HomeMy WebLinkAboutAgreement A-20-033 with Nationwide Retirement Solutions Inc..pdf1
2
AGREEMENT
Agreement No . 20-033
3 THIS AGREEMENT is made and entered into this 21 st day of January , 2020 , by and
4 between the COUNTY OF FRESNO , a Political Subdivision of the State of California , hereinafter
5 referred to as "COUNTY", and Nationwide Retirement Solutions , Inc., a Delaware corporation ,
6 whose address is 10 W . Nationwide Blvd ., Columbus , Ohio 43015 , hereinafter referred to as
7 "CONTRACTOR".
8 WI T N E S S E T H:
9 WHEREAS , COUNTY , pursuant to and in compliance with the Internal Revenue Code of
10 1986 , as amended (hereinafter referred to as the "Code "), established and sponsors a Section
11 457(b) Plan (hereinafter the "Plan "); and
12 WHEREAS , the COUNTY desires to have CONTRACTOR perform the non -discretionary
13 record keeping and administrative services for the Plan described in this AGREEMENT
14 (hereinafter referred to as "Administrative Services "); and
15 WHEREAS , CONTRACTOR desires to provide such Administrative Services subject to the
16 terms and conditions set forth in this AGREEMENT.
17 NOW, THEREFORE , in consideration of the mutual covenants, terms and conditions
18 herein contained , the parties hereto agree as follows :
19 1. OBLIGATIONS OF THE CONTRACTOR : CONTRACTOR shall provide
20 Administrative Services as described in the COUNTY'S Request for Proposal No . 19-071 ,
21 including Addendum Number One (1 ), cumulatively referred to as "COUNTY's RFP 19-071 ,"
22 and the CONTRACTOR 'S Proposal in response thereto , both attached hereto as Attachment A
23 and incorporated herein by reference . Such services include but are not limited to :
24 A PARTICIPANT ENROLLMENT, COMMUNICATION & EDUCATION
25 CONTRACTOR agrees to establish an account for each Plan participant,
26 beneficiary and alternate payee (for purposes of this Agreement only, hereinafter referred to as
27 "participants "). For each such account, CONTRACTOR will record and maintain the following
28 information , provided CONTRACTOR is provided with same :
-1-
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1) name;
2) Social Security number;
3) mailing address;
4) date of birth;
5) current investment allocation direction;
6) contributions allocated and invested;
7) investment transfers;
8) benefit payments;
9) current account balance;
10) transaction history since funding under the Agreement;
11) contributions since funding under the Agreement;
12) email address;
13) beneficiary designation;
14) benefit tax withholding information; and
15) such other information as agreed upon by COUNTY and
CONTRACTOR.
CONTRACTOR will post and credit the amounts transmitted by the COUNTY to the
accounts of Plan participants in accordance with the latest instructions from participants or the
COUNTY (as applicable) on file with CONTRACTOR, which instructions can include direction via
electronic sources such as the website or the interactive voice response system.
CONTRACTOR agrees to process the enrollment of employees who are eligible
to participate in the Plan, as determined by the COUNTY. CONTRACTOR also agrees to
conduct enrollment meetings with COUNTY’S employees in such number and manner as
determined by the parties. The COUNTY agrees to allow and facilitate the periodic distribution
of materials to Plan participants at the time and in the manner determined by the COUNTY;
provided however, that all reasonable expenses associated with such distribution shall be paid
by CONTRACTOR. The COUNTY further agrees, upon review and approval by COUNTY, to
allow and facilitate the periodic distribution to its employees of materials prepared by
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONTRACTOR regarding products and services offered by CONTRACTOR, or its affiliates,
which CONTRACTOR reasonably believes would be beneficial to such Plan participants.
B. PLAN CONTRIBUTIONS
COUNTY agrees to send all Plan contributions to CONTRACTOR on a timely basis
that is in compliance with all applicable legal requirements. CONTRACTOR agrees to post funds
received as contributions to the Plan in accordance with the separate funding agreements
between COUNTY and CONTRACTOR or any of its affiliates when received from the COUNTY in
good order by CONTRACTOR. The term “in good order,” as used with respect to Plan
Contributions, means that Plan contributions and contribution allocation information must meet all
of the following requirements in order to be deemed to be in good order:
1) All records must include the correct and complete participant name,
Social Security number, and the amounts to be credited to the participant’s account;
2) The source of the funds must be identified (457(b) salary reduction,
employer contribution, etc.);
3) The Plan name and Plan number must be clearly identified;
4) Both the participant allocation detail and the total contribution amount
must be received, and these two totals must match each other; and
5) All participants making or receiving a contribution must have an active
account in the Plan.
Funds may be sent by wire transfer, through an automated clearinghouse or by
check in accordance with written instructions provided by CONTRACTOR. Failure to follow the
written instructions provided by CONTRACTOR may result in delay of posting to participant
accounts. All contribution allocation information with respect to participant accounts will be
provided to CONTRACTOR in a mutually agreed upon format.
If CONTRACTOR makes a determination that the contribution or allocation detail is
not in good order, CONTRACTOR shall notify the COUNTY of such determination within a
reasonable amount of time upon discovery. After such notification, the parties will continue to try
to resolve the not in good order status, but if resolution is not achieved, CONTRACTOR shall
-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
return the funds to the COUNTY within thirty (30) Business Days. CONTRACTOR will not be liable
for any delay in posting if the COUNTY fails to send the funds representing contribution amounts
or contribution allocation information in accordance with CONTRACTOR’S instructions to the
central processing site designated by CONTRACTOR, or for any delay in posting that results from
the receipt of funds and/or contribution allocation that CONTRACTOR determines to be not in
good order.
As used in this Agreement, the term “Business Day” means each Monday through
Friday during the hours the New York Stock Exchange is open for business. No transactions can
be completed on any Business Day after such time as the New York Stock Exchange closes.
C. SERVICES WITH RESPECT TO PARTICIPANT PLAN ACCOUNTS
1) CONTRACTOR will provide a secure Internet site that complies with
applicable data protection and privacy laws. This site shall include multi-factor authentication,
information encryption using Secure Sockets Layer, and a secure firewall. CONTRACTOR shall
apply encryption methodology that conforms to the NIST approved algorithms, key lengths, and
related standards. Using this site, participants may: (i) obtain information regarding their accounts,
and (ii) conduct certain routine transactions with respect to their accounts. The COUNTY
authorizes CONTRACTOR to honor instructions regarding such transactions that may be
submitted by a participant using the secure Internet site. CONTRACTOR shall implement
reasonable physical and technical safeguards to protect personal information made available on
its Internet site. Such safeguards shall be no less rigorous than generally accepted industry
practices.
2) Participants will have the unlimited ability to increase (within the
limitations of Section 457(b) of the Code) or decrease contributions to the Plan. All requests to
increase or decrease contribution amounts will be processed by CONTRACTOR within five (5)
Business Days of receipt of the request, but will become effective (1) as soon as allowed by
applicable laws and regulations, and/or (2) the date the contribution change can be processed by
the COUNTY given COUNTY’S payroll processing schedule.
3) Participants will have the ability to exchange existing account balances,
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in full or in part, and to redirect future contributions from one investment option offered by the Plan
to another on any Business Day, subject to CONTRACTOR policies and any applicable
restrictions or penalties applied by the investment options.
4) Participants will receive consolidated quarterly statements detailing their
account activity and account balances for the Plan.
5) CONTRACTOR agrees to deliver account statements (by U.S. mail or
electronically) to participants within thirty (30) calendar days after the end of each calendar
quarter. This timeframe is contingent upon CONTRACTOR receiving fund returns from the mutual
fund providers within four (4) Business Days after the end of each quarter.
6) CONTRACTOR agrees to provide reports to the COUNTY within thirty
(30) calendar days following the end of each calendar quarterly reporting period (March 31, June
30, September 30, and December 31) summarizing the following:
a. All participant activity that transpired during the reporting period;
b. Total contributions allocated to each investment or insurance option
under the Plan; and
c. Total withdrawals by participant. This report shall include the
amount, type and date of withdrawal.
7) CONTRACTOR agrees to maintain, for at least the amount of time as
required by law, related paper and/or electronic records necessary to produce any required
reports.
8) CONTRACTOR agrees to maintain all information obtained from or
related to all Plan participants as confidential. COUNTY and CONTRACTOR agree that
CONTRACTOR, its officers, employees, brokers, registered representatives, affiliates, vendors
and professional advisors (such as attorneys, accountants and actuaries) may use and disclose
Plan and participant information only to enable or assist it in the performance of its duties
hereunder and with other Plan-related activities, and COUNTY expressly authorizes
CONTRACTOR to disclose Plan and participant information to its agents and/or broker of record
on file with CONTRACTOR. Notwithstanding anything to the contrary contained herein, it is
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
expressly understood that CONTRACTOR retains the right to use any and all information in its
possession in connection with its defense and/or prosecution of any litigation which may arise in
connection with this Agreement, the investment arrangement funding the Plan, or the Plan;
provided, however, in no event will CONTRACTOR release any information to any person or entity
except as permitted by applicable law.
D. DISTRIBUTIONS
1) CONTRACTOR shall make all distributions as directed by a Plan
participant or the COUNTY, in accordance with the County of Fresno 457(b) Plan Document
(hereinafter referred to as “Plan Document”). All distributions will be made pro-rata from each of
the participant’s investment options and money sources unless directed otherwise by the
participant. Participants are responsible for selecting a form of payment from those available
under the terms of the Plan and making all other elections regarding available distribution options,
such as rollover elections.
2) CONTRACTOR shall furnish each participant, who has received a
benefit payment, tax reporting forms in the manner and time prescribed by federal and state law.
COUNTY shall be responsible for all tax reporting requirements for periods prior to the effective
date of this Agreement, or after the termination date of this Agreement, unless otherwise agreed to
in writing by the parties to this Agreement in any prior agreements.
3) To the extent required by federal and state law, CONTRACTOR will
calculate and withhold from each benefit payment federal and state income taxes.
CONTRACTOR will report such withholding to the federal and state governments as required by
applicable law. COUNTY shall be responsible for all tax reporting requirements for periods prior to
the effective date of this Agreement, or after the termination date of this Agreement, unless
otherwise agreed to in writing by the parties to this Agreement in any prior agreements.
4) CONTRACTOR will provide notice and a distribution form to each
participant attaining age 70½ or older in the current calendar year. The notice will inform the
participant that required minimum distributions must begin no later than the April 1 of the calendar
year following the later of attainment of age 70½ or retirement. All required minimum distributions
-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
will be made in accordance with the Plan Document.
5) CONTRACTOR shall administer participant and beneficiary unclaimed
property funds, including but not limited to uncashed distribution checks and death claims, in
accordance with the Plan Document.
E. RETIREMENT SPECIALIST: CONTRACTOR will provide a full-time
retirement specialist to the Plan and provide at minimum four (4) group education sessions and
two-hundred (200) individual consultations with participants annually.
F. QUALIFIED DOMESTIC RELATIONS ORDERS
The COUNTY directs CONTRACTOR to process Qualified Domestic Relations
Orders (hereinafter “QDROs”) in accordance with the COUNTY’S QDRO policy, upon direction
given by the COUNTY’S review and approval of such QDROs. The COUNTY may assess a fee
for such review at the direction and determination of the COUNTY to offset any legal fees
associated with QDRO review. This fee shall be taken from participant and alternate payee
account balances, pursuant to the COUNTY’S QDRO policies and procedures.
G. UNFORESEEABLE EMERGENCY WITHDRAWALS
The COUNTY instructs CONTRACTOR to process all unforeseeable emergency
withdrawal requests received in a manner satisfactory to CONTRACTOR. Withdrawals will only
be permitted due to an unforeseeable emergency resulting in a severe financial hardship to the
participant or beneficiary that cannot be alleviated by any other means available to the participant,
in accordance with CONTRACTOR’S standard unforeseeable emergency procedures. COUNTY
hereby approves the use of such standard unforeseeable emergency procedures to make these
determinations.
H. WEBSITE
CONTRACTOR will create and maintain a website for and on behalf of the
COUNTY for the use of its participants. Participants may access the website via the internet at
www.Fresno457.com to review and make changes to their accounts. The “www.Fresno457.com”
URL is the exclusive property of COUNTY. The website is available twenty-four (24) hours a day,
except for routine maintenance of the system.
-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. INTERACTIVE VOICE RESPONSE SYSTEM
CONTRACTOR will provide an interactive voice response system (IVR) toll-free
phone number, which shall be operative twenty-four (24) hours per day, seven (7) days per week,
except for routine maintenance of the system. Participants shall be able to conduct routine Plan
transactions and obtain account balance information through the IVR. The COUNTY authorizes
CONTRACTOR to honor participant instructions, which may be submitted using the toll-free
number, either through the IVR or a live representative. The phone number “1-877-693-2457” is
the exclusive property of COUNTY.
J. CUSTOMER SERVICE
CONTRACTOR’s solutions center representatives will be available toll-free to
answer participant’s questions and process applicable transactions between the hours of 5:00
a.m. and 8:00 p.m. Pacific Time each Monday through Friday, and between the hours of 6:00 a.m.
and 3:00 p.m. Pacific Time each Saturday, with the exception of certain holidays as dictated by
the New York Stock Exchange holiday trading schedule.
K. PARTICIPANT ENGAGEMENT PROGRAM
1) CONTRACTOR will make available, a personalized communication
program (“Participant Engagement Program” or “PEP”) at no additional cost to the COUNTY
designed to engage participants in retirement planning and motivate them to take action to
improve their financial future. The program may include delivery methods such as email, digital
messaging, social media targeting and direct mail.
2) COUNTY understands that CONTRACTOR may use a third-party
marketing firm to provide the PEP, that the use of a third-party marketing firm may be essential to
provide the PEP due to its personalized features, and that such a program cannot be offered
without such use. CONTRACTOR shares participant data with the marketing firm to allow it to
target the appropriate retirement plan messages to each participant based on the participant’s
individual characteristics, demographics, and behaviors while considering the participant’s
preferences for accessing information, electronically or otherwise for more impactful delivery.
3) To facilitate the personalized communication program, COUNTY
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
approves the sharing of data with a third-party marketing firm. Participant data will only be shared
with the third-party marketing firm for Plan-related purposes. Participant data can include
demographic, Plan-related, and information used in the My Interactive Retirement Planner tool.
Only third-party marketing firms that comply with all applicable state and federal privacy laws,
including the relevant provisions of the Gramm-Leach-Bliley Act, will be utilized. All participant
data will be secured and protected at all times to avoid unauthorized access, and the third-party
marketing firm must agree to abide by all current applicable legal and industry-standard data
security and privacy requirements.
4) For the purposes of this Agreement, the third-party marketing firm or
firms which CONTRACTOR utilizes to perform services described under this subparagraph K shall
be considered “officers, agents, or employees” of CONTRACTOR, as defined in Section 10, Hold
Harmless, below.
2. OBLIGATIONS OF THE COUNTY
The COUNTY shall, upon request, timely provide all information required by
CONTRACTOR to perform its services to the Plan as described in this Agreement. The
COUNTY shall be responsible for ensuring that the provided information is accurate and
complete. CONTRACTOR shall be entitled to rely exclusively on the information provided by
the COUNTY, whether oral or in writing.
3. TERM
The term of this Agreement shall be for a period of three (3) years, commencing on
January 24, 2020 through and including January 23, 2023. This Agreement may be extended for
two (2) additional consecutive twelve (12) month periods upon written approval of both parties no
later than thirty (30) days prior to the first day of the next twelve (12) month extension period. The
Director of Human Resources or his or her designee is authorized to execute such written
approval on behalf of COUNTY based on CONTRACTOR’S satisfactory performance.
4. TERMINATION
A. Non-Allocation of Funds - The terms of this Agreement, and the services to
be provided hereunder, are contingent on the approval of funds by the appropriating government
-10-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
agency. Should sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written
notice.
B. Breach of Contract –
The COUNTY or CONTRACTOR may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of either Party there is:
1) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement;
3) A substantially incorrect or incomplete report submitted to the COUNTY;
4) Improperly performed service;
5) Failure to adopt and/or comply with a change required by federal or
state law or regulation.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY
of any breach of this Agreement or any default which may then exist on the part of the
CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the
COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of
the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR
under this Agreement, which in the judgment of the COUNTY were not expended in accordance
with the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon
demand.
C. Without Cause – Under circumstances other than those set forth above, this
Agreement may be terminated by COUNTY upon the giving of ninety (90) days advance written
notice of an intention to terminate to CONTRACTOR. COUNTY will provide a letter signed by an
authorized representative of the COUNTY stating their intent to terminate the Agreement and
provide the termination date. Provision of such written notice of termination by COUNTY to
CONTRACTOR does not relieve the COUNTY of any termination requirements that may be
associated with specific investment options. COUNTY further acknowledges and agrees that the
Plan is responsible for any investment product liquidation fees, if applicable, and that neither
-11-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONTRACTOR nor any of its affiliates assumes liability for any such fees.
D. Upon the effective date of termination of this Agreement, due to the events
described in Paragraphs A, B, or C of this Termination Section, the following shall occur:
1) CONTRACTOR will no longer accept any additional deferrals to the
Plan except by mutual agreement of the parties.
2) On the effective date of termination pursuant to this Section, or as
otherwise agreed upon by the parties, CONTRACTOR will provide COUNTY, or other such entity
as the COUNTY may designate in writing, a copy of all records relating to services rendered under
this Agreement, including participant sub-accounts, in a format and media agreed upon by the
parties.
3) On the effective date of termination pursuant to this Section, or as
otherwise agreed upon by the parties, CONTRACTOR will transfer all Plan assets under its
control to the COUNTY or to such other entity as the COUNTY may designate in writing.
CONTRACTOR agrees to provide a final accounting of all Plan assets for which CONTRACTOR
provides recordkeeping.
5. COMPENSATION
A. As compensation for the performance of the Administrative Services
provided by CONTRACTOR pursuant to this Agreement, the COUNTY and CONTRACTOR
agree that CONTRACTOR shall be entitled to receive an annualized compensation requirement of
0.10% (10 basis points) of the Plan’s account value held by CONTRACTOR (“Compensation
Requirement”) to be calculated and collected according to CONTRACTOR’S standard business
practices. CONTRACTOR’S Compensation Requirement will be calculated and assessed
monthly based on the market value of total Plan assets held by CONTRACTOR as of the last
Business Day of each month. The Compensation Requirement will be calculated and assessed as
follows: Compensation Requirement x Total Plan Assets on Last Business Day of Month x
(number of calendar days since the last fee was assessed) / (number of days in the calendar year)
at market close. CONTRACTOR’S Compensation Requirement will be taken in the form of an
explicit asset management charge applied against all Plan assets under management, excluding
-12-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
outstanding participant loan balances.
B. COUNTY directs CONTRACTOR to assess and collect an additional asset
management charge, as determined by the Deferred Compensation Management Council, to be
applied against all Plan assets under management, excluding participant loan balances, to be
remitted to and used by the COUNTY for reasonable and necessary Plan related expenses. This
additional asset management charge will be calculated and collected from participant accounts
according to CONTRACTOR’S standard business practices as described in 5.A above. This Plan
expense charge will be in addition to CONTRACTOR’S Compensation Requirement described in
Section 5.A above. COUNTY will provide CONTRACTOR with direction in writing as to the
amount of this additional asset management charge.
C. CONTRACTOR will place $30,000 at risk towards the following performance
guarantees:
Activity Quality Standard $ at Risk
Participation Rate Increase
CONTRACTOR will increase
participation rate 15% over
the duration of the contract
term. Participation rate of
53.74% as of 9/30/19 will
determine the beginning rate,
with a final rate of 61.80% at
the end of the contract term.
$14,700 payable at the end
of the contract term
Contribution reconciliation
CONTRACTOR will reconcile
contributions within three (3)
business days from receipt of
deposit if received in good
order
$1,700 per annum if less than
99%
Contribution posting
CONTRACTOR will post
contributions within three (3)
business days from receipt of
deposit if received in good
order
$1,700 per annum if less than
99%
Hardship withdrawals paid
CONTRACTOR will process
hardship withdrawals within
three (3) business days from
receipt of request if received
in good order
$1,700 per annum if less than
99%
-13-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Loans funded
CONTRACTOR will fund
loans within five (5) business
days from receipt of request if
received in good order
$1,700 per annum if less than
99%
Distributions paid
CONTRACTOR will process
distributions within five (5)
business days from receipt of
request if received in good
order
$1,700 per annum if less than
99%
Investment fund transfers
processed
CONTRACTOR will process
investment fund transfers the
same day if received before
the close of the NYSE if
received in good order
$1,700 per annum if less than
99%
Rollovers into Plan
processed
CONTRACTOR will process
and invest rollovers into the
Plan within five (5) business
days from receipt of deposit if
received in good order
$1,700 per annum if less than
99%
Participant statements mailed
CONTRACTOR will mail
statements to participants
within twenty (20) calendar
days after the end of each
quarter
$1,700 per annum
Average wait time for call
center
CONTRACTOR agrees to an
average wait time of forty
(40) seconds
$1,700 per annum if less than
99%
Fees associated with the failure to meet the performance standards outlined in this
Paragraph C of the Compensation Section shall be paid directly to the Plan.
D. CONTRACTOR will provide the COUNTY with a quarterly Compensation
Requirement report within thirty (30) Business Days after the end of each quarter.
E. The COUNTY acknowledges that CONTRACTOR and its affiliates receive
payments in connection with the sale and servicing of investments allocated to participant Plan
account (“Investment Option Payments”). The Investment Option Payments include mutual fund
service fee payments as described in detail at www.Fresno457.com, and other payments received
from investment option providers. The COUNTY directs CONTRACTOR to credit all Investment
Option Payments to participant accounts on a quarterly basis. The Investment Option Payments
-14-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shall be credited to participant accounts on a pro-rata basis based on each participant’s total
assets held in all Plan investment options that generated the Investment Option Payments.
F. The COUNTY directs CONTRACTOR to establish and maintain a separate
account (the “Plan Expense Account”) to which the asset management charge referred to in
Section 5.B will be credited. The Plan Expense Account will be funded on a quarterly basis. The
COUNTY will select a single investment vehicle to be used for the Plan Expense Account, which
cannot be an investment vehicle included in the participant investment option lineup. The
COUNTY will direct CONTRACTOR, in writing, to pay reasonable and necessary Plan expenses
directly to the COUNTY or to a Plan service provider.
1) When each invoice is submitted to CONTRACTOR for payment, the
COUNTY shall certify in writing that the expenses represented by the invoice are reasonable and
necessary Plan expenses. As the fiduciary of the Plan, the COUNTY is solely responsible for
making determinations with respect to the appropriateness of all expenses of the Plan and how
the Plan Expense Account is managed.
2) The account balance, account transactions and investment experience
of the Plan Expense Account will be reported to the COUNTY no later than thirty (30) Business
Days after the end of each calendar quarter.
3) At the direction of COUNTY, any balance in the Plan Expense Account
that has not been applied to pay for reasonable and necessary Plan expenses can be allocated to
participant accounts on a pro-rata basis based on their total account balance on an annual basis
to be mutually determined and agreed to by the parties.
G. To the extent offered under the Plan, in addition to the above described fees,
CONTRACTOR shall also receive fees with respect to a participant’s use of participant loan
administration as follows:
1) Loans – All participant loan fees are governed by CONTRACTOR’S
Plan Loan Procedures document, as approved by the Deferred Compensation Management
Council.
Fees related to participant loans are in addition to the Compensation
-15-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Requirement for Administrative Services as provided in this Agreement.
H. In no event shall services performed under this Agreement be in excess of
$2,000,000 during the term of this Agreement. It is understood that all expenses incidental to
CONTRACTOR'S performance of services under this Agreement shall be borne by
CONTRACTOR.
6. INVESTMENT OPTIONS: CONTRACTOR agrees to accept contributions to the
Plan for investment in the investment options selected for the Plan by the COUNTY or other
responsible Plan fiduciary in its sole discretion and agreed to by CONTRACTOR. COUNTY
agrees to accept the terms and conditions of the annuity contracts, mutual funds, and any other
investment products selected for the Plan after being provided with a copy of the same.
7. INDEPENDENT CONTRACTOR: In performance of the work, duties and
obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and
agreed that CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and
employees will at all times be acting and performing as an independent contractor, and shall act in
an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or
associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or
direct the manner or method by which CONTRACTOR shall perform its work and function.
However, COUNTY shall retain the right to administer this Agreement so as to verify that
CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof.
CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the
rules and regulations, if any, of governmental authorities having jurisdiction over matters the
subject thereof.
Because of its status as an independent contractor, CONTRACTOR shall have absolutely
no right to employment rights and benefits available to COUNTY employees. CONTRACTOR
shall be solely liable and responsible for providing to, or on behalf of, its employees all
legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
including compliance with Social Security withholding and all other regulations governing such
-16-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be
providing services to others unrelated to the COUNTY or to this Agreement.
8. MODIFICATION: Any matters of this Agreement may be modified from time to time
by the written consent of all the parties without, in any way, affecting the remainder.
9. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this
Agreement nor their rights or duties under this Agreement without the prior written consent of the
other party. This provision shall not restrict CONTRACTOR’S right to delegate certain services to
an agent, including an affiliate, without having to obtain written consent of COUNTY first. Unless
agreed to by the parties, no such assignment shall relieve any party of this Agreement of any
duties or responsibilities herein.
10. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless,
and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any
and all costs and expenses (including attorney’s fees and costs), damages, liabilities, claims,
and losses occurring or resulting to COUNTY in connection with any error or omission, by
CONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all
costs and expenses (including attorney’s fees and costs), damages, liabilities, claims, and
losses occurring or resulting to any person, firm, or corporation who may be injured or damaged
by any error or omission, of CONTRACTOR, its officers, agents, or employees under this
Agreement, except to the extent COUNTY has caused or significantly contributed to the error or
omission.
11. INSURANCE
Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any
third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
following insurance policies or a program of self-insurance, including but not limited to, an
insurance pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the
Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars
-17-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00).
This policy shall be issued on a per occurrence basis. COUNTY may require specific coverages
including completed operations, products liability, contractual liability, Explosion-Collapse-
Underground, fire legal liability or any other liability insurance deemed necessary because of the
nature of this contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should
include any auto used in connection with this Agreement.
C. Professional Liability
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual
aggregate.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
E. Cyber Liability
Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or
claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and
obligations as is undertaken by CONTRACTOR in this agreement and shall include, but not be
limited to, claims involving infringement of intellectual property, including but not limited to
infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft,
damage to or destruction of electronic information, release of private information, alteration of
electronic information, extortion and network security. The policy shall provide coverage for
breach response costs as well as regulatory fines and penalties as well as credit monitoring
expenses with limits sufficient to respond to these obligations.
Additional Requirements Relating to Insurance
-18-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance
naming the County of Fresno, its officers, agents, and employees, individually and collectively, as
additional insured, but only insofar as the operations under this Agreement are concerned. Such
coverage for additional insured shall apply as primary insurance and any other insurance, or
self-insurance, maintained by COUNTY, its officers, agents and employees shall be excess only
and not contributing with insurance provided under CONTRACTOR's policies herein. This
insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written
notice given to COUNTY.
CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and
employees any amounts paid by the policy of worker’s compensation insurance required by this
Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy that
may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of
subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an
endorsement.
Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement,
CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of
the foregoing policies, as required herein, to the County of Fresno, Paul Nerland, Director of
Human Resources, 2220 Tulare Street, 14th Floor, Fresno, CA 93721, stating that such insurance
coverage have been obtained and are in full force; that the County of Fresno, its officers, agents
and employees will not be responsible for any premiums on the policies; that for such worker’s
compensation insurance, the CONTRACTOR has waived its right to recover from the COUNTY,
its officers, agents, and employees any amounts paid under the insurance policy and that waiver
does not invalidate the insurance policy; that such Commercial General Liability insurance names
the County of Fresno, its officers, agents and employees, individually and collectively, as
additional insured, but only insofar as the operations under this Agreement are concerned; that
such coverage for additional insured shall apply as primary insurance and any other insurance, or
self-insurance, maintained by COUNTY, its officers, agents and employees, shall be excess only
and not contributing with insurance provided under CONTRACTOR's policies herein; and that this
-19-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
insurance shall not be cancelled or changed without a minimum of thirty (30) days advance,
written notice given to COUNTY.
In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein
provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this
Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the State of
California, and such insurance shall be purchased from companies possessing a current A.M.
Best, Inc. rating of A FSC VII or better.
12. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during
business hours, and as often as the COUNTY may deem necessary, make available to the
COUNTY for examination all of its records and data with respect to the matters covered by this
Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to
audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance
with the terms of this Agreement.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
subject to the examination and audit of the Auditor General for a period of three (3) years after
final payment under contract (Government Code Section 8546.7).
13. NOTICES: All notices, demands or other communications provided for or required
by the Agreement (or any instrument or document delivered pursuant to this Agreement) will be in
writing. The persons and their addresses having authority to give and receive notices under this
Agreement include the following:
COUNTY CONTRACTOR
COUNTY OF FRESNO Nationwide Retirement Solutions, Inc.
Department of Human Resources 10 W. Nationwide Blvd.
2220 Tulare Street, 14th Floor Columbus, OH 43015
Fresno, CA 93721 Attn: AVP, Client Services
14. GOVERNING LAW: Venue for any action arising out of or related to this Agreement
shall only be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance of this
Agreement shall be governed in all respects by the laws of the State of California.
-20-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15. DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of the agreement, the CONTRACTOR
changes its status to operate as a corporation.
Members of the CONTRACTOR’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while CONTRACTOR is providing goods or performing
services under this agreement. A self -dealing transaction shall mean a transaction to which the
CONTRACTOR is a party and in which one or more of its directors has a material financial
interest. Members of the Board of Directors shall disclose any self -dealing transactions that
they are a party to by completing and signing a Self -Dealing Transaction Disclosure Form,
attached hereto as Exhibit A and incorporated herein by reference, and submitting it to the
COUNTY prior to commencing with the self-dealing transaction or immediately thereafter.
16. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all
previous Agreement negotiations, proposals, commitments, writings, advertisements, publications,
and understanding of any nature whatsoever unless expressly included in this Agreement. In the
event of any inconsistency in interpreting the documents which constitute this Agreement, the
inconsistency shall be resolved by giving precedence in the following order of priority: (1) the text
of this Agreement (excluding Attachment "A"; (2) the COUNTY'S RFP 19-071; and (4) the
CONTRACTOR'S proposal made in response to COUNTY'S RFP 19-071.
///
///
///
///
///
///
///
///
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written .
3
4
5
6
7
8
CONTRACTOR
CnM~= [V\ ~
(Authorized Signature)
Catherine Moore
AVP Client Services
Print Name & Title
9 1 OW. Nationwide Blvd.
10
Colu m bus, OH 43015
11 Maili ng Address
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FOR ACCOUNTING USE ONLY:
Fund :
Subclass :
ORG :
Account:
COUNTY OF FRESNO
£ ~~~---ErnestsGddyMes ·
Chairman of the Board of Supervisors
of the County of Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By : ~SA!i' :&sb?i)
Deputy
-21-
Exhibit A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
Exhibit A
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5) Authorized Signature
Signature: Date: