AGREEMENT FOR ADMINISTRATIVE, INVESTMENT AND COMMUNICATION ADVISORY SERVICES BETWEEN BFSG, LLC ANDCITY OF SANTA ANATHIS AGREEMENT is made and entered into on this 1st day of January, 2025 by and betweenBFSG, LLC,Contractority of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California RECITALSA. On September 19, 2024, the City issued a Request for Proposal No. 24-109which it sought a contractor to provide Plan Administrative, Investment andCommunication Advisory Services related to the 457 (b) Deferred Compensation Plan andRetirement Health Savings (RHS) Plan.B. Contractor submitted a responsive proposal that was selected by the City, andsuch Proposal is referenced herein as if set out in full. Contractor represents that it is ableand willing to provide services described in the scope of work that was included in theRFP.C. In undertaking the performance of this Agreement, Contractor represents that it isknowledgeable in its field and that any services performed by Contractor under thisAgreement will be performed in compliance with such standards as may reasonably beexpected from a professional consulting firm in the field.NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:1. SCOPE OF SERVICESContractor shall perform during the term of this Agreement, the tasks and obligationsincluding all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A,attached hereto and incorporated by reference. 2. COMPENSATIONa. City agrees to pay, and Contractor agrees to accept as total payment for its services forCity, the rates and charges identified in Compensation - Exhibit B. The total amountto be expended during the term of this Agreement shall not exceed $175,000.b. Payment by City shall be made within forty-five (45) days following receipt of properinvoice evidencing work performed, subject to City accounting procedures. City andContractor agree that all payments due and owing under this Agreement shall be madethrough Automated Clearing House (ACH) transfers. Contractor agrees to execute theard ACH Vendor Payment Authorization and provide required
documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Contractoraccount(s) with financial institutions.Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City.3. TERMThis Agreement shall commence on the date first written above for a year termwith the option for the City to grant up to one 2-yearrenewal, exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 15, below. 4. INDEPENDENT CONTRACTORContractor shall, during the entire term of this Agreement, be construed to be anindependent Contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractorperforms the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.5. OWNERSHIP OF MATERIALSThis Agreement creates a non-exclusive and perpetual license for City to copy, use,modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Contractor under thisContractorshall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within 6. INSURANCEPrior to undertaking performance of work under this Agreement, Contractor shall maintainand shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which
may arise from or in connection with services, produces and materials supplied to City. Total cost of such insurance shall be borne by Contractor.MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1.Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covproperty damage, bodily injury and personal & advertising injury with limits no less than $1,000,000per occurrence and $2,000,000aggregate. Required policy limits can be metwith primary and umbrella/excess insurance policies.2.Automobile Liability: Insurance Services Office Form Number CA 00 01 covering any auto (Code 1), with limits no less than $1,000,000combined single limits. In the event Contractor does not maintain commercial automobile liability insurance, City will accept evidence of personal automobile insurance.3.as required by the State of California, with Statutory Limits, n$1,000,000 per accident for bodily injury or disease. Coverage is not required if Contractor has no employees and signs request to waive such insurance.4.Professional Liability (Errors and Omissions): Insurance appropriate to the Contractoron, with limit no less than $1,000,000per occurrence or claim, $2,000,000aggregate. If the Contractor maintains broader coverage and/or higher limits than the minimum requirements for each line of coverage shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.Other Insurance Provisions The above required insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds, under ContractorAutomobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, equipment, and personnel furnished in connection with such work or operations.2. Contractorits City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Contractor under this Agreement.3. For any claims related to this contract, Contractorand any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it.
4. A severability of interest provision must apply for all the additional insureds, ensuring that Contractoror suit is brought, except with respect5. Insurance policies required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non-renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium.6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Executive Director, Finance and Management Services Agency, 20 Civic Center Plaza M-17, Santa Ana, CA 92701. The name and location of project must be included in the Description of Operations section of each certificate.Self-Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current City.Verification of Coverage Contractor shall furnish the City with original certificates of insurance including all requiredamendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the ContractorSpecial Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.7. INDEMNIFICATIONContractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractorservices are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.8. INTELLECTUAL PROPERTY INDEMNIFICATIONContractor shall defend and indemnify the City, its officers, agents, representatives, and letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Contractor to the City pursuant to this Agreement.9. RECORDSContractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement.10. CONFIDENTIALITYIf Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractorwithout an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSEContractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.12. NON-DISCRIMINATIONContractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.13. EXCLUSIVITY AND AMENDMENTThis Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein.14. ASSIGNMENTInasmuch as this Agreement is intended to secure the specialized services of Contractor,Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall Agreement performed by City personnel or by other Contractors retained by City.15. TERMINATIONThis Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractorcompensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to
deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate.b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.16. WAIVERNo waiver of breach, failure of any condition, or any right or remedy contained in orgranted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.17. JURISDICTION - VENUEThis Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PROFESSIONAL LICENSESContractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement.19. NOTICEAny notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons:To City:City ClerkCity of Santa Ana20 Civic Center Plaza (M-30)P.O. Box 1988Santa Ana, CA 92702-1988
Fax: 714- 647-6956With courtesy copies to:Executive Director,Finance and Management ServicesAgencyCity of Santa Ana20 Civic Center Plaza (M-17)P.O. Box 1988Santa Ana, California 92702Fax:714-647-6956To Contractor:Darren StewartPrincipal, Sr. Retirement Plan Consultant2040 Main Street, Suite 720Irvine, CA 92614Email: [email protected] party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.20. MISCELLANEOUS PROVISIONSa. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and or power is not, in fact, held by the signatory or is withdrawn.b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.ATTEST: CITY OF SANTA ANAJennifer L. Hall Alvaro NuñezCity Clerk City ManagerAPPROVED AS TO FORM:SONIA R. CARVALHOBFSG, LLCCity AttorneyBy: Andrea Garcia-Miller Name:Assistant City Attorney Title:RECOMMENDED FOR APPROVAL:Kathryn DownsExecutive DirectorFinance and Management Services Agency
EXHIBIT ASCOPE OF SERVICES
CITY OF SANTA ANA
The consultant shall perform services as set forth below: A. Administrative Responsibilities 1. Ensure plan design compliance. 2. Prepare an onboarding/implementation plan before commencing the service. 3. Provide regulatory/technical guidance. 4. Prepare an annual plan provider cost analysis. 5. Assist in development of Request for Proposals for Plan Provider, if needed. 6. Ensure best practices are met in the interest of the participants. B. Investment Responsibilities 1. Conduct up to four quarterly reviews of investment options. 2. Conduct due diligence on current investment options and make recommendations on alternative options. 3. Assist in implementing fund changes and transitions. 4. Maintain and revise the Investment Policy Statement for the Plan. 5. Attend on-site meetings and provided recorded minutes for each meeting/conference call. 6. Ensure best practices are met in the review & evaluation of investment options. C. Communication Responsibilities 1. Assist the Committee with developing marketing and education strategies for participants. 2. Assist the Committee with developing marketing & education materials.3. Provide educational seminars that will supplement the seminars conducted by the Plan Provider. D. Fee and Cost Analysis 1. Periodically evaluate and benchmark all fees and costs associated with the plans, including fee structure.
EXHIBIT I SCOPE OF SERVICES
City of Santa AnaRFP No. 24-109
EXHIBIT BCOMPENSATIONFee Proposal including hourly rates if applicable