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HomeMy WebLinkAboutR-2006-128 TALX Corporation AgreementRESOLUTION NO. R 2006 -128 A RESOLUTION authorizing and directing the City Manager to execute a professional services agreement with TALX Corporation for the provision of unemployment claim management services. WHEREAS, the City of Yakima desires to engage TALX. Corporation to provide professional services related to the administration of unemployment claims on an independent contractor basis; and WHEREAS, TALX Corporation has the experience and expertise necessary to provide said services and has been doing so for the City of Yakima since September 2003; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to enter into the attached Agreement with TALX Corporation for professional services related to unemployment claim management, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "Professional Services Agreement" with TALX Corporation for professional services related to the administration of unemployment claims. ADOPTED BY THE CITY COUNCIL this 5th day of September, 2006. ATTEST: I avid Edler, Mayor 02426 City of Yakima Chief Executive Officer 129 North Second Street Yakima, WA 98901-0000 Re: Termination of Contract Dear Chief Executive Officer: f TALX Corporation 11432 Lackland Road St. Louis, MO 63146 314-214-7000 314-214-7588 Fax www,talx.com 10/3/08 This is to inform you that, pursuant to a consent agreement between TALX Corporation ("TALX") and the Federal Trade Commission, TALX has agreed, under certain conditions, to allow many of its customers to terminate, on ninety (90) days notice, the customers' long term contracts for unemployment compensation management services. I direct your attention to Paragraph III. of the enclosed Decision and Order issued by the Federal Trade Commission ("Decision and Order"). If you have questions about whether, and to what extent, you are eligible to terminate your long term contract(s) with TALX, you may call 800-677-9031 for a consultation with the independent Monitor/Administrator appointed by the Federal Trade Commission in this matter. Neither the fact that you have consulted with the Monitor/Administrator nor the content of those consultations will be disclosed to TALX without your permission. Additional information concerning this matter can be found at the following Web address: http://www.talx.comlcontracts. Sincerely, William W. Canfield, President Enclosure PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement") is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter the "City"), and TALX Corporation, a Missouri corporation (hereinafter "TALX"), for the purpose of providing unemployment cost management services. WHEREAS, the City requires professional services related to the administration of unemployment claims WHEREAS, TALX represents that it has the experience and expertise necessary to perform the professional services required by the City in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and TALX as follows: 1. Scope of Services. TALX shall perform the following account, claims & hearings management services. Account Management: An Account Manager ("AM") will be assigned as the City's personal contact with TALX. The AM will be responsible for implementation and ongoing operation of the City's unemployment cost control program. The AM will: 1 Establish channels of communication between the City and TALX. 2. Prepare and distribute program/procedure guide, if required. 3 Provide management reports to identify potential liability, current charges, claims processed and reasons for separation. 4. Provide technical service bulletins concerning legislative changes. Claims Administration: TALX will administer the claim process and charge protests for all claims reported to TALX during the term of this agreement. 1. TALX will maintain databases pertaining to unemployment compensation claims, and will submit various reports and recommendations as described below. 2. TALX will be responsible for complete administration, inception to termination, of the processing of all the City's unemployment insurance claims in Washington State. 3. In addition to the processing of unemployment insurance claims, TALX will perform tasks, including, but not limited to: • Review of unemployment insurance claims for determination of eligibility; • Verification of the City's liability; • Conduct pre -hearing conferences with staff that the City designates. If the circumstances on a particular hearing warrant special care, a TALX hearing representative will be available to attend the hearing. • Benefit charges will be audited to final disposition of the charge. Endorsement Services: 1 In addition to the above services, TALX shall perform services described in any endorsement to this Agreement, subject to any applicable statutes, regulations and administrative rulings. At no time will TALX render or be required to render any services that could be interpreted as the practice of law or accountancy. 2. City's Responsibility. The City shall provide all information or data reasonably requested by TALX including, but not limited to (1) copies of quarterly charge statements, (2) claims, hearings, and benefit charge statements not sent directly to TALX by the state agencies, and (3) wage and separation information. 3. Term. This Agreement shall commence on September 1, 2006, and shall terminate on August 31, 2009, ("Initial Term"), unless the Agreement is earlier terminated by either party in accordance with Section 14. This Agreement shall automatically renew for successive one-year terms ("Successive Terms") unless either party provides the other with written notice of termination at least ninety (90) days preceding the ending of the Initial Term or the ending of any Successive Annual Term. 4. Compensation. a Fee for Services. The annual fee to be paid to TALX for the services rendered under this Agreement shall be Five Thousand and Forty Dollars ($5,040.00) per year, payable in equal quarterly installments of $1260. The annual fee will increase by three percent (3%) on each annual anniversary of the Effective Date. The assumption of claims workload is 130 annually A fee of $20.75 per claim will apply to claims exceeding 105% of the claims workload. b. Attendance at Hearings. TALX or a TALX representative will attend unemployment hearing with the City at no charge, up to 4 hearings per agreement year after which TALX or a TALX representative will attend unemployment hearings with the City for an additional fee of $225 per hearing. If TALX provides representation at an unemployment hearing by an attorney due to the City's request, an additional fee of $60 will be due to TALX. For unemployment hearings where attorney representation is a statutory requirement, the City will be responsible to pay a fee to TALX of $200 per hour billed, in quarter-hour increments. c. Satisfactory Services. All payments are expressly conditioned on TALX providing services that are satisfactory to the City d. Payment in the Event of Termination. In the event that either party terminates this Agreement under Section 16, TALX shall be compensated in accordance with the above terms for all satisfactory services provided to the City under this Agreement up to the effective termination date. e. Maintenance of Financial Records/Documents. When reasonably requested in writing to do so by City representatives, TALX shall make the cost records, accounts and related financial documents pertaining to this Agreement and solely to the services provided to the City available for inspection by City representatives during the term of this Agreement and for a period of three (3) years following the final payment to TALX by the City. In the event that any audit or inspection identifies any discrepancy in such financial records, TALX shall provide the City with appropriate clarification and/or financial adjustments within thirty (30) calendar days of notification of the discrepancy. 5. Additional Services. Additional services beyond the scope of this Agreement shall be negotiated and agreed to by all parties in the form of a contract amendment prior to implementation. 2 6. Status of TALX. TALX and the City understand and expressly agree that TALX is an independent contractor in the performance of each and every part of this Agreement. TALX, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the work/services required under this Agreement. Additionally, and as an independent contractor, TALX and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and/or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee or partnership between TALX and the City. 7. Taxes and Assessments. TALX shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement and such tax or assessment is TALX's sole obligation under this Agreement, TALX shall pay the same before it becomes due 8. Nondiscrimination Provision. During the performance of this Agreement, TALX shall not discriminate on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. 9. Compliance With Law. TALX warrants and agrees to perform all work/services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TALX MAKES NO OTHER WARRANTIES AS TO THE SERVICE OR THE DATA, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF TALX KNOWS OF SUCH PURPOSE. 10. No Insurance. It is understood the City does not maintain liability insurance for TALX and/or its employees, agents, officers, and subcontractors. 11. Indemnification and Hold Harmless. a. TALX agrees to protect, defend, indemnify, exonerate, and hold harmless the City, its elected officials, agents, officers, employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including attorneys' fees and disbursements) resulting from TALX's performance and/or nonperformance of this Agreement. b. In the event both TALX and the City are negligent, TALX's liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs, and expenses (including reasonable attorney's fees) that can be apportioned to TALX, its officers, employees, agents, and/or subcontractors. c. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. d. ANY OTHER TERM OR PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL EITHER PARTY OR ITS 3 OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE FOR LOSS OF PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE PERFORMANCE OF THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN NO EVENT SHALL DAMAGES OF ANY KIND PAYABLE BY EITHER PARTY HEREUNDER EXCEED THE THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000). 12. Insurance Provided by TALX. a. Commercial Liability Insurance. Before this Agreement is fully executed by the parties, TALX shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined with single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted.) Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected officials, officers, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent.) The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. b. Professional Liability Insurance. Before this Agreement is fully executed by the parties, TALX shall provide the City with a certificate of insurance as evidence of Professional Errors and Omissions Liability Insurance with coverage of at least One Million Dollars ($1,000,000 00) per occurrence and an annual aggregate limit of at least One Million Dollars ($1,000,000 00). The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company rated A -VII or higher in Best's Guide. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before the inception date of this Agreement, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Agreement and for a minimum of three (3) years following the termination of this Agreement. 13. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by TALX to any other person or entity without the prior written consent of the City, which consent shall not be unreasonably withheld or denied. In the event the assignment is necessitated by a business reorganization, either party may assign this Agreement, provided that they provide the other party with written notice. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of TALX stated herein 14. Termination. Either party may terminate this Agreement if the other party has materially breached the Agreement, provided that the party claiming breach must give the other party written notice and at least 30 days in which to cure the breach before terminating the Agreement. 15. No Conflict of Interest. TALX represents that it or its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. TALX further covenants that it will 4 not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 16. Non -Waiver. The waiver of either the City or TALX of the breach of any provision of this Agreement by the other party shall not operate and/or be construed as a wavier of any subsequent breach by either party or prevent either party thereafter enforcing such provision. 17. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 18. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 19. Integration. This Agreement sets forth all of the terms, conditions, and agreements of the parties relative to the subject matter hereof and supersedes the Professional Services Agreement between the parties, City Contract No. 2003-98, which is hereby declared terminated and of no further force and effect. This Agreement also supersedes any and all prior negotiations, discussions, and understandings between the parties as to the subject matter hereof. There are no terms, conditions, or agreements with respect thereto, except as herein provided and no amendment or modification of this Agreement shall be effective unless reduced to writing and executed by the parties. 20. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent to the parties to their addresses as follows. TO CITY: TO TALX. Sheryl Smith Human Resources Manager 129 North Second Street Yakima, WA 98901 Mike Andrews_ TALX 11432 Lackland Road St. Louis, MO 63146 or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 22. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 23. Confidentiality. The parties agree that the following will be treated as "Confidential Information". (i) all employment and income data ("Data") provided by or on behalf of Client to TALX, (ii) all information provided by TALX to City pertaining to the Services; and (iii) all information which is labeled as such in writing and prominently marked as "Confidential," "Proprietary" or words of similar meaning by either party. Except as required by law, including the Washington State Public Records Act (RCW 42.56), any Confidential Information acquired or received by either party in the course of this Agreement will not be disclosed or transferred to any person or entity other than to employees, elected officials, and other authorized 5 representatives of a party and, as to TALX, for the purpose of performing its obligations under, this Agreement. Confidential Information received under this Agreement will be treated with the same degree of care and security as each party uses with respect to its own Confidential Information, but not less than a reasonable degree of care. TALX agrees to use Confidential Information only for the purpose of performance of this Agreement and to make no copies except as necessary for performance of this Agreement. This Section shall survive the termination of this Agreement. 24. Proprietary Rights. Neither party's ownership rights, including but not limited to, any intellectual property rights in or used by TALX to perform the Services nor any intellectual property rights in or to the City's Data, shall be transferred pursuant to this Agreement. This Section shall survive termination of this Agreement. CITY OF YAKIMA TALX Corporation B R. A. Zais, Jr City Manager Date: 9- 8- o b City Contract No. .2006 -7"/ City Resolution No. o?DD(p /2 g By: �� Print Name: T. grirevivs Manager, CO?ltili@Q Ac1titpigt,r derr Title: Date: 6 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. I For Meeting Of 9/5/06 HEM 111LE: Legislation Authorizing the Execution of a Contract with the TALX Corporation for Unemployment Claims Management SUBMITTED BY: Sheryl M. Smith, Acting Human Resources Mana CONTACT PERSON/'TELEPHONE: Sheryl M. Smith, 575-6090 SUMMARY EXPLANATION: The City of Yakima is self insured for unemployment benefits and the attached resolution authorizes the execution of a contract with the TALX Corporation for continued unemployment claim management services. TALX will be responsible for account management, claims administration, benefit eligibility, and representation at protest hearings. The contract period shall be effective September 1, 2006 and the contract shall terminate on August 31, 2009. The agreement shall automatically renew for successive one-year terms unless either party provides the other with written notice of termination at least ninety (90) days preceding the ending of the initial term or the ending of any successive annual term. Compensation for these services shall be $5,040.00 annually payable in quarterly installments of $1,260.00. The annual fee will increase by 3.0% on each annual anniversary of the effective date. Resolution X Ordinance Contract X Other (Specify) Funding Source Unemployment Program 512 APPROVED FOR SUBMIT"1AL: City Manager STAFF RECOMMENDATION: Adopt resolution authorizing the execution of the contract with the TALX Corporation BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2006-128