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HomeMy WebLinkAbout1998-156ORDINANCE NO W I 5-6 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH WILLIAM M MERCER, INC TO PROVIDE PROFESSIONAL SERVICES TO ASSIST THE CITY IN EVALUATING AND SELECTING A HEALTH CARE PROVIDER AND TO PROVIDE RELATED SERVICES AS SET FORTH IN THE CONTRACT, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR AND PROVIDING AN EFFECTIVE DATE (PROFESSIONAL SERVICES AGREEMENT # 2217, AWARDED TO WILLIAM M MERCER INC, IN AN AMOUNT NOT TO EXCEED $64,000 00 PER YEAR) WHEREAS, the City needs a professional consultant to provide professional services, including, without limitation actuarial services, to assist it in selecting the most qualified, lowest responsible bidder to provide health insurance to its employees, develop benefits and design strategy, monitor the ongoing administration of healthcare plans, and to perform other related functions, and WHEREAS, the City Manager has recommended that the City contract with William M Mercer, Inc to provide such services, and WHEREAS, the City Council deems it in the public interest to so contract for such healthcare services, NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is authorized to enter into a contract with William M Mercer, Inc , to provide professional services to evaluate and select the most qualified, lowest responsible provider for health insurance and to provide related services, substantially in the form of the Professional Services Agreement for Health Care Consultant which is attached hereto and made a part of this ordinance as if written word for word herein SECTION II. That the City Manager is hereby authorized to expend the funds as provided in the attached Professional Services Agreement SECTION III That tlus ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the � day of 114 X 1998 JACI ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATT PROPOSAL2217 PROFESSION4 SERVICE ORDINANCE PROFESSIONAL SERVICES AGREEMENT FOR HEALTH CARE CONSULTANT STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the 18th day of July , 19 98 , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and William M Mercer, Incorporated, with its corporate office at 2200 Ross Avenue, Suite 3500, Dallas, TX, 75201, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with health insurance consulting services as stated in the sections to follow, hereinafter sometimes referred to as the Project, with diligence and in accordance with the prevailing professional standards customarily obtained for such services in the State of Texas The professional services set out herein are as follows CONSULTANT shall provide all services mutually agreed between the parties, including but not limited to, actuarial services to assist OWNER in evaluating and selecting the most qualified, lowest responsible bidder to provide health insurance to OWNER's employees, developing benefits design strategy, and monitoring the ongoing administration of health care plans and performance by insurers, as more fully set forth in Article II herein ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A All those services set forth in CONSULTANT's proposal letter dated March 26, 1998, which is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein 1 B If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders ARTICLE III PERIOD OF SERVICE This AGREEMENT shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for a period of 36 months This Agreement is subject to consideration for renewal upon mutual consent of both parties for two additional twelve-month periods, with negotiation of the terms, conditions and cost for the successive years This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or Ins designee, which schedule shall be established after consultation with the CONSULTANT ARTICLE IV COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of the subcontractor or subconsultants work to assist CONSULTANT 2 "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay a set monthly fee of $5 00 per active participating employee per month for the first twelve months of this Agreement The monthly fee per employee will be $5 25 and $5 50 for the second and third years of this Agreement, respectively Consulting fees will be subject to a monthly minimum of $4,000 and a monthly maximum not to exceed $5,000, in addition to any direct non -labor expense The total annual fee for each year of this Agreement, including reimbursement for Direct Non -Labor Expense, shall not exceed $64,000 Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or 2 which is not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT while the CONSULTANT is in default under this Agreement with respect to the work to which the default applies It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, unless CONSULTANT is requested to perform tasks outside the scope presented in this contract If additional assistance is required from the CONSULTANT, estimates of professional fees will be provided and presented to OWNER for approval before proceeding with any additional tasks The CONSULTANT shall not be paid additional payments by the OWNER for any charge, expense, fee or reimbursement above the maximum not to exceed figure nor perform any additional services, without obtaining prior written authorization from the OWNER CONSULTANT and OWNER expressly understand and agree that CONSULTANT shall not receive any compensation for the services provided for herein, from any other source C ADDITIONAL SERVICE For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on a professional fee proposal provided by the CONSULTANT at the time additional services are requested by the OWNER Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60t') day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein with respect to certain work if the OWNER reasonably determines that such work is unsatisfactory, in accordance with this Article IV, "Compensation " 3 ARTICLE V OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractor or subconsultants ARTICLE VI OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) specifically and exclusively for OWNER pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project, but the OWNER shall have the right and authority to use these documents, materials, and data for any purpose Notwithstanding anything to the contrary contained in this Agreement, it is understood and agreed that the CONSULTANT shall retain all of its rights in its methodologies and methods of analysis, ideas, concepts, expressions, know how, methods, techniques, skills, knowledge and experience possessed by the CONSULTANT prior to, or acquired by the CONSULTANT during, the performance of tlus Agreement and the CONSULTANT shall not be restricted in any way with respect thereto ARTICLE VII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right arising from employee status ARTICLE VIII INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting directly from the negligent acts or wrongful omissions of the CONSULTANT or its officers, shareholders, 4 authorized agents, or employees in the execution, operation, or performance of this Agreement Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved ARTICLE IX INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance (other than Professional Liability Insurance) with insurance companies licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above A Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident C Workers' Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident D Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate E The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall contain a provision that such insurance shall not be canceled or materially modified without thirty (30) days' prior written notice to CONSULTANT In such event, CONSULTANT shall provide immediate written notice to OWNER and shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage ARTICLE X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval ARTICLE XI TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days' advance written notice to the other party B This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligation under this Agreement No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall reasonably cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT specifically and exclusively for the OWNER pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use ARTICLE XII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, authorized agents, subcontractors, and subconsultants for the accuracy and competency of their desiSns or other work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, authorized agents, and subconsultants 3 ARTICLE XIII NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein To CONSULTANT William M Mercer, Incorporated 2200 Ross Avenue Suite 3500 Dallas, TX 75201 To OWNER City of Denton Ted Benavides, City Manager 215 East McKinney Denton, TX 76201 All notices shall be deemed effective upon receipt by the parry to whom such notice is given, or within three (3) days' mailing, whichever is earlier ARTICLE XIV ENTIRE AGREEMENT This Agreement, consisting of ten pages and one exhibit, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof ARTICLE XV SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision ARTICLE XVI COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended 7 ARTICLE XVII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XVIII PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may anse during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE XIX ASSIGNABILITY Neither party shall assign any interest in this Agreement, nor transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the other parry ARTICLE XX MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed, and the parties further agree that the provisions of this section will not be waived unless as set forth herein ARTICLE XXI MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement Exhibit A - Proposal letter from CONSULTANT to OWNER dated March 26, 1998 B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Mark Chromster, Jim Falconer, and Brenda Pagel However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of —JaiY' 1998 02 — CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER W ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPRO D AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY WITNESS I� S\Our De m,mAContrecut95NnercervhWN care...Wtent doc WILLIAM M MERCER, INCORPORATED 411 z G�� 10 STATE OF TEXAS COUNTY OF DALLAS This instrument was acknowledged before me on 'lay 11, 1998, by Mark Chro m ster, Associate, of William 111 Mercer, a Delaware Corporation, on behalf of said corporation. James vl. Falconer Notary Public My Commission Expires 12-12-2001