MEMORANDUM OF AGREEMENT BETWEEN COUNTY OF …



MEMORANDUM OF AGREEMENT BETWEEN COUNTY OF ORANGE AND

ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM

FOR EMPLOYEE BENEFITS

WHEREAS, pursuant to California Government Code Section 31522.5, Orange County Employees Retirement System (OCERS) Board of Retirement has appointed an administrator, an assistant administrator, a chief investment officer, senior management employees next in line of authority to the chief investment officer, subordinate administrators, senior management employees next in line of authority to subordinate administrators, and legal counsel and upon appointment, persons occupying such positions become employees of OCERS; and

WHEREAS, OCERS desires to contract with the County of Orange (COUNTY) for the provision of employee benefits.

NOW, therefore, the parties hereto agree as follows:

PURPOSE

The purpose of this AGREEMENT is to provide for the provision of employee benefits for OCERS employees and to establish a mechanism for OCERS to compensate the COUNTY for such benefits and administrative services.

DURATION

OCERS will provide the County with a minimum notice of 90 days should it determine that it will no longer participate in the County’s Payroll System and/or benefits programs. Six (6) months notice is preferred to provide a smooth transition of the benefits from the County to new OCERS Benefits Administrator.

The County will provide OCERS with a minimum notice of 90 days should it determine that it will no longer provide employee benefits for OCERS employees. Six (6) months notice is preferred to provide a smooth transition of the benefits to a new OCERS Benefits Administrator.

Except as otherwise provided for herein, this AGREEMENT will remain in effect from the date of its execution by all parties until December 31, 2009. Either party may terminate this AGREEMENT earlier upon written notice of termination served by either party on the other no later than August 31, 2009, to be effective the immediately following December 31, 2009, or unless terminated for cause, as set forth below.

Should either party wish to extend this agreement beyond December 31, 2009, the party wishing to extend the term of this agreement shall notify the other party of its request no later than March 31, 2009. Such request to extend the term of this Agreement shall in no way obligate either party to agree to an extension or to any particular terms beyond December 31, 2009.

In addition to any other remedies or rights each may have by law, COUNTY and OCERS each shall have the right to terminate this AGREEMENT without penalty immediately for cause. Cause shall be defined as any material breach of this AGREEMENT, or any misrepresentation or fraud on the part of the other. Exercise by COUNTY or OCERS of its right to terminate the AGREEMENT shall relieve the terminating party of all further obligations from the date of termination forward.

In the event of termination by either party, both parties agree to make a prompt and efficient transition of any open case and records to allow any employee to continue to receive benefits without interruption. The party initiating the termination will pay the actual cost of claim transition. In no event will open claims be retained by COUNTY in the event of termination of this AGREEMENT. Further, any expense paid by COUNTY in claim payment or administration of claims for OCERS which is in excess of the annual charges paid by OCERS shall be paid by OCERS to COUNTY within 90 days of a final accounting and invoice by COUNTY.

TERMS

OCERS and the COUNTY mutually agree to the following:

a. For purposes of this AGREEMENT persons occupying the following positions at OCERS are OCERS' employees: Chief Executive Officer, Chief Investment Officer, Assistant CEO of External and Legal Operations, Assistant CEO of Internal Operations, Chief Financial Officer, Chief Legal Officer (General Counsel), Manager of Administration/Human Resources, Manager of Member Services Director, Finance Director, Investment Officer, Member Services Manager, Retirement Investment Analyst, Senior Internal Auditor, Administration/Human Resources Analyst, Public Relations Analyst, Attorney, and Senior Accountant Auditor II and any other positions or classifications as may be created by the Board of Retirement in accordance with the provisions of Government Code section 31522.5, upon (30) days notice to COUNTY.

b. Nothing in this AGREEMENT is intended to alter the terms and conditions of employment of either COUNTY employees assigned to work at OCERS or OCERS' employees.

SCOPE OF EMPLOYEE BENEFIT SERVICES

a. The COUNTY will administer employee benefits for OCERS' employees to the extent that the employee benefits package offered to OCERS employees is the same as that offered to COUNTY administrative and executive management employees, as the COUNTY benefits package may be changed from time to time.

b. COUNTY will notify OCERS of material changes in employee benefits, including changes in benefits levels and costs, when such changes are agendized for consideration by the Board of Supervisors.

c. COUNTY will charge OCERS for the cost of providing employee benefits at the same rate or cost as is charged COUNTY departments and COUNTY employees for the same benefits and services.

d. Reimbursement to the COUNTY for the cost of employee benefits will be through the COUNTY's payroll system.

e. OCERS will remain in the COUNTY payroll system for OCERS' employees so long as it is contracting with the COUNTY for the provision of employee benefits. The COUNTY will process payroll and maintain payroll records required to comply with applicable laws for both COUNTY employees assigned to OCERS and OCERS' employees, including all related payroll tax deposits and reports, and year-end issuance of W-2 forms.

COMPENSATION FOR SERVICES

OCERS agrees to compensate the COUNTY at the rates charged by COUNTY.

COUNTY agrees to charge OCERS in the same manner as charges are made to COUNTY Agencies and Departments. If OCERS disagrees with the amount charged, OCERS shall pay the full amount and shall notify the COUNTY of the dispute. COUNTY and OCERS agree that payment in full shall not constitute a waiver of OCERS' right to dispute the amount charged.

6. DELEGATION AND ASSIGNMENT

Neither party may delegate its obligations hereunder, either in whole or in part, without the prior written consent of the other party, provided, however, obligations undertaken by the COUNTY pursuant to this AGREEMENT may be carried out by means of subcontracts. OCERS may not assign its rights hereunder, either in whole or in part, without prior written consent of the COUNTY.

7. CHANGES/ADDENDUMS

Except as provide herein, neither party shall make changes to this AGREEMENT without the other party's written consent. Such changes shall be incorporated into an AGREEMENT ADDENDUM signed by the parties before becoming effective.

8. INDEMNIFICATION PROVISIONS

OCERS agrees to indemnify, defend with counsel approved in writing by COUNTY, and hold COUNTY, its elected and appointed officials, officers, employees, agents ("COUNTY INDEMNITEES") harmless from any claims, demands or liability of any kind or nature, including but not limited to personal injury or property damage, arising from or related to OCERS' acts or omissions in the performance of this AGREEMENT.

COUNTY agrees to indemnify, defend with counsel approved in writing by OCERS, and hold OCERS, its elected and appointed officials, officers, employees, agents ("OCERS' INDEMNITEES") harmless from any claims, demands or liability of any kind or nature, including but not limited to personal injury or property damage, arising from or related to COUNTY's acts or omissions in the performance of this AGREEMENT.

If judgment is entered against OCERS and COUNTY by a court of competent jurisdiction because of the concurrent active negligence of OCERS or OCERS' INDEMNITEES and COUNTY or COUNTY INDEMNITEES, OCERS and COUNTY agree that liability will be apportioned as determined by the court. Neither party shall request a jury apportionment.

NON-DISCRIMINATION

In the performance of this AGREEMENT, OCERS and COUNTY agree that they will comply with the requirements of Section 1735 of the California Labor Code and not engage nor permit any subcontractors to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. OCERS and COUNTY acknowledge that a violation of this provision by either party shall subject that party to all the penalties imposed for a violation of Section 1720 et seq. of the California Labor Code.

CONFIDENTIALITY

Except as required to carry out the terms of this AGREEMENT, OCERS agrees to maintain the confidentiality of all COUNTY and COUNTY-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this AGREEMENT. All such records and information shall be considered confidential and shall be kept confidential by OCERS and OCERS' staff; agents and employees. OCERS further agrees to maintain the confidentiality of any proprietary information made available to it by COUNTY in the course of performing obligations under this AGREEMENT unless COUNTY agrees in writing to its release, or pursuant to court order.

Except as required to carry out the terms of this AGREEMENT, COUNTY agrees to maintain the confidentiality of all OCERS and OCERS-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this AGREEMENT. All such records and information shall be considered confidential and shall be kept confidential by COUNTY and COUNTY' staff, agents and employees. COUNTY further agrees to maintain the confidentiality of any proprietary information made available to it by OCERS in the course of performing obligations under this AGREEMENT unless OCERS agrees in writing to its release, or pursuant to court order.

OCERS and COUNTY agree to comply with all applicable state and federal statutes and regulations regarding the confidentiality of medical information including the California Confidentiality of Medical Information Act (Civil Code sec. 56 et seq.) and the Health Insurance Portability and Accountability Act (Act Aug 21, 1996, P.L. 104-191).

NOTICE

Where required to be given under this AGREEMENT, notice shall be in writing and deemed given when delivered personally or deposited in the United States mail, postage prepaid, certified, addressed as follows:

OCERS: Chief Executive Officer

Orange County Employees Retirement System

2223 Wellington Avenue

Santa Ana, CA 92701

COUNTY: County Executive Officer

County of Orange

County Executive Office

Hall of Administration

10 Center Plaza, 3rd Floor

Santa Ana, CA 92701-4062

cc: Human Resources Director

Human Resources Department

Hall of Administration

10 Civic Center Plaza, 2nd Floor

Santa Ana, CA 92701-4062

WAIVER OF DEFAULT OR BREACH

Waiver of any default shall not be considered a waiver of any subsequent default. Waiver of any breach of any provision of this AGREEMENT shall not be considered a waiver of any subsequent breach. Waiver of any default or breach shall not be considered a modification of the terms of this AGREEMENT.

SEVERABILITY

If any term, covenant, condition or provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.

ENTIRE AGREEMENT

This AGREEMENT contains the entire and complete understanding of the parties and supersedes any and all other agreements, oral or written, with respect to the provision of administrative services under this AGREEMENT.

|DATED: __________________ |COUNTY OF ORANGE |

| | |

| | |

| |By: _______________________________________ |

| |Thomas G. Mauk, County Executive Officer |

| |County of Orange |

| | |

|DATED: __________________ |ORANGE COUNTY EMPLOYEES RETIREMENT SYSTEM |

| | |

| | |

| |By: _______________________________________ |

| |Steve Delaney, Chief Executive Officer |

| |Orange County Employees Retirement System |

|APPROVED AS TO FORM |BENJAMIN P. de MAYO, COUNTY COUNSEL |

|DATED: __________________ |and NIKHIL G. DAFTARY, Deputy |

| | |

| | |

| | |

| |By: _______________________________________ |

| |Nikhil G. Daftary. Deputy |

| |Attorneys for ORANGE COUNTY |

|APPROVED AS TO FORM |OFFICE OF GENERAL COUNSEL |

|DATED: ___________________ | |

| | |

| | |

| |By: _______________________________________ |

| |Julie Wyne, Esq. |

| |Attorney for Orange County Employees |

| |Retirement System |

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