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HomeMy WebLinkAboutAssociated Financial Group 2020 termi AGREEMENT THIS AGREEMENT, made on the 17th day of September, 2019, by and between the CITY OF OSHKOSH, hereinafter referred to as CITY, and ASSOCIATED FINANCIAL GROUP, 711 EISENHOWER DRIVE, KIMBERLY, WI 54136, hereinafter referred to as the CONSULTANT. WITNESSETH: That the CITY and the CONSULTANT, for the consideration hereinafter named, enter into the following Agreement. COMPONENT PARTS OF THE AGREEMENT This Agreement consists of the following component parts, all of which are as fully a part of this Agreement as if herein set out verbatim, or if not attached, as if hereto attached: 1. This Instrument 2. CITY's request for proposal for benefit consulting services issued January 1, 2020 and attached hereto. 3. Consultant's response to the CITY's request for proposal for benefit consulting services dated January 1, 2020 and attached hereto. 4. Business Associate Agreement 5. HR Hotline Agreement 6. Consultant's certificate of insurance. 7. Consultant's insurance intermediary license for the state of Wisconsin. In the event that any provision in any of the above component parts of this Agreement conflicts with any provision in any other of the component parts, the provision in the component part first enumerated above shall govern over any other component part which follows it numerically except as may be otherwise specifically stated. CITY REPRESENTATIVE 30I330 The CITY shall assign the following individual to manage this Agreem nth----- i Michelle Behnke, Human Resources Manager 6101 Z s 1 n0� SCOPE OF WORK The CONSULTANT shall provide the services described in the CONSULTANT's attached Response to Request for Proposal. CITY may make or approve changes within the general Scope of Services contained within the Professional Services Proposal and in this AGREEMENT. If such changes affect CONSULTANT's cost or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT. 1 In addition to the services described in the CONSULTANT'S attached Response to Request for Proposal, CONSULTANT will provide the HR Hotline at no additional charge for the one year of this agreement. RECORDS AND INSTRUMENTS OF SERVICE A. Confidentiality. All information and advice exchanged between the parties (including their agents and employees) shall be treated as confidential, and shall not be disclosed to third parties except: 1) as agreed upon in writing, 2) when necessary to accomplish the purposes of this agreement, or 3) as required by law. B. In addition, each party agrees promptly to advise the other party in writing of any unauthorized misappropriation, disclosure or use by any person of Confidential Information which may come to its attention, and to take all reasonable steps to limit, stop or otherwise remedy such misappropriation, disclosure or use. The confidentiality provisions contained herein shall continue and stay in effect even after the expiration of this Agreement. C. Any document related to this agreement, whether in electronic or paper form, is considered a public record and shall be provided to the City upon request. The contractor may provide the City with an explanation of why they believe any document should not be released to the public. The City shall make all final determinations regarding the existence or release of any document related to this agreement. TERM AND TERMINATION A. Term. The term of this agreement is from January 1, 2020 through December 31, 2020. B. Termination. 1. For Cause. If either party shall fail to fulfill in timely and proper manner any of the obligations under this Agreement, the other party shall have the right to terminate this Agreement by written notice. However, before doing so, the party seeking to terminate the Agreement must provide the other party with at least thirty (30) days notice in writing of the reasons for termination. Upon receipt of written notice, the responding party shall have thirty (30) days to cure the failure to fulfill the obligations under this Agreement. In the event the Agreement is terminated, the CONSULTANT shall be entitled to compensation until the date of termination. 2. For Convenience. The CITY may terminate this Agreement at any time by giving written notice to the CONSULTANT no later than 30 calendar days before the termination date. E TIME OF COMPLETION The CONSULTANT shall perform the services under this Agreement with reasonable diligence and expediency consistent with sound professional practices. The CITY agrees that the CONSULTANT is not responsible for damages arising directly or indirectly from any delays for causes beyond the CONSULTANT's control. For the purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes, severe weather disruptions or other natural disasters, or failure of performance by the CITY. If the delays resulting from any such causes increase the time required by the CONSULTANT to perform its services in an orderly and efficient manner, the CONSULTANT shall be entitled to an equitable adjustment in schedule. ASSIGNMENT CONSULTANT shall not have the right to assign this Agreement without the written prior consent of the City. INDEPENDENT CONTRACTOR CONSULTANT is an independent contractor and is not an employee of the CITY COOPERATION IN LITIGATION AND AUDITS CONSULTANT shall fully and completely cooperate with the City, the City's insurer, the City's attorneys, the City's Auditors or other representative of the City (collectively, the "City" for purposes of this Article) in connection with (a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters relating to this Agreement; other than a third party proceeding in which CONSULTANT is a named party and CONSULTANT and the City have not entered into a mutually acceptable joint defense agreement. Such cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making CONSULTANT's employees available to the City (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Litigation or Audit; (ii) appearing at the request of the City to give testimony without requiring service of a subpoena or other legal process; (iii) volunteering to the City all pertinent information related to any Litigation or Audit; and (iv) providing information and legal representations to auditors in a form and within a timeframe requested. City shall reimburse CONSULTANT for reasonable direct expenses incurred in connection with providing documents and records required under this paragraph and may require, at the City's sole discretion, such expenses to be documented by receipts or 3 other appropriate documentation. Reasonable direct expenses include costs, such as copying, postage and similar costs; but do not include wages, salaries, benefits and other employee compensation. CONSULTANT shall not be entitled to additional compensation for employee services provided under this paragraph. STANDARD OF CARE The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence normally employed by professional CONSULTANTs or consultants performing the same or similar Services at the time said services are performed. CONSULTANT will re -perform any services not meeting this standard without additional compensation. CITY RESPONSIBILITIES The CITY shall furnish, at the CONSULTANT's request, such information as is needed by the CONSULTANT to aid in the progress of the project, providing it is reasonably obtainable from City records. CITY acknowledges that it is responsible for thoroughly reviewing for accuracy and completeness any information it provides to CONSULTANT, and that CONSULTANT will rely upon the accuracy, timeliness, and completeness of the information provided by CITY. To prevent any unreasonable delay in the CONSULTANT's work, the CITY will examine all reports and other documents and will make any authorizations necessary to proceed with work within a reasonable time period. PAYMENT A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the performance of the Agreement the amount as follows: Year 1 (January 1, 2020 to December 31, 2020): $5,871 per month B. Method of Payment. The CONSULTANT shall submit itemized monthly statements for services. The CITY shall pay the CONSULTANT within 30 calendar days after receipt of such statement. If any statement amount is disputed, the CITY may withhold payment of such amount and shall provide to CONSULTANT a statement as to the reason(s) for withholding payment. C. Additional Costs. Costs for additional services shall be negotiated and set forth in a written amendment to this Agreement executed by both parties prior to proceeding with the work covered under the subject amendment. 0 D. Commissions. The CONSULTANT understands that as the CITY's representative, they are not entitled to commissions of any sort regardless of the services the CONSULTANT may provide or broker under this agreement. For the purposes of this Agreement, "commissions" includes contingency compensation in connection with CITY's insurance plans to which CONSULTANT would otherwise be entitled. The parties may subsequently agree in writing that CONSULTANT is eligible to receive some, or all, of any available commissions. HOLD HARMLESS The CONSULTANT covenants and agrees to protect and hold the CITY harmless against all actions, claims, and demands which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CONSULTANT, its agents or assigns, its employees, or its subcontractors related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the CITY all sums including court costs, attorney fees, and punitive damages which the CITY may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the CITY's written demand for indemnification or refund for those actions, claim, and demands caused by or resulting from intentional or negligent acts as specified in this paragraph. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the City further agrees to hold CONSULTANT harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description, which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CITY, its agents or assigns, its employees, or its subcontractors related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, where such liability is founded upon or grows out of the acts or omission of any of the officers, employees or agents of the CITY while acting within the scope of their employment, and shall indemnify the CONSULTANT all sums including court costs, attorney fees, and punitive damages which the CONSULTANT may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the CONSULTANT's written demand for indemnification or refund for those actions, claim, and demands caused by or resulting from intentional or negligent acts as specified in this paragraph. It is the intention of the parties to this Agreement that each party shall be solely responsible for its own actions and activities and the actions and activities of its own officers, employees and agents while acting within the scope of their employment DISCLAIMER While knowledge of the legal, tax, and financial issues related to the products, services, and advice offered by CONSULTANT is an important part of CONSULTANT's expertise, the products, services, and advice themselves do not constitute, and should not be construed as providing, legal, tax, or financial advice. CITY acknowledges that, in 5 providing products, services, or advice under this Agreement, CONSULTANT is not acting in the capacity of a fiduciary related to legal, tax, or financial advice provided, and CITY hereby waives any rights it may have to pursue any type of fiduciary claim against CONSULTANT. CITY is seeking CONSULTANT's expertise and recommendations with respect to the products, services, and advice offered by CONSULTANT under this Agreement. As a result, CONSULTANT accepts liability for the percentage of any harm suffered by CITY attributable to the negligent provision of products, services, and advice offered by CONSULTANT under this Agreement. However, CITY acknowledges that some of the products, services, and advice offered by CONSULTANT will be based upon the accuracy, timeliness, and completeness of information provided by CITY. Thus, CONSULTANT will not accept liability for harm that is attributable to inaccurate, untimely, or incomplete information provided by CITY. INSURANCE The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance Requirements for Professional Services. WHOLEAGREEMENT/AMENDMENT This document and any specified attachments contain all terms and conditions of the Agreement and any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. NO THIRD -PARTY BENEFICIARIES This AGREEMENT gives no rights or benefits to anyone other than CITY and CONSULTANT and has no third -party beneficiaries. AGREEMENT NOT TO BE CONSTRUED AGAINST ANY PARTY This Agreement is the product of negotiation between the parties hereto and no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against any party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant or condition contained herein. NO WAIVER Failure of either party to insist upon the strict performance of terms and provisions of this agreement, or any of them, shall not constitute or be construed as a waiver or relinquishment of that party's right to thereafter enforce such term or provision, and that term of the provisions shall continue in full force and effect. NON-DISCRIMINATION 11 The Operator agrees not to discriminate in its operations under this Agreement on the basis of race, color, creed, age, and gender, or as otherwise prohibited by law. A breach of this covenant may be regarded as a material breach of this Agreement SEVERABILITY If any term, covenant, condition or provision of this agreement shall be invalid or enforceable, the remainder of this agreement shall not be affected thereby the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by law. CHOICE OF LAW AND VENUE The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, has caused this contract to be sealed with its corporate seal and to be subscribed to by its City Manager and City Clerk and countersigned by the Comptroller of said City, and CONSULTANT hereunto set its hand and seal the day and year first above written. In the Presence of: CONS LULL (Seal of Contractor if a Corporation.) APPROVED: GROUP CITY OF OSHKOSH By: .:: �—.4 Mark A. }Rohloff, City Manager/ h And: Pamela R. Ubrig, City Clerk I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract f _o City Comptroller