1-Attachment B Contract Provisions.pdf

ATTACHMENT B

CONTRACT PROVISIONS

1. Most Favored Nations. Contractor warrants that if it has agreed to or hereafter agrees to a Consulting Fee with a client with substantially similar attributes and service requirements, and provides or will provide a lower Consulting Fee than that paid by the Pension Board, then such lower fee shall apply to the Pension Board.

2. Fiduciary and Investment Advisor Status. Contractor represents that it is duly registered and qualified as an investment advisor under applicable state or federal law, and that it will notify the Pension Board immediately if it fails to maintain such status. Contractor acknowledges that it is a "fiduciary" of ERS and OBRA under applicable law and would be considered so under the standards set forth in the Employee Retirement Income Security Act of 1974 ("ERISA") if ERS and OBRA were subject to ERISA.

3. Discharge of Duties. Contractor agrees that in performing the Services, it shall discharge its duties with the care, skill, prudence and diligence under the circumstance that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of the enterprise of like character and with like aims.

4. Disclosure. Contractor shall disclose to the Pension Board the existence of any relationship between Contractor and any investment manager, investment vehicle or broker-dealer that creates or may create a conflict of interest or places Contractor in a position which affects or could affect the independent professional judgment of Contractor in performing its duties under this Agreement.

5. Subject to Funds Availability. The Contract is subject to the appropriation and availability of Pension Board funds. In the event that the funds are not appropriated or are otherwise unavailable, the Pension Board reserves the right to terminate this Contract upon written notice to the Contractor. The Pension Board’s exercise of its right to terminate this Contract shall not constitute a breach of Contract by the Pension Board. Upon receipt of the written notice, the Contractor shall cease all work associated with the Contract. If the Pension Board terminates this Contract due to lack of funds availability, the Contractor shall be entitled to compensation for all conforming goods requested and accepted by the Pension Board and for all satisfactory and authorized services completed as of the termination date. Should the Pension Board exercise its right to terminate this Contract due to unavailability of funds, the Contractor shall have no right to recover from the Pension Board any actual, general, special, incidental, consequential, or any other damages of any description or amount.

6. Termination for Convenience. The Pension Board may terminate this Contract for convenience without cause for any reason. The Pension Board’s election to terminate this Contract for convenience shall be effective upon the ninety (90) days notice by the Pension Board and shall not be deemed a breach of contract by the Pension Board. The Contractor shall be entitled to compensation for all authorized services completed as of the termination date. In no event shall the Pension Board be liable to the Contractor for compensation for any service that has not been provided, nor shall the Contractor be relieved of any liability to the Pension Board for any damages or claims arising under this Contract.

7. Termination for Cause. If the Contractor fails to properly perform its obligations under this Contract in a timely or proper manner, or if the Contractor materially violates any terms of this Contract (“Breach Condition”), the Pension Board shall have the right to immediately terminate the Contract and withhold payments in excess of compensation for completed services. Notwithstanding the above, the Contractor shall not be relieved of liability to the Pension Board for damages sustained by virtue of any Breach Condition and the Pension Board may seek other remedies allowed at law or in equity for breach of this Contract.

8. Assignment and Subcontracting. The Contractor shall not assign this Contract or enter into a subcontract for any of the services provided under this Contract without the prior written approval of the Pension Board. Notwithstanding any use of the approved subcontractors, the Contractor shall be the prime contractor and responsible for compliance with all terms and conditions of this Contract. The Pension Board reserves the right to request additional information or impose additional terms and conditions before approving an assignment of this Contract in whole or in part or the use of subcontractors in fulfilling the Contractor’s obligations under this Contract.

9. Nondiscrimination. The Contractor hereby agrees, warrants, and assures that no person shall be excluded from participation in, be denied benefits of, or be otherwise subjected to discrimination in the performance of this Contract or in the employment practices of the Contractor on the grounds of handicap or disability, age, race, creed, color, religion, sex, national origin, sexual orientation, or any other classification protected by federal or state law. The Contractor shall, upon request, show proof of nondiscrimination.

10. Records. The Contractor shall maintain documentation for all charges under this Contract. The books, records, and documents of the Contractor, for work performed or money received under this Contract, shall be maintained for a period of five (5) full years from the date of the final payment and shall be subject to audit at any reasonable time and upon reasonable notice by the Pension Board. The financial statements shall be prepared in accordance with generally accepted accounting principles.

11. Monitoring. The Contractor’s activities conducted and records maintained pursuant to this Contract shall be subject to monitoring and evaluation by the Pension Board or their duly appointed representatives.

12. Strict Performance. Failure by any Party to this Contract to require, in any one or more cases, the strict performance of any of the terms, covenants, conditions, or provisions of this Contract shall not be construed as a waiver or relinquishment of any term, covenant, condition, or provision. No term or condition of this Contract shall be held to be waived, modified, or deleted except by a written amendment signed by the Parties.

13. Independent Contractor. The Parties shall not act as employees, partners, joint venturers, or associates of one another. The Parties are independent contracting entities. Nothing in this Contract shall be construed to create an employer/employee relationship or to allow either Party to exercise control or direction over the manner or method by which the other transacts its business affairs or provides its usual services. The employees or agents of one Party are not employees or agents of the other Party.

14. Limitation of Liability. The Pension Board shall have no liability except as specifically provided in this Contract. In no event will the Pension Board be liable to the Contractor or any other party for any lost revenues, lost profits, loss of business, decrease in the value of any securities or cash position, time, goodwill, or any indirect, special, incidental, punitive, exemplary or consequential damages of any nature, whether based on warranty, contract, statute, regulation, tort (including but not limited to negligence), or any other legal theory that may arise under this Contract or otherwise. The Pension Board’s total liability under this Contract (including any exhibits, schedules, amendments or other attachments to the Contract) or otherwise shall under no circumstances exceed the amount paid to Contractor under this Contract. This limitation of liability is cumulative and not per incident.

15. Hold Harmless. The Contractor agrees to indemnify and hold harmless the Pension Board, ERS and OBRA, as well as its officers, agents, and employees from and against any and all claims, liabilities, losses, and causes of action which may arise, accrue, or result to any person, firm, corporation, or other entity which may be injured or damaged as a result of acts, omissions, breach of contract or negligence on the part of the Contractor, its employees, or any person acting for or on its or their behalf relating to this Contract. The Contractor further agrees it shall be liable for the reasonable cost of attorneys’ fees, court costs, expert witness fees, and other litigation expenses for the Pension Board to enforce the terms of this Contract. In the event of any suit or claim, the Parties shall give each other immediate notice and provide all necessary assistance to respond. The failure of the Pension Board to give notice shall only relieve the Contractor of its obligations under this Section to the extent that the Contractor can demonstrate actual prejudice arising from the failure to give notice. This Section shall not grant the Contractor, through its attorneys, the right to represent the Pension Board, ERS or OBRA in any legal matter.

16. Debarment and Suspension. The Contractor certifies, to the best of its knowledge and belief, that it, its current and future principals, its current and future subcontractors and their principals:

a. are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department or agency;

b. have not within a three (3) year period preceding this Contract been convicted of, or had a civil judgment rendered against them from commission of fraud, or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or grant under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property;

c. are not presently indicted or otherwise criminally or civilly charged by a government entity (federal, state, or local) with commission of any of the offenses detailed in section b. of this certification; and

d. have not within a three (3) year period preceding this Contract had one or more public transactions (federal, state, or local) terminated for cause or default. The Contractor shall provide immediate written notice to the Pension Board if at any time it learns that there was an earlier failure to disclose information or that due to changed circumstances, its principals or the principals of its subcontractors are excluded, disqualified, or presently fall under any of the prohibitions of sections a-d.

17. Force Majeure. “Force Majeure Event” means fire, flood, earthquake, elements of nature or acts of God, wars, riots, civil disorders, rebellions or revolutions, acts of terrorism or any other similar cause beyond the reasonable control of the Party except to the extent that the non-performing Party is at fault in failing to prevent or causing the default or delay, and provided that the default or delay cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means. A strike, lockout or labor dispute shall not excuse either Party from its obligations under this Contract. Except as set forth in this Section, any failure or delay by a Party in the performance of its obligations under this Contract arising from a Force Majeure Event is not a default under this Contract or grounds for termination. The non-performing Party will be excused from performing those obligations directly affected by the Force Majeure Event, and only for as long as the Force Majeure Event continues, provided that the Party continues to use diligent, good faith efforts to resume performance without delay. The occurrence of a Force Majeure Event affecting Contractor’s representatives, suppliers, subcontractors, customers or business apart from this Contract is not a Force Majeure Event under this Contract. Contractor will promptly notify the Pension Board of any delay caused by a Force Majeure Event (to be confirmed in a written notice to the Pension Board within one (1) day of the inception of the delay) that a Force Majeure Event has occurred, and will describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event results in a delay in Contractor’s performance longer than forty-eight (48) hours, the Pension Board may, upon notice to Contractor: (a) cease payment of the fees for the affected obligations until Contractor resumes performance of the affected obligations; or (b) immediately terminate this Contract or any purchase order, in whole or in part, without further payment except for fees then due and payable. Contractor will not increase its charges under this Contract or charge the Pension Board any fees other than those provided for in this Contract as the result of a Force Majeure Event.

18. County, State, and Federal Compliance. The Contractor shall comply with all County, State and federal laws and regulations applicable to Contractor in the Contractor’s performance of this Contract.

19. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to its conflict or choice of law rules.

20. Confidentiality of Records. Strict standards of confidentiality of records and information shall be maintained in accordance with applicable county, state, and federal law. All material and information, regardless of form, medium or method of communication, provided to the Contractor by the Pension Board or acquired by the Contractor on behalf of the Pension Board that is regarded as confidential under county, state, or federal law shall be regarded as “Confidential Information.”

Nothing in this Section shall permit Contractor to disclose any Confidential Information, regardless of whether it has been disclosed or made available to the Contractor due to intentional or negligent actions or inactions of agents of the Pension Board or third parties. Confidential Information shall not be disclosed except as required or permitted under state or federal law. Contractor shall take all necessary steps to safeguard the confidentiality of such material or information in conformance with applicable state and federal law. The obligations set forth in this Section shall survive the termination of this Contract.

21. Public Records. Both parties understand that the Pension Board, ERS and OBRA are bound by the Wisconsin Public Records Law, and as such, all of the terms of this agreement are subject to and conditioned on the provisions of Wis. Stat.

§ 19.21, et seq. To the extent practicable, Contractor shall separate public and non-public information in its reports. Contractor hereby agrees that it shall assist the Pension Board in retaining and timely producing records that are subject to the Wisconsin Public Records Law upon any statutory request having been made and that any failure to do so shall constitute a material breach of this Agreement, whereupon Contractor shall then and in such event be obligated to indemnify, defend and hold the Pension Board, ERS and OBRA harmless from liability under the Wisconsin Public Records Law occasioned by such breach. Except as otherwise authorized by the Pension Board in writing, records that are subject to the Wisconsin Public Records Law shall be maintained for a period of three years after receipt of final payment under this Contract.

22. Integration. Contractor shall perform the services and deliver the work as set forth in the Contractor’s Proposal submitted in response to the Pension Board’s Request for Proposal dated ______.