Primary Contact Address: Primary Contact Phone: Primary Contact Fax: Primary Contact Email: City of Richmond Emily Palmer 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, except to the extent required by generally accepted professional standards and practices. Nyhart is not a law firm or a public accounting firm and does -not provide legal or tax advice. For the fiscal_.year ending December 31, 2020, Nyhart will provide the following actuarial services: • Prepare actuarial report for 2020 Gateway reporting purposes based on 2020 health information Fees for services provided by Nyhart Service Fee GASB 75 OPEB Actuarial Report $2,800 ($3,100 if data is received after 2/14/2021) Client will be invoiced at the end of each month for work in progress. Please select the method of delivery of your invoice: ❑ I would like my. invoice sent electronically to the primary contact's email address. ❑ I would like my invoice sent via regular mail to the attention of the primary contact at the address shown on the first page. For an alternative invoice recipient, please provide their information below. If this section is left blank, we will send the invoice to the primary contact's email address on file or address shown above. Invoice recipient name Invoice recipient email address Invoice recipient address Page 1 of 4 n-hart y 74 M F4+ ev"_ by A=liue 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 1/2 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 two hours of labor to update the results. The additional fee will be based on billed labor in excess of two hours at our current hourly rates. Additional services available if requested by Client In addition to the services above, 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 • 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. Page 2 of 4 nyh,art I $;MM A.A�-RM!Yy A=n--A? 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 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. Ali 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 Liability 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. Page 3 of 4 a� n rt v. .4511ffl!�'. 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. 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 By: Printed Name: Date: Nyhart By: Printed Name: Date: Page 4 of 4