HomeMy WebLinkAboutMercer Health & Benefits; 2006-07-21;AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR BENEFIT CONSULTING
SERVICES
Mercer Health & Benefits
This^ Amendment No. 1 is entered into and effective as of the t day of
~ 200f_, extending the agreement dated July 21, 2006, (the
"Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Mercer
Health & Benefits, a limited liability corporation, ("Contractor") (collectively, the "Parties").
RECITALS
The Parties desire to extend the Agreement for a period of one year; and
NOW, THEREFORE, in consideration of this recital and the mutual covenants contained
herein, City and Contractor agree as follows:
1. The Agreement is hereby extended for a period of one year ending on
July 21, 2010.
2. All other provisions of the Agreement shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement shall include coverage for this Amendment.
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4. The individuals executing this Amendment and the instruments referenced on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions hereof of this Amendment.
CONTRACTOR
(sign here)
Ann QHo /Senior
(print name/title)
Qnn.Q-V;Vo & mercer,
(e-mail address)
*By:
CITY OF
corporation
By:
LORRAINE M. WOOD—/ "
City Clerk
(sign here)
(print name/title)
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
"Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R.<BAI?fe^jiy-A)ttorney
.2^-:==-*
By:
Oeetrty City Attorney
City Attorney Approved Version #05.22.01
AGREEMENT FOR BENEFIT CONSULTING SERVICES
Mercer Health & Benefits
THIS AGREEMENT is made and entered into as of the &<> day of
, 200/p. by and between the CITY OF 6ARLSBAD, a municipal
jorajon, ("City"), and Mercer Health & Benefits, a limited liability corporation,
("Contractor").
RECITALS
A. City requires the professional services of a benefits consultant that is
experienced in all of the necessary professional services for the ongoing review of the
City's benefit programs.
B. Contractor has the necessary experience in providing professional
services and advice related to employee benefits.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of three (3) years from the date
first above written. The parties may amend the Agreement to extend it for two (2)
additional one (1) year periods or parts thereof in an amount not to exceed ninety-five
thousand dollars ($95,000) per Agreement year. Extensions will be based upon a
satisfactory review of Contractor's performance, City needs, and appropriation of funds
by the City Council. The parties will prepare a written amendment indicating the
effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
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5 COMPENSATION
The total fee payable for the Services to be performed during the Agreement term shall
not exceed ninety-five thousand dollars ($95,000) per year. Services shall be billed at
the annual rate of sixty-five thousand dollars ($65,000) for three years, payable
quarterly in installments of $16,250. If the parties amend the Agreement to extend it for
two (2) additional one (1) year periods, the annual rate shall increase by three percent
(3%) per year. Some additional expenses may apply if additional resources are required
for special projects outside the scope of those Contractor responsibilities outlined in
Exhibit "A." Examples of such special projects that may incur additional expenses are
provided in Exhibit "B". However, during the Agreement term, Contractor agrees to
provide sixteen thousand dollars ($16,000) worth of such additional expenses free of
charge.
Contractor will also be compensated by accepting the current commission schedule
from the City's benefit providers. Within thirty (30) days after commencement of this
Agreement or any extension of it, Contractor will disclose to the City in writing all current
commissions. Contractor will also disclose in writing any changes in the commissions
within 30 days after the change occurs. The City reserves the right, after receipt of a
disclosure, to renegotiate consultants compensation, including, but not limited to,
placing a percentage of Contractor's compensation at risk under a performance
guarantee. Any breach of this agreement will relieve City from the obligation to pay
consultant, after City gives reasonable time to correct breach.
No other compensation for the Services will be allowed except for items covered by
subsequent amendments to this Agreement. The City reserves the right to withhold a
ten percent (10%) retention until City has accepted the work and/or Services specified
in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
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compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein to
the extent such claims arise from any willful misconduct, negligent acts, or omissions of
the Contractor, any subcontractor, anyone directly employed by any of them or anyone
for whose acts any of them may be liable. This section will survive the expiration or
early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance or self-insurance approved by the City against claims for
injuries to persons or damage to property which may arise out of or in connection with
performance of the services by Contractor or Contractor's agents, representatives,
employees or subcontractors. The insurance will be obtained from an insurance carrier
admitted and authorized to do business in the State of California. The insurance carrier
is required to have a current Best's Key Rating of not less than "A-:V".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
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obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1.000.000 per occurrence
for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 per accident for bodily injury and property
damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time,
complete and certified copies of any or all required insurance policies and
endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
specifically and exclusively for the City pursuant to this Agreement is the property of
City. In the event this Agreement is terminated, all work product produced by
Contractor or its agents, employees and subcontractors pursuant to this Agreement will
be delivered at once to City. Contractor will have the right to make one (1) copy of the
work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
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15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For City:
Name Debbie Porter
Title Sr. Management Analyst
Department Human Resources
City of Carlsbad
Address 1635 Faraday Ave
Carlsbad. CA 92008
Phone No. (760) 602-2441
For Contractor:
Name Sherri Harrison
Title Principal. Office Business Leader
Address Mercer Health & Benefits
4445 Eastgate Mall. Suite 300
San Diego. CA 92121-1979
Phone No. (858)552-3811
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
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the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
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other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq.. the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
*By:
CITY OF CARLSBAD, a municipal
corporation of the State of California
LORRAINE M. WOOD
ity Clerk
(print name/title) / "*"— => 1^113^2 =
". .Jfe/If required by City, proper notarial acknowledgment of execution by contraclQj> £"'„ v,
must be attached. If a Corporation. Agreement must be signed by one corporate''""""1^
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
BALL, CityAttorney
By:
r^ity Attorney
City Attorney Approved Version #04.01.02
EXHIBIT "A"
SCOPE OF SERVICES
Contractor's responsibilities will include the following accomplishments:
• Assist in developing long-range employee benefit goals and strategies for
the City.
• Assist in administering group insurance plans identified above, settling
disputes and other issues with carriers, analyzing the effectiveness of
programs and offering creative solutions to problems.
• Monitor ongoing contracts, including plan administration, provider
compliance with contracts, booklets and employee education materials.
• Respond promptly and accurately to questions from City representatives
and employees.
• Assist with compliance with applicable laws and regulations; advising City
staff of changes in the laws and recommending solutions.
• Act as a broker/consultant on related issues such as IRS §125 and related
discrimination testing, COBRA, Health Insurance Portability and
Accountability Act (HIPAA), Medicare, Family and Medical Leave Act
(FMLA), California Family Rights Act (CFRA), and Americans with
Disabilities Act (ADA).
• Review and analyze claims experience data, claims service, efficiency and
accuracy of claims administration to ensure that the City is receiving
optimum service and benefit from all carriers and vendors.
• Determine and recommend the most economical and efficient funding
methods for various benefit programs. Develop alternative funding and
design options.
• Apprise the City benefits representatives of local and national benefit
trends, innovative ideas and recommend new products, programs and
services to ensure a competitive benefits program. Provide access to
sample benefit forms and policies.
• Provide a review and summary of employee benefits including analysis of
the quality of benefits provided, cost effectiveness, competitiveness,
recommendations, etc.
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Meet with and provide reports and updates to City representatives as
needed. Provide estimates of renewal rates to assist the City in
forecasting and budgeting.
Represent the City in all negotiations with providers on all issues,
including those related to premiums, service, benefit levels, plan design,
special terms and conditions, etc. Negotiate all rate renewals and
changes and additions to contracts.
Solicit bids from insurance markets which specialize in group insurance
plans. Evaluate bids and bidders, include claims procedures, abilities,
experience and history, service, financial policies and stability, and
identifying the most beneficial package for the City's needs.
Assist with the creation and implementation of communication materials
(pamphlets, brochures, presentations, etc.) for new or changed programs,
including materials for Open Enrollment and Health Fairs. Attend Open
Enrollment meetings and Health Fairs, and provide enrollment support as
needed.
Identify, investigate, analyze and implement efficiency measures such as
employer partnerships, electronic benefits administration, and other
concepts that have the effect of reducing the cost associated with
employee benefit programs without reducing services to employees.
Create and review plan documents.
Review and recommend changes to the City's Integrated Disability
Management or Return to Work practices
Meet with employee associations as necessary.
Assist with development and delivery of benefit training/workshops/focus
groups for employees.
Assist in any special projects related to employee benefits including
implementing the capability for employees to view personal benefit
information on line and conduct on-line enrollment
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EXHIBIT "B"
SPECIAL SERVICES THAT MAY INCUR ADDITIONAL EXPENSES
• Designing, implementing and maintaining a wellness program
• Designing, implementing and maintaining a City benefit website
• Outsourcing benefit services such as COBRA and Consolidated Billing
• Absence Management services
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