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HomeMy WebLinkAboutContracts & Agreements_152-2026AGREEMENT TO PERFORM PROFESSIONAL SERVICES This agreement for the provision of actuarial valuation of other post -employment benefits ("Agreement") is made and entered in this 15th day of July, 2026 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and The Howard E Nyhart Company Incorporated, an Indiana Corporation ("Consultant"). City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Consultant agree as follows: ARTICLE 1— ENGAGEMENT OF CONSULTANT 1.1 City hereby engages Consultant to provide actuarial variation of other post -employment benefits services for City (the "Services"). 1.2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional consultants in the industry providing like and similar types of Services. ARTICLE 2 — SERVICES OF CONSULTANT 2.1 The Services that Consultant shall perform are more particularly described in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by this reference. 2.2 Consultant shall comply with applicable federal, state and local laws and regulations in the performance of this Agreement including, but not limited to, any applicable State prevailing wage laws. 2.3 Consultant is not a law firm or a public accounting firm and does not provide legal, tax, or investment advice. 2.4 Consultant shall not: have discretionary authority or control over, or hold, any plan assets; be responsible for ensuring that the plan complies with any requirement to which the plan is subject under the Internal Revenue Code or other applicable law, or be liable to the plan, City, 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, including the administration of the plan; or have any obligation to perform any service not specified in this Agreement or otherwise agreed to in writing by the parties. ARTICLE 3 —RESPONSIBILITIES OF CITY 3.1 City designates James Garland, Interim Management Services Director, as City's representative with respect to performance of the Services, and such person shall have the 1 11cmo1Agreements\Agreement w Nyhart Co bre.bm.07.14.2026.FY2728-13.docx authority to transmit instructions, receive information, interpret and define City's policies and decisions with respect to performance of the Services. ARTICLE 4 — PERFORMANCE OF SERVICES 4.1 Consultant shall perform and complete the Services in a prompt and diligent manner in accordance with the schedule set forth in Exhibit `B," titled "Project Schedule," which is attached hereto and incorporated herein by reference. 4.2 The term of this Agreement shall be for a period of two years from the Effective Date of this Agreement (the "Initial Term") to July 15th, 2028. The City shall have the option to extend the Initial Term of this Agreement by two (2) additional two-year terms (each, an "Extended Term"), on the same terms and conditions, by providing written notice to Consultant at least thirty (30) days prior to the expiration of the Initial Tenn or any Extended Term. 4.3 If Consultant's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to City, consistent with City Council -adopted policy for the same. It shall be the obligation of Consultant to obtain a copy of such policy from City staff. ARTICLE 5 —PAYMENTS TO CONSULTANT 5.1 The compensation for Consultant's performance of the Services shall not exceed the amount of Ten Thousand Four Hundred Dollars ($10,400.00) for the Services provided during the Initial Term. Should this Agreement be extended, the compensation for Consultant's performance for the Services shall not exceed the amount of Ten Thousand Six Hundred Fifty Dollars ($10,650.00) for the first Extended Term; and Ten Thousand Nine Hundred Dollars ($10,900.00) for the second Extended Term, bringing the total possible amount of compensation to a not -to -exceed amount of Thirty -One Thousand Nine Hundred Fifty Dollars ($31,950.00). For the Initial Term and each Extended Term, City shall pay Consultant in accordance with the rates specified in Exhibit "C," titled "Fee Schedule," which is attached hereto and incorporated herein by this reference. 5.2 Consultant shall submit monthly invoices to City describing the Services performed during the preceding month. Consultant's invoices shall include a brief description of the Services performed, the dates the Services were performed, the number of hours spent and by whom, and a description of reimbursable expenses related to the Services. City shall pay Consultant no later than thirty (30) days after receipt and approval by City of Consultant's invoice. 5.3 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if 2 I:\cmo\Agreements\Agreement w Nyhart Co Inc.bm.07.14.2026.FY2728-13.doex confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: CITY: City of Redlands James Garland 35 Cajon Street Suite 30 Redlands, CA 92373 james.garland@cityofredlands.org Phone: 909-335-4789 CONSULTANT: John Lee, National Healthcare Director-Nyhart The Howard E. Nyhart Company Incorporated 5750 Castle Creek Parkway, Suite 245 Indianapolis, IN 46250 john.lee@nyhart.com Phone: 317-845-3594 ARTICLE 6 — INSURANCE, INDEMNIFICATION, AND LIMITATION OF LIABILTY 6.1 The following insurance coverage required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant. Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self -insured or exempt from the workers' compensation laws of the State of California. Consultant shall execute and provide City with Exhibit "D," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C. Consultant shall secure and maintain professional liability insurance throughout the term of this Agreement in the amount of One Million Dollars ($1,000,000) per claim made. D. Business Auto Liability coverage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Consultant owned vehicles used in connection with Consultant's provision of the Services, hired and non -owned vehicles, 3 I9emo\Agreements\Agreement wNyhart Co Ine.bm.07.14.2026.FY2728-13.doex and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self- insurance maintained by City. E. Consultant is expressly prohibited from assigning or subcontracting any of the Services without the prior written consent of City. In the event of mutual agreement by the Parties to assign or subcontract a portion of the Services, Consultant shall add such assignee or subcontractor as an additional insured to the insurance policies required hereby and provide City with the insurance endorsements prior to any Services being performed by the assignee or subcontractor. 6.2 Consultant shall defend, indemnify and hold harmless City and its elected and appointed officials, employees and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by any negligent act or omission by, or the willful misconduct of, Consultant, or its officers, employees and agents in performing the Services. 6.3 The liability of Consultant, in tort, contract or otherwise, to City, a Plan and its officials, employees and agents, 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 twice the amount of fees for Services received by Consultant 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 Consultant or which cannot lawfully be limited, modified or excluded. ARTICLE 7 — CONFLICTS OF INTEREST 7.1 Consultant covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's Services. Consultant further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 7.2 Consultant agrees it is not a designated employee within the meaning of the Political Reform Act because Consultant: A. Does not make a governmental decision whether to: (i) approve a rate, rule or regulation, or adopt or enforce a City law; (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authorization or entitlement; 4 L\cmo\Agreements\Agreement w Nyhart Co Inc.bm.07.14.2026.FY2728-13.docx (iii) authorize City to enter into, modify or renew a contract; (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item; (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof. B. Does not serve in a staff capacity with City and in that capacity, participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302. 7.3 In the event City determines that Consultant must disclose its financial interests, Consultant shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Clerk's office pursuant to the written instructions provided by the City Clerk. ARTICLE 8 — GENERAL CONSIDERATIONS 8.1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in- house counsel by a Party. 8.2 Consultant shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement. Any assignment or attempted assignment without such prior written consent may, in the sole discretion of City, result in City's immediate termination of this Agreement. 8.3 Consultant is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor. Neither City nor any its agents shall have control over the conduct of Consultant or Consultant's employees, except as herein set forth. Consultant shall supply all necessary tools and instrumentalities required to perform the Services. Assigned personnel employed by Consultant are for its account only, and in no event shall Consultant or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City. Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind City to any obligation. 8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less than five (5) days prior written notice to Consultant of City's intent to terminate. If this Agreement is terminated by City, an adjustment to Consultant's compensation shall be made, but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) any payment due Consultant at the time of termination may be adjusted to the extent 5 I:1cmo\Agreements\Agreement wNyhart Co Inc.bm.07.14.2026.CY2728-13.doex ,of any additional costs to City occasioned by any default by Consultant. Upon receipt of a termination notice, Consultant shall immediately discontinue its provision of the Services and, within five (5) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, design calculations, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing the Services. Consultant shall be compensated on a pro-rata basis for Services completed up to the date of termination. Consultant may terminate this Agreement upon thirty (30) days prior written notice to City. Notice shall be given in accordance with the requirements for all notices pursuant to this Agreement set forth above. 8.5 Consultant shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. Such books shall be available at reasonable times for examination by City at the office of Consultant. 8.6 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement. Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant. 8.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in San Bernardino County, California, and the federal courts located in Riverside County, California. 8.8 If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement. 6 IAemo\Agreements\Agreement w Nyhart Co Inc.bm.07.14.2026.AY2728-t3.docx IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed in confirmation of this Agreement. CITY OF REDLANDS By: Charles M. Duggan, ty Ngnager ATTEST: J c Donaldson, City Clerk THE HOWARD E NYHART COMPANY INCORPORATED By. n Lee, National Healthcare Director- Nyhart 7 I: 1cmolAgreementslAgreement wNyhart Co Inc.bm.07.14.2026.FY2728-13.doex EXHIBIT "A" SCOPE OF SERVICES Consultant will prepare a new biennial GASB 75 Actuarial Valuation as of June 30, 2026. This valuation serves as the foundation of information needed for the City's GASB 75 reporting. For the initial term and each optional Extended Tenn, the valuation of the City's retiree healthcare program as of June 30, the end of each Fiscal year will include: • Measurement of total OPEB (Other Post -Employment Benefits) liability by bargaining unit and roll -forward data 1. Consultant will coordinate with City staff to determine an appropriate actuarial cost method and selection of data. • Preparation of all GASB (Governmental Accounting Standards Board) 75 disclosure for inclusion in the City's Annual Comprehensive Financial Report (ACFR), including notes and required supplementary information. Items to be presented in report include but are not limited to: 1. Executive Summary of Results 2. Summary of actuarial assumptions & plan provisions • Calculation of OPEB expense, deferred inflows and outflows, sensitivity analyses, and related schedules • Actuarial certification and ongoing consultation related to OPEB and GASB matters • Assistance in implementing any new GASB statements and other financial pronouncements related to OPEB and providing ongoing professional consultation • Coordination with City staff and external auditors, including participation in remote meetings as needed. An actuarial valuation report and all other required information to report in the ACFR should be provided no later than August 15th of each year. 8 I:\cmo\Agreements\Agreement w Nyhart Cc Inc. bm.07.142026. FY2728-13.docx EXHIBIT 'B" PROJECT SCHEDULE Initial Term: Services provided to the City related to the GASB 75 Actuarial Valuation for the fiscal year ending June 30, 2026, will run for Fiscal Year 2026. For the interim valuation of Fiscal Year 2027, Consultant will roll forward the liability to the current measurement date. First Extended Term: Services provided to the City related to the GASB 75 Actuarial Valuation for the fiscal year ending June 30, 2028, will run for Fiscal Year 2028. For the interim valuation, of Fiscal Year 2029, Consultant will roll forward the liability to the current measurement date. Second Extended Tenn: Services provided to the City related to the GASB 75 Actuarial Valuation for the fiscal year ending June 30, 2030, will run for Fiscal Year 2030. For the interim valuation of Fiscal Year 2031, Consultant will roll forward the liability to the current measurement date. C\cmo\Agreements\Agreement w NyhartCo Inc.bm.07.14.2026.FY2728-13.doex EXHIBIT "C" FEE SCHEDULE F 5ASB75Valuation $ 7,800.00 $ 2,600.00 1 $ 8,000.00 $ 2,650.00 $ 8,200.00 1 $ 2,700.00 fatal $ 31,950.00 If a results breakdown (Total OPEB Liability, Fiduciary Net Position, Net OPEB Liability, OPEB Expense, and Deferred Outflows/Inflows) by group or reporting unit is requested, there will be an additional fee of 10% for a two -group breakdown, plus an additional 1% for each extra group -breakdown requested, limited to no more than % of the current year's fees. This fee may be waived if the City lets Consultant know in advanced the number of breakdown groups. Hourly Rates For projects that are to be billed on a time and materials basis the hourly rates shown below will apply. ]0 [A mo\Agreements\Agreement w Nyhart Co Inc. bm.07.14.2026.FY2728-13.doex EXHIBIT "D" WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State. (b) By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. CHECK ONE N I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required or permitted under this Agreement. (Labor Code §1861). I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California. However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. THE HOWARD E NYHART COMPANY INCORPORATED By:_// /~ Date: 7/16/2026 Job Lee, National Healthcare Director-Nyhart 11 I:\cmo\Agreciments\AgreementwNyhart Co Inc.bm.07.14.2026.FY2728-13.docx