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HomeMy WebLinkAbout5693SUBJECT: Professional Services Agreement withiArthur J., Gallagher & Co. performing a Compensation Study AGENDA BILL CITY OF BREMERTON 6G CITY COUNCIL Study Session Date: for, COUNCIL MEETING Date: Department: Presenter: Phone June 14, 2017 June 21, 2017 City Attorney's Office -HR Charlotte Nelson & Bruce Lawson 3( 60) 473-5926 SUMMARY: BMC 2.50.030 states that a salary survey shall be conducted on Management and Professional Positions every five (5) years or as otherwise appropriate to ensure proper assignment to salary bands. The proposed agreement will allow Arthur J. Gallagher & Co. to complete the required study which will include Management & Professional and Teamsters positions. ATTACHMENTS: Professional Services Agreement FISCAL IMPACTS (Include Budgeted Amount): The fee for services in the agreement is not to exceed $42,000. The Department believes it can absorb the cost in their current budget. STUDY SESSION AGENDA: ® No Presentation ❑ Full Presentation STUDY SESSION ACTION: ® Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to approve the Professional Services Agreement with Arthur J. Gallagher & Co and authorize the Mayor to finalize and execute the contract with substantially the same terms and conditions as presented. COUNCIL ACTION: R'Approve Form Updated 01/07/15 ❑ Deny ❑ Table ❑ Continue ❑ No Action AGREEMENT FOR PROFESSIONAL SERVICES THIS MASTER AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement"), entered into as of (the "Effective Date"), is between Gallagher Benefit Services, Inc., a Delaware corporation ("Gallagher") and The City of Bremerton, WA (the "Client"). Gallagher and Client desire to arrange for the provision of services by Gallagher to the Client as set forth herein. In consideration of the promises and mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. ENGAGEMENT OF SERVICES. From time to time, Gallagher and Client may enter into Project Assignment(s), for the provision of services provided by Gallagher (Projects). The exact nature and scope of the services shall be agreed, and the scope of services shall be detailed, in a Project Assignment. Each Project Assignment shall be governed by the terms and conditions of this Agreement. 2. SCOPE OF PROJECT ASSIGNMENTS. Gallagher will provide any services, functions, or responsibilities related to the services set forth in the Project Assignment that are (a) reasonably required for the proper performance and delivery of such services, functions, or responsibilities in accordance with this Agreement or (b) an inherent part of, or a necessary subpart included within such services, functions or responsibilities. 3. STANDARD FOR PERFORMANCE. Subject to the terms of this Agreement, Gallagher will use its best efforts to render the services and complete the Projects by the applicable completion dates. 4. COMPENSATION. Client will pay Gallagher a fee for services rendered under this Agreement as set forth in the Project Assignment(s) undertaken by Gallagher. Client shall be responsible for all expenses incurred by Gallagher in the performance of its services under this Agreement except where provided for in the Project Assignment. Upon termination of this Agreement for any reason, Gallagher will be paid fees specified on the Project Assignment for work which is then in progress on a proportional basis, and expenses incurred through the effective date of such termination. Unless other terms are set forth in the Project Assignment(s) for Projects which are in progress, Client will pay Gallagher for services and will reimburse Gallagher for previously approved expenses within thirty (30) days of the date of Gallagher's invoice. A finance charge of 1.5% per month on the unpaid amount of an invoice, or the maximum amount allowed by law, will be charged on past due accounts. 5. INDEPENDENT CONTRACTOR RELATIONSHIP. Gallagher's relationship with Client will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agent -principal or employer-employee relationship. In the performance of its duties, Gallagher may rely upon, and will have no obligation to independently verify the accuracy, completeness, or authenticity of, any written instructions or information provided to Gallagher by the Client or its designated representatives and reasonably believed by Gallagher to be genuine and authorized by the Client. Furthermore, Gallagher's engagement under this Agreement will not prevent it from taking similar engagements with other clients who may be competitors of the Client. Gallagher will, nevertheless, exercise care and diligence to prevent any actions or conditions which could result in a conflict with Client's best interest. 6. CONFIDENTIAL INFORMATION. Gallagher recognizes that certain confidential information may be furnished by the Client to Gallagher in connection with its services pursuant to this Agreement ("Confidential Information"). Gallagher agrees that it will disclose Confidential Information only to those who, in Gallagher's reasonable determination, have a need to know such information. Confidential Information will not include information that (i) is in the possession of Gallagher prior to its receipt of such information from the Client, (ii) is or becomes publicly available other than as a result of a breach of this Agreement by Gallagher, or (iii) is or can be independently acquired or developed by Gallagher without violating any of its obligations under this Agreement. However, disclosure by Gallagher of any Confidential Information pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, judicial or administrative agency or by a legislative body or committee will not constitute a violation of this Agreement. 7. REPRESENTATIONS AND WARRANTIES. 7.1. Gallagher Representations and Warranties. Gallagher represents and warrants that its services shall be performed by personnel possessing competency consistent with applicable industry standards. 7.2. Client Representations and Warranties. Client hereby represents and warrants that: (a) materials provided to Gallagher for use in connection with the services provided hereunder will not infringe the intellectual property rights of any third party; and (b) Client has full right and power to enter into and perform this Agreement without the consent of any third party. 7.3. No Other Representations and Warranties. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATION, EXPRESS OR IMPLIED, AND NO WARRANTY OR GUARANTEES ARE INCLUDED OR INTENDED BY GALLAGHER IN THIS AGREEMENT, OR IN ANY REPORT, OPINION, DELIVERABLE, WORK PRODUCT, DOCUMENT OR OTHERWISE. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY GALLAGHER CONCERNING THE MATTERS COVERED BY THIS AGREEMENT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. 8. LIMITED LIABILITY. Gallagher's liability to the Client and any other party for any losses, injury or damages to persons or properties or work performed arising out of in connection with this Agreement and for any other claim, whether the claim arises in contract, tort, statute or otherwise, shall be limited to the amount of the total fees due to Gallagher from Client for the particular Project Assignment giving rise to the claim. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, GALLAGHER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, OR PUNITIVE DAMAGES SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. Client's exclusive remedy for any claim arising out of or relating to this Agreement will be for Gallagher, at its sole option and upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which Gallagher is at fault, or (ii) return to Client the fees paid by Client to Gallagher for the particular service provided that gives rise to the claim, subject to the limitation contained in this section. Client agrees that it will not allege that this remedy fails its essential purpose. 9. CLIENT INFRINGEMENT INDEMNIFICATION. If a third party claims that any information, design, specification, instruction, software, data or material furnished to Gallagher by or on behalf of Client under this Agreement infringes any patent, copyright, trademark or trade secret, Gallagher will promptly notify client in writing. Upon receiving written notice, Client will then defend Gallagher against such claim and Gallagher shall control the defense and all related settlement negotiations, and then Client shall indemnify and hold harmless Gallagher from and against any damages including attorneys' fees, expenses and costs incurred by Gallagher and/or finally awarded against Gallagher for such infringement. 10. CLIENT INDEMNIFICATION. Client shall defend, indemnify and hold harmless Gallagher, its parents, subsidiaries and affiliates, and its and their respective directors, officers, members, shareholders, partners, employees, agents, successors and assigns (Indemnified Parties ) from any claims, demands, lawsuits, damages, liabilities, costs and expenses (including reasonable fees and disbursements of counsel) and judgments and settlements of every kind (Claims ) that may be made by anyone for injuries (including death) to persons or loss or damage to property, including theft, resulting from the acts or omissions of Client including injuries or damages incurred by any person or because Gallagher acts or fails to act based upon the instruction and/or direction of Client or those persons acting on behalf of Client, provided that Client shall only indemnify Gallagher and be liable to the extent of Client's fault, act or omission. Upon receiving written notice from Gallagher, Client, will then defend Gallagher against such claim and Gallagher at its option shall have the right to select counsel and control the defense and all related settlement negotiations, and then Client shall indemnify Gallagher from and against any damages finally awarded or agreed to be paid for such claim. 11. TERM AND TERMINATION. The term of this Agreement will commence on the effective date and shall remain in effect until terminated in accordance with this Agreement. Either party may terminate this Agreement by giving the other party at least thirty (30) days written notice of its intent to terminate. Client shall be responsible to Gallagher for any services performed prior to the date of termination and Gallagher shall be responsible to Client to continue to provide services until the date of termination of this Agreement. Upon termination of the Agreement, contingent upon Client's full payment for services and incurred expenses, Gallagher will deliver to Client any and all of its information, forms and documentation. 12. GENERAL PROVISIONS. 12.1 Assignment and Subcontractors. Client may not assign this Agreement without Gallagher's prior written consent. Gallagher may deem it necessary to outsource or subcontract all or any portion of the services to be performed by it under this Agreement. If this is necessary, Client will be notified of this and has the right to request a professional of their choice. If the person chosen by the Client requires assistance from Gallagher, Client will be billed for Gallagher's time at its regular hourly rate. This Agreement shall inure to the benefit of, and shall be binding upon, both Gallagher and Client and their respective heirs, legal representatives and permitted assigns. 12.2 Force Majeure. Except for Client's payment obligations under this Agreement, neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control. 12.3 No Legal Advice Intended. The advice given by Gallagher is not intended to be nor shall should it be construed as legal advice. Client is recommended, at its own cost, to have its own independent legal counsel review all documentation provided by Gallagher. Gallagher will not be obligated to perform, and the Client will not request performance of, any services which may constitute unauthorized practice of law. The Client will be solely responsible for obtaining any legal advice, review or.opinion as may be necessary to ensure that its own conducfAnd operations, including the engagement of Gallagher under the scope and terms as provided herein, conform in all respects with applicable State and Federal laws and regulations (including ERISA, the Internal Revenue Code, State and securities laws and implementing regulations) and, to the extent that the Client has foreign operations, any applicable foreign laws and regulations. 12.4 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 12.5 Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, delivered by overnight delivery or delivered. by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by overnight delivery or hand, any such notice will be considered to have been given;when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address show on the signature page of Agreement. Either party may change its mailing address by notice as provided by this section. 12.6 Governing Law. The parties agree that this Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Washington. 12.7 Enforcement. In'the event that Gallagher shall successfully bring an action against the Client with respect to the enforcement, interpretation, or,breach of any provision of this Agreement, Client shall pay the amounts incurred by Gallagher with respect to such action, specifically including court costs, expenses and reasonable attorneys' fees. 12.8 Waiver. No waiver by Gallagher of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Gallagher of any right under this Agreement shall be construed as a waiver of any other right. Gallagher shall not be required to give notice to enforce strict adherence to all terms of this Agreement. 12.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Project Assignments and services undertaken by Gallagher for Client. In the event of any conflict between this Agreement and a Project Assignment, the Project Assignment shall control, but only with respect to the matters set forth therein. 12.1OCounterparts. This Agreement maybe executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. One or more counterparts of this Agreement may be delivered by facsimile, with such delivery having the same effect as delivery of an original counterpart. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date first written above. City of Bremerton, WA By: (.6 Patty Lent, 345 614 Street, Suite 600 Bremerton, WA 9w.7 Gallaghe Be ervices;-Ia — B Bruce Lawson P.O.13*32985 Phoenix, AZ 85064-2985 Project Assignment • Facilitated discussions with City leaders and management staff to confirm the City's compensation philosophy and strategy. • Development of proposed compensation study specifications for City review. • Conduct of market pricing of base compensation for a reasonable sample of City jobs through the use of a custom survey, supplemented by published data sources as appropriate, to collect data on pay practices and salary ranges to determine the competitiveness of salary. • Recommendations to strengthen the City's overall compensation program using the results of the compensation study and the review of compensation process. • Recommendations for methods to implement the findings of the study and options and direction, given costing scenarios. • Preparation of a report summarizing the work performed and recommendations throughout the entire process. • Transition plans for implementing the findings of the study. Our recommendations will take into consideration the culture and financial resources of the City. Project Fees I Study Initiation & Strategy $5,000 II Compensation Study $32,000 III Project Finalization & Presentation $5,000 TOTAL $42,000